Specific Relief Act, 1877- Suit under Section 9
Introduction
Specific Relief Act 1877 falls within the area of equity in civil courts. This act is a remedy where both parties have to fulfill their performance under a contract. Section 9 of The Specific Relief Act, 1877 deals with suit by person dispossessed of immoveable property. The provision of section 9 of The S.R.Act,1877 clearly provides that if a person who has without his consent, been dispossessed of immovable property otherwise than in due course of law, he or she is entitled to recover possession thereof by filling a suit. A plea of title is no defence in the suit and any decision that may be made in that suit will be subject to a title suit which may be eventually filed and the person who has title or even a better right shall be competent to ask for recovery of the property on establishment of such right.
Section 9 of the Specific Relief Act, 1877
Sec.9, Suit by person dispossessed of immovable property:
Who May Sue
Under this section any person, who is dispossessed without his consent of immovable property, otherwise than in due course of law or any person claiming through him may by suit recover possession thereof. The question as to how the plaintiff came in to possession cannot be gone in to this proceedings. Where a mother and son were forcible ejected from room in their possession, and the father was at the time living in a different house, the latter was not entitled to institute a suit for restoration of possession, if the person actually dispossessed were not willing to sue. If a person has entered in to possession peacefully although he has no title to it and is dispossessed by another person, he became entitled under section 9 of The S.R.Act, 1877 to sue such other person for restoration of possession. The position is however different where a person entered in to possession on behalf of another person, and when his possession became wrongful the entitled to immediate possession dispossessed him. Thus if a person who has been deputed to look after a piece of property goes in to possession wrongfully and in subsequently dispossessed by the true owner, he cannot take the benefit of this section to dispossess the true owner.
Dispossession without Consent
Section 9 of the Specific Relief Act, 1877 provides a summary procedure for grant of relief to persons dispossessed from immovable properties without their consent. In such a case vital condition is that plaintiff must be dispossessed of property without his consent, otherwise than in due course of law. Onus to prove is on the plaintiff, it is to be noted that consent although obtained without an aspect of force or duress, by obtained by the practicing deceit, trick or misrepresentation deliberately was no consent in the eye of law of the purpose of this section. This section comes in to operation only for a limited purpose and cannot be invoked unless plaintiffs are deprived of actual possession; it has nothing to do with title.
In other words, before a person can come under section 9 of the Act he has to show that he has actual physical possession of the immovable property from which he was dispossessed without his consent by the defendant within six months prior to the institution of the suit. It follows that if the suit is to enforce a right to possession where there has been no actual dispossession because the plaintiff had not come in to possession the section does not apply. Similarly where the defendant is not in possession rightly or wrongly on the date of the suit; the suit by the plaintiff merely for injunction restraining the defendant from entering in to possession and not for the recovery of possession would not lie.
Other Remedies not Barred
Under section 9 of The S.R.Act,1877 a person disposed without his consent of immovable property may by suit recover possession thereof within six months of his dispossession. It is discretionary with him to file or file suit for the recovery of possession under section 9 of the Act. When a person is dispossessed against his consent, two remedies are open to him, these are-
The remedy under section 9 is an additional remedy and does not prohibit suit for possession on possessory title in the ordinary way in a proper case even though the suit is brought beyond the six months. Section 9 is not intended to abridge any rights possessed by a plaintiff; it rather gives him the right to have possession restored without reference to the title on which he holds and that which the dispossessors asserts. Every interference with immovable property does not amount to dispossession of the person in possession. Acts of user which do not interfere, and are consistent with purpose for which the owner intends to devote the land, do not amount to discontinuance of possession by him.
Therefore the mare act of passing over the land of the plaintiff by other persons, does not give him a cause of action under this section because such an act does not amount to his dispossession. Thus interference with the right of lessee to collect cow-dung and grass from specific plots though by itself may not amount to dispossession from immovable property within the meaning of section 9, yet if the lessee is actually thrown of the lands concerned by force, then it would certainly amount to dispossession from the land in dispute. Section 9 of The S. R. Act requires legal possession and the owner who re-enters without delay has in law never lost possession. Unlawfully trespassing on property is a continuing wrong and the cause of action arises each time the owner is resisted.
Nature of Possession
In a suit under section 9, an inquiry in to the nature of possession is often necessary, and when necessary, the best way to ascertain the nature of possession is to enquire in to the question of title. It is true that the trail court is not concerned with the determination of title, but it is certainly competent to go in to the question of title in order to ascertain the nature of parties possession. The signature of a decree for possession obtained in a suit filed under section 9 is that it cannot be said that the decree is no evidence of title.
The word possession includes actual possession or possession in fact, as well as constrictive possession or possession in law. Therefore to bring an action under this section the possession that is required is not actual physical possession of the petitioner. It is enough if the plaintiff can show that either he was in constrictive possession of the property or that had the power of using the property, as and when, he deemed it necessary to do so. The possession of a servant or, for the matter of that of appointee for the benefit and on behalf of the master or the person appointing, is really in possession of the latter.
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Where a person purchases land, from another but is resist on the first attempt to obtain possession, there is no possession and dispossession. Merely leaving a plough and manure on the land would not constitute enduring possession which alone deserves protection under the section. The possession required under the section must beat least excusable possession, where the purchaser of occupancy fields remained in undisturbed possession for four years and was then dispossessed. It was held that the possession in excusable one and a suit lies under section 9.
Constructive Possession
Constructive goes with title. There is no reason to give such a restricted interpretation to the section as to confine its operation only to cases in which the plaintiffs have been deprived of only actual physical possession. So long a person has the power to bring the property into use whenever he likes he will be deemed to be in possession for the purpose of this section. Possession which is constructive in nature can also be established in appropriate circumstances in an action under this section. Therefore a mortgagee in possession through his tenants is entitled to invoke the aid of section 9 on his tenants being ejected from possession from others. Even where the title of the plaintiff is defective, he can sue under section 9.Thus a usufructuary mortgagee holding under an invalid mortgage deed cannot sue for possession on title but he can do so under section 9 of The S. R. Act, 1877.
Possession of the plaintiff as a monthly tenant was the constructive possession of her landlord. If such monthly tenant allows some one as sub-lessee to enter into possession of the leased shop by infracting the terms of the lease, and without the consent of the landlord, the possession of such sub-lessee cannot be termed to be the constructive possession of the tenant for purpose of a suit under section 9 of The Specific Relief Act.
Immovable Property
Generally the definition of immovable property given in General Clauses Act, 1897 section 3 (25) should be applied to the expression used in section 9. According to section 3(25) of the General Clauses Act, 1897.
Immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
Where the property is only an incorporeal right which is an immovable property under section 3 (25), General Clauses Act, 1897 this section would not apply. Thus though a right of way and a hereditary priesthood is regarded as immovable property, yet they are not immovable property for the purpose of this section. Where the plaintiff’s right to collect cow-dung and grass from the land leased to him is only interfered with there is no dispossession. But if he has been forcibly dispossessed from the land itself he can maintain a suit under section 9 of The S. R. Act.
Relief Which May be Granted
Generally the Court can grant relief only by way of restoration of possession. Section 9 does not empower the Court to direct the defendant to remove structures erected by him or to permit the plaintiff to pull them down. Therefore and order under section 9 which allows the plaintiff to remove the house built on land by the defendant is beyond the jurisdiction of a Court under the section inasmuch as under that section a court cannot do more than make an order with respect to the possession of land. Decree for recovery of possession by demolishing structures thereon is illegal but decree for recovery of possession after removal of structures is legal.
If a person is dispossessed from his land by another who subsequently makes a construction covering the entire land in that case if it is found that the plaintiff was dispossessed and he filled the suit within 6 months of his dispossession then a decree for recovering of possession in his favour can be given either with the structures constructed by the defendant there in or without the structures by removing the same after demolition.
Section 9 of The S. R. Act speaks of dispossession from immovable property and recovery of possession there in. Vacant land as well as land with structures there in is immovable property. If the plaintiff is given recovery of possession with the structure made by the defendant then it will be doing injustice to the defendant as plaintiff has no right to the structures constructed by the defendant. So the order for recovery of possession of the plaintiff and directing the defendant to remove the structures cannot be said to be illegal with the maintaining of this section 9 of The S. R. Act.
Appeal and Review
The last part of section 9 clearly prohibits and appeal from any order or decree passed in any suit instituted under this section. Order on such incompetent appeal would be without jurisdiction and thus not binding. An order dismissing a suit for restoration of possession for non-payment or court-fee which trial Court required plaintiff to pay was not appeasable. However, any order passed under Order XL, Rule I, Civil Procedure Code, 1908, or any other provision of law would not be termed as an order passed under section 9, and appeal against such order would be competent. Where an incompetent appeal was filed under this section and Additional District Judge not only entertained the incompetent appeal but also heard it on merits and then dismissed it, Notice was issued by High Court to the Add. District Judge to show cause as to why he may not be made personally liable to pay all the costs which may have been incurred by the parties in moving his Court and contesting an untenable appeal wherein he had called upon the opposite-party to enter appearance.
Limitation
To maintain a suit under this section the plaintiff must have had possession and subsequently he must have been dispossessed and the suit must have been instituted within 6 months of dispossession, otherwise it will be barred according to Article 3 of The Limitation Act. However, a suit could be filed beyond six months of dispossession by the one who was dispossessed, irrespective of title, but such remedy under section 8 would be against trespassers alone.
Conclusion
Section 9 of The Specific Relief Act, 1877 is a summary procedure, under this section the court will determine that the plaintiff was in possession, he has been dispossessed by the defendant from the immovable property, such dispossession took place without the consent of plaintiff and otherwise than in due course of law and such suit has to be filed within six months from the date of dispossession. Neither any appeal nor review shall lie from any order or decree passed in such suit. Only revision is applicable in such suit. No suit shall be brought against the Government. In a suit under section 9 question of title is irrelevant. This section is concerned with physical possession as well as constructive possession but not with title. So, this section is a safe guard to a person who is in actual possession.
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