Shyama Sawant(D) Th: LRS & Ors. Vs. Anita Anant Sawant  INSC 138 (22
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1930 OF
2010 [Arising out of SLP [C] No. 10418 of 2008] Sadashiv Shyama Sawant [D] ....
Appellants Through L.Rs., & Ors.
Anant Sawant ....Respondent JUDGEMENT R.M. LODHA,J.
The main question for consideration in this appeal by special
leave is: where a tenant in exclusive possession is dispossessed forcibly by a
person other than landlord, can landlord maintain suit under Section 6 of Specific Relief Act, 1963 against such
person for immediate possession. The incidental question is, whether tenant is
a necessary party in such suit.
Smt. Anita Anant Sawant - the sole respondent filed a suit for
possession under Section 6 of the Specific Relief Act, 1963 (for short `the Act') in respect of portion of property
being Gram Panchayat House No. 97 situated on land bearing Gat No. 1, Hissa No.
61, Village Ambet, Taluka Mahasala, District Raigad, against the appellants and
their predecessors-in-title (hereinafter referred to as `the contesting
defendants') and one Smt. Nanibai Shankar Sawant, since deceased, (hereinafter
referred to as `defendant no. 4'). The plaintiff averred in the plaint that she
purchased the entire house No. 97 from defendant no. 4 by registered sale deed
on October 1, 1981.
time of purchase, part of house No. 97 was in possession of Pandurang Vichare
who vacated that portion and she came into possession of entire house. Later
on, she let out southern side one room along with hall adjacent to Padavi and
northern side room of hall (for short `suit property') to one P.V. Warik. On
October 1, 1988, the contesting defendants forcibly dispossessed the tenant -
threw away his articles and took possession of the suit 2 property. The
plaintiff, thus, prayed for recovery of possession of the suit property of
which her tenant was forcibly dispossessed. The contesting defendants filed
written statement and traversed plaintiff's claim by stating that suit property
was joint family property and defendant no. 4 had no authority to sell the said
house to the plaintiff.
contesting defendants, thus, claimed that they were co-owners and in possession
of the entire house No. 97. Defendant No. 4 set up the plea that no
consideration was paid to her for the sale of house No. 97 and that sale deed
was obtained by fraud. It transpires, on the basis of the pleadings of the
parties, the trial court framed as many as six issues, including that of title
to property although such issue was unnecessary. The trial court, after
recording the evidence and hearing the parties, held that plaintiff was able to
prove her dispossession on October 1, 1988 by the contesting defendants from
the suit property and that she could maintain the suit under Section 6 of the
Act against the contesting defendants as she was in possession through a tenant
over the suit property. The trial court, accordingly, vide its judgment and
decree dated July 31, 2001, directed the contesting defendants to handover the
possession of the suit property to the plaintiff.
The contesting defendants challenged the judgment and decree of
the trial court by filing revision application before the High Court of
Judicature at Bombay. It may be noticed here that defendant no. 4 had already
died during the pendency of suit and her legal representatives were brought on
record, but later on they were deleted from array of parties in the revision
application. Inter alia, the contention raised before the High Court was that
if the tenant of the plaintiff was forcibly dispossessed, the suit under
Section 6 of the Act could be filed by the tenant and not by the landlady. The
High Court did not accept the contention of the contesting defendants and held
that in view of the language of Section 6 of the Act, either the tenant who was
actually dispossessed or the plaintiff being landlady could file the suit. The
High Court, thus, by its judgment dated March 28, 2008 dismissed the revision
application. It is from this judgment that the present appeal by special leave
Section 6 of the Act reads as under:- "6.- Suit by person
dispossessed of immovable property.- (1) If any person is dispossessed without
4 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.
suit under this section shall be brought - (a) after the expiry of six months
from the date of dispossession; or (b) against the Government.
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.
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 (for short, `1877 Act'). 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,
5 recover possession thereof, notwithstanding any other title that may be set
up in such suit.
in this section shall bar any person from suing to establish his title to such
property and to recover possession thereof.
under this section shall be brought against the Central Government or any State
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 others1, 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 Servai2 and Mohideen
Ravuther v. Jayarama Aiyar3.
The Division Bench of Additional Judicial Commissioners, Nagpur,
in Ramchandra v. Sambashiv4, on a question referred to it 1 AIR 1926 Madras 18
2 (1898) 21 Madras 288 3 (1921) 44 Madras 937 4 AIR 1928 Nagpur 313 6 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) Basavayya5, 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
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 Dey6, the Division Bench of
Calcutta High Court held:
1934 Madras 558 6 (1910) Vol. VII Indian Cases 924 7 "....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.
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 others7 stated the legal position with reference to
Section 9 of 1877 Act thus:
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.
Ali Khan Ibrahim Khan  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 7 AIR 1929 Bombay 467 8 injury to the reversion in
respect of which the plaintiff can sue in his own name....".
In Sailesh Kumar and another v. Rama Devi8, the Division Bench of
Patna High Court answered the question, whether a landlord can maintain a suit
under Section 9 of the 1877 Act against trespasser for immediate possession
when, at the date of dispossession, the house was in occupation of a tenant
entitled to its exclusive use, in affirmative. The Division Bench considered
the matter thus:- "(6). Mr. P.B. Ganguly, appearing in support of this
application, contended that the plaintiff's suit under S.9 of the Specific Relief Act
was not maintainable, as she could not sue for possession, the actual
possession having been with defendants 5 and 6 who were the tenants of the
house. In support of his contention, he placed reliance on the cases of `SITA
RAM v. RAM LAL', 18 All 440 and `VEERASWAMI v. VENKATACHALA', AIR 1926 Mad 18.
It is sufficient to state that the Allahabad case was not one under Section 9
of the Specific Relief Act, and it is beside the
point in issue before us. The Madras case, however, supports the contention.
That case is a single Judge case, and it appears that in the Madras High Court
there are conflicting decisions on the point.
Section 9 of the Specific
Relief Act is as follows:- "If any person is
dispossessed without his consent of immoveable property otherwise than in due
course of law, he 8 AIR 1952 Patna 339 9 or any person claiming through him
may, by suit, recover possession thereof, notwithstanding any other title that
may be set up in such suit"
contrary view was taken in the cases of `JADU NATH SINGH v. BISHUNATH SINGH',
1950 All LJ 288 & `RATANLAL GHELABHAI v. AMARSINGH RUPSANG', 53 Bom 773. I
respectfully agree with the view expressed in these cases. I am of opinion that
there is nothing to bar a landlord from suing a trespasser under S. 9, Specific Relief Act, for possession even when at the date of dispossession the
property is in occupation of a tenant entitled to possession".
In the case of Gobind Ram Jamna Dass v. Mst. Mewa w/o Parbhati9,
the Division Bench of Pepsu High Court relied upon the decision of Patna High
Court in Sailesh Kumar8 and did not follow decision of Madras High Court in
Veeraswami Mudali1. 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
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 9 AIR 1953 Pepsu 188 10
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.
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 another10 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 10 AIR 1958 Rajasthan 287 11 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
is not confined only to those cases where the plaintiff is in actual possession
of the property in suit.
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
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.
these circumstances to my mind the plaintiff was 12 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
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.
In Halsbury's Laws of England (Fourth Edition, page 617 - para
1111), `physical and legal possession' is distinguished as under:
`Possession' is a word of ambiguous meaning, and its legal senses do not
coincide with the popular sense. In English law it may be treated not merely as
a physical condition protected by ownership, but as a right in itself.
"possession" may mean effective, physical or manual control, or
occupation, evidenced by some outward act, sometimes called de facto possession
or detention as distinct from a legal right to possession...
may mean legal possession: that possession which is recognized and protected as
such by law. The elements normally characteristic of legal possession are an
intention of possessing together with that amount of occupation or control of
the entire subject matter of which it is practically capable and which is
sufficient for practical purposes to exclude strangers from interfering. Thus,
legal possession is ordinarily associated with de facto possession; but legal
possession may exist without de facto possession, and de facto possession is
not always regarded as possession in law. A person who, although having no de
facto possession, is deemed to have possession in law is sometimes said to have
Pollock and Wright in their classic work, `An Essay on Possession
in the Common Law' (1888 Edition, page 27) explained the nature of possession,
inter alia, as follows:
to possess or to have legal possession. This includes the right to physical
possession. It can exist 14 apart from both physical and legal possession; it
is, for example, that which remains to a rightful possessor immediately after
he has been wrongfully dispossessed. It is a normal incident of ownership or
property, and the name of `property' is often given to it....
possess, when separated from possession, is often called `constructive
possession.' The correct use of the term would seem to be coextensive with and
limited to those cases where a person entitled to possess is (or was) allowed
the same remedies as if he had really been in possession....".
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 15 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.
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 view of Calcutta High Court that
where the tenant was forcibly ejected from the land by the third party, it may
reasonably be held that landlord has also been dispossessed is the correct
view. We find ourselves in agreement with the view of Bombay, Patna, Pepsu and
Rajasthan High Courts and hold, as it must be, that there is nothing in Section
6 of the Act to bar a landlord from suing a trespasser in possession even when,
at the date of dispossession, the property is in actual occupation of a tenant
entitled to possession. The views expressed by Madras High Court in Veeraswami
Mudali1 and (Kanneganti) 16 Ramamanemma5 and by Nagpur Judicial Commissioner in
the case of Ramchandra4 do not lay down the correct law.
Now we advert to the incidental question whether in such a suit,
tenant is a necessary party. Section 6 of the Act provides that suit to recover
possession under the said provision could be filed by the person who is
dispossessed or any person claiming through him.
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. The view of Bombay High Court
in Ratanlal Ghelabhai7 that landlord can sue in his own name where there is an
injury to the reversion exposits the correct position of law.
It may be
desirable that a landlord in a suit under Section 6 of the Act against a
trespasser for immediate possession when, at the date of dispossession, the
house was in occupation of a tenant, impleads the tenant, but his
non-impleadment is not fatal to the maintainability of 17 such suit. The view
of Madras High Court in (Kanneganti) Ramamanemma5 and of other High Courts
following that view do not appear to us as laying down correct law.
In the result, appeal fails and is dismissed with no order as to
.......................J. [P. SATHASIVAM]
.................J. [R.M. LODHA]
FEBRUARY 22, 2010.