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Badri Das And Ors. vs Mt. Dhanni And Anr.

High Court Of Judicature at Allahabad|24 January, 1934


ORDER Kendall, J.
1. This is an application for the revision of an order of the learned Munsif of Hathras, giving the plaintiff a decree under Section 9, Specific Belief Act,. 1877. The plaintiff-opposite-party sued for recovery of possession of a house which had been dedicated by his father-in-law for charitable purposes, and of which he was the manager alleging that the defendants-applicants had conspired together to dispossess him and had done so towards the end of October 1932, and the defence was that the plaintiff had no right to possession as the house was public property. One of the witnesses for the plaintiff stated that the plaintiff had given the defendants-applicants permission to occupy the house for a religious function, and they afterwards refused to vacate it. Whether the Court accepted this as a finding of fact is not quite clear, but the reasoning in the judgment is that, supposing this is to be the case, the plaintiff was still in constructive possession through the defendants when permission had been given and until restoration was refused, and that the refusal by the defendants to restore possession amounted to an interruption of the plaintiff's constructive possession; and the Court has therefore given the plaintiff a decree.
2. It is argued in support of this application by Mr. Aziz that even if the plaintiff can be held to have been in constructive possession, as the lower Court has found, he has no right to relief under Section 9, Specific Relief Act, and reference has been made to a decision of a Bench of this Court in the case of Murlidhar v. Jainti Prasad A.I.R. 1932 All. 703 in which it was held that the trial Court had acted without jurisdiction or at any rate with material irregularity in decreeing the plaintiff's claim under Section 9. The Cases are however quite different. In the reported case the plaint did not set up a case that could be properly entertained under Section 9, whereas it is admitted that the plaint in the present case, which alleged the plaintiff's possession and an act of illegal dispossession by the defendants, was certainly on the face of it maintainable under Section 9. For the rest, Mr. Aziz has relied on a number of rulings which go to show that where the owner of property has given possession to a tenant and there has been a trespass on the possession of the property, it is sometimes doubtful whether relief under the Act should properly be sought by the owner of the land or by the tenant; such cases are Veeraswami Mudali v. P.R. Venkatachala Mudali A.I.R. 1926 Mad. 18, Ram Chandra v. Sambashiv A.I.R. 1928 Nag. 313, Ratanlal Ghelabhai v. Amarsing Rupsing A.I.R. 1929 Bom. 467 and Nihal Singh v. Baghuraj Bahadur Singh A.I.R. 1916 Oudh 19. It has been pointed out by Mr. P.L. Banerji on the other side that the case set up by the defendants in the written statement is quite inconsistent with that accepted by the Judge, that the defendants never admitted the plaintiff's possession with the period of limitation, nor did they ever suggest that they had entered into possession of the property with the permission of the plaintiff and that it is highly improper at this stage for the defendants to apply in revision to the High Court on the basis of a finding that is inconsistent with their pleadings.
3. In my opinion, this is clearly not a case in which the Court should interfere under Section 115, Civil P.C. Even if it be accepted that the trial Court has found that the defendants obtained possession in the way mentioned by one of the plain tiff's witnesses and not in the way alleged in the plaint, we are confronted with the further decisions that the plaintiff was still in constructive possession of the property and that the defendants' refusal to restore possession amounted to a trespass on that constructive possession. The questions of whether the decisions of the trial Court on these points are right or not are questions of fact and law and they may be right or wrong, but the decisions in themselves are not direct questions of jurisdiction or any of the similar questions, that would render the case open to revision under Section 115. It has been argued by Mr. Aziz that the result of the finding is that the Court believed that it had jurisdiction and therefore wrongly passed a decree, which is really without jurisdiction. It might however similarly be argued that a Court, which passed a decree based on the provisions of any Act of the legislature and which depended on a finding of fact or law which was erroneous was acting without jurisdiction, or in other words practically every finding would become open to revision under Section 115. I have already distinguished the case of Murlidhar v. Jainti Prasad A.I.R. 1932 All. 703. In the case of Jwala v. Ganga Prasad (1908) 30 All. 331 it was held by the Bench of this Court that when a suit under Section 9, Specific Belief Act, is decreed, the remedy of the defendant lies not in revision but in the institution of a suit for a declaration of the defendants's title and for possession, and a similar view was taken in the case of Ram Kishan Das v. Jai Kishan Das (1911) 33 All. 647 where the plaintiff's suit had been dismissed by' the trial Court. If I may say so with respect I am entirely in agreement with these pronouncements of law and I therefore dismiss the application with costs.
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Badri Das And Ors. vs Mt. Dhanni And Anr.


High Court Of Judicature at Allahabad

24 January, 1934