Authored By : Banerjee, Robert Fulton Rampini

Banerjee and Robert Fulton Rampini, JJ.

1. This appeal arises out of a suit brought by the plaintiffrespondent to recover possession of a plot of land, on his jamai right, thatis, his right as tenant thereof, as well as on a title acquired by twelveyears adverse possession.

2. The question for decision is, whether the plaintiff isentitled to a decree merely upon proof of previous possession for a period lessthan twelve years, on the ground that the defendant has established no title,the suit having been brought more than six months after the date of dispossession.That question was raised in the Courts below. The first Court answered it inthe negative, and dismissed the suit. The Lower Appellate Court, on appeal bythe plaintiff has answered the question in the affirmative and given theplaintiff a decree.

3. In second appeal it is contended that this view is wrongin law; and in support of the contention urged on behalf of the defendantsappellants the cases of Ertaza Hossein v. Bany Mistry (1882) I.L.R. 9 Cal.,130; Debi Churn Boido v. Issur Chunder Manjee (1882) I.L.R., 9 Cal. 39 [LQ/CalHC/1882/9 ;] ">9 Cal. 39 [LQ/CalHC/1882/9 ;] [LQ/CalHC/1882/9 ;] ;Purmeshur Chowdhry v. Brijo Lall Chowdhry (1889) I.L.R. 17 Cal. 256; ShamaChurn Boy v. Abdul Kabeer (3 p. W.N. 158), and Wise v. Ameerunnissakhatoon, have been relied upon; while, on the other side, thecases of Enaetoollah Chowdhry v. Kishen Soondur Surma (1867) 8 W.R., 386,Mohabeer Pershad Singh v. Mohabeer Singh I.L.R (1881) 7 Cal. 591, and IsmailAriff v. Mahomed Ghous I.L.R (1893) Cal. 834:I L.R., 20 IndAp, 99, have beencited as supporting the judgment of the Lower Appellate Court.

4. The cases of Enaetoollah Chowdhry v. Kishen Soondur Surma(1867) 8 W.R. 386, and Mohabeer Pershad Singh v. Mohabeer Singh I.L.R. (1881) 7Cal., 591, no doubt support the respondents contention; but the case of IsmailAriff v. Mahomed Ghous (1893) I.L.R. 20 Cal. 834: IL.R. 20 IndAp 99, is quitedistinguishable from the present case. If that were not so, thennotwithstanding that a different view is taken in the more recent decisions ofthis Court, we should have been bound to follow the decision in that case, itbeing a decision of the Privy Council. Now the distinction between the case ofIsmail Ariff v. Mahomed Ghous I.L.R(1893) 20 Cal. 834: IL.R. 20 IndAp 99, andthe present case is this. There the plaintiff was in possession when he broughthis suit, whereas in the present case the plaintiff is out of possession. Whatthe plaintiff asked for in the case of Ismail Ariff v. Mahomed Ghous was adecree declaring his right, and an injunction restraining the defendant fromdisturbing his possession; what the plaintiff asks for in this case is onlyrecovery of possession; and what was said by their Lordships of the JudicialCommittee with reference to the plaintiffs right to obtain this relief is tobe found in the following passage of their judgment: "It appears to theirLordships that there is here a misapprehension of the nature of the plaintiffscase upon the facts stated in the judgment. The possession of the plaintiff wassufficient evidence of title as owner against the defendant. By Section 9 ofthe Specific Relief Act (I of 1877), if the plaintiff had been dispossessedotherwise than in due course of law, he could by a suit instituted within sixmonths from the date of the dispossession, have recovered possession, notwithstandingany other title that might be set up in such suit. If he could thus recoverpossession from a person who might be able to prove a title, it is certainlyright and just that he should be able, against a person who has no title and isa mere wrong-doer, to obtain a declaration of title as owner, and an injunctionto restrain the wrong-doer from interfering with his possession." Thisshows, as we understand the judgment, that the reason for their Lordshipsdecision was this: that as the plaintiff, had his position been renderedsomewhat worse by his being dispossessed, could, by instituting a suit withinsix months for recovery of possession under Section 9 of the Specific ReliefAct, have recovered possession even as against a person who might establish abetter title, it was only right and just that if he brought his suit before hewas dispossessed he should be declared entitled to retain possession as againsta mere wrong-doer, and should obtain an injunction restraining the wrong-doerfrom interfering with his possession. But, though that was so in the case of aplaintiff who was in possession, and had, therefore, a possibility open to himof being restored to possession upon mere proof of possession, by instituting asuit under Section 9 of the Specific Relief Act upon being dispossessed, itdoes not follow that it should be so in the case of a plaintiff who had been inpossession, and allowed more than six months to elapse after his dispossession,and therefore lost the possibility of recovering possession, by a suit underSection 9 of the Specific Relief Act, upon mere proof of previous possession.The case of Ismail Ariff v. Mahomed Ghous I.L.R. (1893) 20 Cal. 834: IL.R., 20IndAp, 99, does not, therefore, in our opinion, help the plaintiff in thiscase.

5. Then as regards the cases in this Court which have beencited by the plaintiff respondent, they have been regarded in the laterdecisions of this Court as practically overruled by the decision of the PrivyCouncil in Wise v. Ameerunnissa Khatoon IL.R (1879) 7 IndAp 73. In this lastmentioned case their Lordships observe: "It is quite clear that theplaintiffs have failed to make out a title. The defendants were put intopossession by the Government, who were entitled to the lands, and they were orderedby the Magistrate under the Code of Criminal Procedure to be retained inpossession. If the plaintiffs had wished to contend that the defendants hadbeen wrongfully put into possession, and that the plaintiffs were entitled torecover on the strength of their previous possession, without entering into thequestion of title at all, they ought to have brought their action within sixmonths, under Section 15 of Act XIV of 1859; but they did not do so"; andthen their Lordships add: "The High Court with reference to this point say(and in their Lordships opinion, correctly say): Further, de facto possessionhaving been given to the defendants under Section 318 of the Code of CriminalProcedure, in accordance with the Deputy Collectors award, the plaintiff willnot be entitled to a decree until and unless he can show a better title tothese lands than the defendants. The fact that the plaintiffs possession asregards B, C and D was confirmed under Act IV of 1840, and that the defendantsNos. 2 and 3 unsuccessfully endeavoured to disturb them by regular suit, doesnot bar the right of Government. Section 2 of Act IV of 1840 only affectspersons concerned in the dispute. If Kalkini had belonged to a privateindividual he might have reduced into his own possession lands which hadaccreted to the estate, and which undoubtedly were his. But lands to which heis unable to make out a title cannot be recovered on the ground of previouspossession merely, except in a suit under Section 15 of Act IV of 1859, whichmust be brought within six months from the time of that dispossession. "

6. Following these observations of their Lordships of thePrivy Council, this Court in the cases of Ertaza Hossein v. Bany Mistry I.L.R(1882) . 9 Cal. 130; Debi Churn Boido v. Issur Chunder Manjee I.L.R. (1882) 9Cal. 39; and Purmeshur Chowdhry v. Brijo Lall Choudhry, I.L.R (.1889) 17 Cal.256, has held that a plaintiff in a suit for possession brought more than sixmonths after his dispossession, is not entitled to possession, merely uponproof, of previous possession short of possession for the statutory period oftwelves years which can give a title by adverse possession; and the last casecited for the appellant, namely Shama Churn Boy v. Abdul Kabeer, 3 C.W.N., 158,(sic) takes the same view, and distinguishes suits for recovery of possession(sic) that class of cases which the Privy Council had to consider in the caseof Ismail Ariff v. Mahomed Ghous I.L.R (1893) . 20 Cal. 834: IL.R. 20 IndAp 99.The weight of authority is therefore clearly in favour of the view contendedfor by the learned Vakil for the appellant. That being so, it is not necessaryfor us to go into the matter any further. If it were necessary to give reasonsin support of this view, we should say that in a suit to recover possessionbrought more than six months after the date of dispossession, the plaintiffmust prove title, and mere previous possession for any period short of thestatutory period of twelve years cannot be sufficient for the purpose, because,if that were so, anomalous results might arise; and it would be difficult todetermine what should be the relative durations of possession of the plaintiffand the defendant to entitle the former to a decree. For take a case like this:A plaintiff whilst in possession, which had lasted for eight years, isdispossessed by the defendant, and does not bring his suit until after sevenyears. Why should eight years possession of the plaintiff entitle him to adecree against the defendant, whose possession, though originating it may be inforce, was allowed to continue for seven years peaceably Or, again, theperiods may be reversed; and a plaintiff who was in possession for seven yearsmay be dispossessed, and may not bring his suit until after eight years. Thesedifficulties and anomalies must arise unless we accept the view contended forby Babu Saroda Charan Mitter on behalf of the appellant. It is true Section 9of the Specific Relief Act does not expressly prohibit a person from recoveringpossession upon mere proof of previous possession in a suit brought more thansix months after dispossession; but the inclination of our minds is, that if aperson wishes to recover possession merely upon proof of previous possession,without proof of any title, the remedy prescribed for him is to be found inSection 9 of the Specific Belief Act. If he does not avail himself of thatremedy by bringing a suit within six months, it becomes barred.

7. The result is, that this appeal must be allowed, and thedecree of the Lower Appellate Court be set aside and that of the first Courtrestored and affirmed, with costs in this Court and the Court below.

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