S.C. Ghose, J.

1. The facts of this case, so far as they are necessary tobe mentioned for the purposes of the rule before us, are these: There is acertain property which is occupied by a number of ryots. The plaintiff allegesthat he was in constructive possession of this property by receipt of rent fromthe ryots, but that, on a certain day, the defendant induced them todiscontinue paying their rent to the plaintiff and to pay it instead to him,the defendant. The plaintiff, thereupon, brought the present action underSection 9 of the Specific Belief Act for the purpose of recovering possessionof the said property from the defendant.

2. The Munsif has held that this suit does not fall withinthe scope of Section 9 of that Act, and has accordingly dismissed it. Thatsection runs thus: "If any person is dispossessed without his consent ofImmovable property otherwise than in due course of law, he or any personclaiming through him may, by suit instituted within six months from the date ofthe dispossession, recover possession thereof, notwithstanding any other titlethat may be set up in such suit."

3. The learned vakil for the petitioner contends that hisclient was the party in possession of this property, and that the only mode inwhich that possession could, in the circumstances, be enjoyed was by receipt ofrent, and that, when the ryots discontinued paying him rent and paid the sameto the defendant, he was practically dispossessed within the meaning of Section9, and that he was, therefore, entitled to maintain the present suit; and herelied upon certain remarks made by Sir Richard Couch in the case of In re Sutherland9 B.L.R. 229.

4. What Sir Richard Couch was called upon to determine inthat case was as to the meaning of the word "possession" in Section318 of Act XXV of 1861, and he held that if a person was in possession of aproperty through his servant, or if he was in possession through royts payingrent to him directly, that would be a possession within the meaning of thatsection; and, if a dispute with regard to such possession arose before theCriminal Court, that Court would have jurisdiction to take cognizance of it.

5. But the question that we have to consider in the presentcase is a wholly different one. What we have to determine, is whether theplaintiff has been dispossessed, without his consent, of the property indispute within the meaning of Section 9 of the Specific Belief Act.

6. According to the plaintiffs own case the actualpossession of the property was with the ryots, and the only way in whichpossession was enjoyed by him was by receipt of rent from those ryots. Now, ifhe was in the receipt and enjoyment of the rents from the ryots, the merediscontinuance of the payment of that rent would not constitute a dispossessionwithout his consent within the meaning of the Specific Belief Act, for he mightvery well bring a civil action against the ryots for the recovery of the rent;and the mere fact of the defendant having persuaded the ryots to pay to him therent, said to be due to the plaintiff, would be no answer to the claim.Therefore it appears to us that the plaintiff was not dispossessed against hisconsent so as to entitle him to maintain the action.

7. It appears to us that the real object of the Legislaturein engrafting this section into the Specific Belief Act was to provide a speedyremedy for that class of oases where a person in physical possession ofproperty is forcibly dispossessed from it against his will and consent. It isnot the plaintiffs case that the ryots have been dispossessed ; his case isthat the ryots are still in occupation of the property. If they had beendispossessed they might have maintained a suit for recovery of possession; andin certain circumstances he might himself bring such a suit. But they are inpossession and, as I said before, the mere non-payment of the rent by themcannot be taken to be a dispossession of the plaintiff without his consent.

8. Reference was made to Sections 2 and 4 of Act IV of 1840and Section 15 of Act XIV of 1859. We have considered those enactments; and weobserve that the language of Section 4, Act IV of 1840, is very different fromthat of Section 15, Act XIV of 1859, and of Section 9 of the Specific BeliefAct, so far as the particular point before us is concerned. It seems to usthat, notwithstanding what might have been laid down in Section 4 of Act IV of1840, the Legislature, when it promulgated the Specific Relief Act, did notintend to provide that, where a person was not in actual possession ofproperty, but only in constructive possession of it by receipt of rent fromryots, and those ryots continued in occupation of that property, a suit by thelandlord might be brought under the Specific Relief Act for recovery ofpossession by reason of discontinuance by the ryots to pay him rent.

9. For these reasons we think that this rule must bedischarged with costs.

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Tarini Mohun Mozumdar vs. Gunga Prosod Chuckerbutty(15.06.1887 - CALHC)