Section 6 of the Specific Relief Act, provides legal provisions for the legal remedy to the person who was dispossessed forcibly from his possession.
Section 6 reads as thus:
“6.- Suit by person dispossessed of immovable property. –
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought –
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”
Section 6 corresponds to Section 9 of the repealed Specific Relief Act, 1877. The question whether a landlord can sue a trespasser for immediate possession where his tenant has been dispossessed has come up for consideration before various High Courts with reference to Section 9 of the 1877 Act.
Section 9 of the 1877 Act is in these terms: –
“9. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against the Central Government or any State Government. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. “
In Veeraswami Mudali v. P.R. Venkatachala Mudali and others, it was held by the Madras High Court that the trespasser could not interfere with landlord’s right to receive rent and a decree to be put into possession of the rents, but so long as landlord did not himself possess the right to enjoy physical possession, he could not eject the trespasser under Section 9. While holding so, the Single Judge of Madras High Court relied upon previous decisions of that Court in Ramanadhan Chetti v. Pulikutti Servai and Mohideen Ravuther v. Jayarama Aiyar.
The Division Bench of Additional Judicial Commissioners, Nagpur, in Ramchandra v. Sambashiv, on a question referred to it under Section 113 of Code of Civil Procedure, held that a landlord cannot sue under Section 9 to recover possession of the land because he was not in possession of it and was not dispossessed of it.
In (Kanneganti) Ramamanemma v. (Kanneganti) Basavayya, a Single Judge of the Madras High Court held that a suit by landlord for possession under Section 9 in which the tenant in possession had not joined, is not maintainable.
Contrary to the aforesaid view of the Madras High Court and Nagpur Judicial Commissioner, the High Courts of Calcutta, Bombay, Patna, Pepsu and Rajasthan have taken the view that a landlord can maintain a suit under Section 9 of the 1877 Act to recover possession where his tenant in exclusive possession has been dispossessed forcibly by the act of a third party.
In Nobin Das v. Kailash Chandra Dey, the Division Bench of Calcutta High Court held:
“….In the case before us, the plaintiff was originally in actual possession of the land. He was at that stage entitled to use the property in any way he chose. He settled the land with tenants. The result was, not that he was deprived of his possession, but that the mode in which he held possession of the property was altered. His tenants came into physical possession of the land and he held possession thereafter by receipt of rent from them.
When, therefore, his tenants were forcibly ejected from the land by the defendants, it may reasonably be held that he also was dispossessed. The case before us is further strengthened by the additional fact that the tenants, after they had been evicted, relinquished the land in favour of the plaintiff so that the plaintiff thereafter became entitled to have physical possession of the land. Under these circumstances, we hold that the plaintiff was dispossessed within the meaning of section 9 of the Specific Relief Act when his tenants were evicted from the land by the defendant…..”.
The Division Bench of Bombay High Court in Ratanlal Ghelabhai v. Amarsing Rupsing and others stated the legal position with reference to Section 9 of 1877 Act thus:
“There is nothing in this section to show that possession is confined to actual physical possession. In the case of a landlord and tenant the landlord is in possession through his tenant and, as pointed out in Nirjivandas Madhavdas v. Mahomed Ali Khan Ibrahim Khan [1880] 5 Bom. 208], the proper remedy where exclusive occupation of immovable property is given to a tenant is for the tenant to file a suit for possession but the landlord, if he desires to sue immediately on the possessory right, can sue in the name of the tenant and further, for an injury to the reversion, the landlord can sue in his own name. The injury in the present instance consists in a denial of the plaintiff’s title to the land for defendant 1 has taken possession of it claiming it to be his. I think, therefore, that there is an AIR 1929 Bombay 467 injury to the reversion in respect of which the plaintiff can sue in his own name….”
In the case of Gobind Ram Jamna Dass v. Mst. Mewa w/o Parbhati, the Division Bench of Pepsu High Court held that possession of the tenant can be considered to be the possession of the landlord for the purposes of Section 9. The Division Bench expressed its opinion in the following words:
“….The word used in S. 9 is `dispossessed’. There is nothing in this section to show that the possession is confined only to actual physical possession. I am, therefore, of the opinion that a suit is competent by the landlord, even if he is not in actual physical possession of the land but in its possession through a tenant at the time of illegal dispossession. This conclusion is further strengthened by the words “he or any person claiming through him may, by suit, recover possession thereof” used in the section.
The language of this section, therefore, clearly indicates that besides the person dispossessed, any person claiming through him can seek his remedy provided in this section for the recovery of possession. It necessarily follows that the person seeking relief under S. 9 need not himself be in actual physical possession of the property.
A contrary view to this will defeat the aims and objects of this enactment. Supposing a landlord is incompetent to sue and his tenant who is dispossessed refuses to institute a suit under S. 9 of the Act, the landlord would be put in a very awkward situation and would be forced to file a regular suit. In such a case a wrong-doer will naturally be placed in an advantageous position. To accept this position it would be putting a premium on a wrong act of trespasser. This position, in my opinion, is not contemplated by the relevant legislation.
On the other hand S.9 provides for a speedy and summary remedy to recover possession taken away by unlawful means. The object of the legislation, besides this, is to place the parties in their original position. Trespasser, if he so likes, can bring a regular suit to prove his title. A contrary construction, in my opinion, would result in protracted litigation for persons ousted from lawful possession by unlawful means on the part of a trespasser”.
The Single Judge of Rajasthan High Court in Raghuvar Dayal v. Hargovind and another was concerned with the question, whether suit for possession under Section 9 of the 1877 Act can be brought by a landlord even when the property is in possession of the tenant. The Single Judge followed the afore-referred decisions of AIR 1958 Rajasthan 287 Bombay, Pepsu and Patna High Courts and reiterated the legal position as follows:-
“(18). On a careful consideration of the wordings of S. 9 of the Act, I am of opinion that the ruling in which it has been held that the suit for possession u/s 9 of the Act can be brought by a landlord also even when the property is in possession of the tenant have taken a correct view of the provisions of S. 9. The words used are “dispossessed” and “recover possession thereof”.
In Sadashiv Shyama Sawant(D) Through Legal Representatives vs Anita Anant Sawant (2010), The Supreme Court held that,
Section 9 is not confined only to those cases where the plaintiff is in actual possession of the property in suit. Whatever possession the plaintiff has at the date of dispossession, he is entitled to claim in case of dispossession. If a tenant is in possession of the property and being dispossessed therefrom does not care to bring a suit for possession of the property, the landlord cannot be shut off from bringing a suit against the trespasser.
If the tenant has a mind to remain in possession of the property on behalf of the landlord, the landlord will put him in actual possession of the property. If, however, the tenant has no mind to stick to the land, the landlord is entitled to get actual possession of the property from the trespasser. Of course, it would be proper to make the tenant also a party to the suit. He may either join as a co-plaintiff or in case he refuses to join as a co-plaintiff he may be made a defendant so that he might have his say in the matter.
In this case the tenant has also been made a defendant. I may say here that in this particular case according to the finding of the learned Civil Judge with which I have no reason to disagree, the tenant had put Raghuvar Dayal defendant in possession of the property in collusion with him. This Reghuvardayal filed a suit for ejectment and the tenant entered into a compromise and suffered a compromise decree for ejectment being passed against him. In execution of that decree Shivchand tenant was dispossessed. Under these circumstances to my mind the plaintiff was entitled to actual possession of the property in dispute and the defendant Reghuvardayal who came into possession of that property certainly interfered with the possession of the plaintiff.
Shivchand tenant had no interest in the possession of the property in dispute under the circumstances of the case and the only persons interested in possession thereof was the plaintiff. I cannot therefore find any fault with the decree of the lower Court awarding possession to the plaintiff.”
As noticed above, the views of the High Courts differ about maintainability of suit for possession by the landlord under Section 9 of 1877 Act in respect of property let out to the tenant who has been dispossessed forcibly by a third party. That language of Section 6(1) of the Act and first paragraph of Section 9 of 1877 Act is exactly identical admits of no doubt. The key words in Section 6(1) are “dispossessed” and “he or any person claiming through him”. A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes.
A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word “dispossessed” in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant).
Similarly, the expression “any person claiming through him” would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant.
The tenant having lost the possession though without his consent to a third party, may not be interested in recovery of possession. He may not be available. He may not like to involve himself in litigation. In such circumstances, if a landlord brings the suit to recover possession against trespasser under Section 6, it cannot be laid down as an absolute proposition that tenant must necessarily be impleaded as party to such suit.”