REPORTABLE

IN THE 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.

Vs.

Anita Anant Sawant ….Respondent

JUDGEMENT

R.M. LODHA,J.

Leave granted.

2. 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.

3. 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.

At the 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 – P.V.

Warik, 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.

The 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.

3
4. 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 arises.

5. 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.

(2) No suit under this section shall be brought –

(a) after the expiry of six months from the date

of dispossession; or

(b) against the Government.

(3) No 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.

(4) Nothing in this section shall bar any person

from suing to establish his title to such property
and to recover possession thereof.”

6. 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.

Nothing in this section shall bar any person from

suing to establish his title to such property and to recover
possession thereof.

No suit under this section shall be brought against

the Central Government or any State Government.

No 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. “

7. 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.

8. 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.

9. 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 maintainable.

10. 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.

11. In Nobin Das v. Kailash Chandra Dey6, the Division

Bench of Calcutta High Court held:

5
AIR 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.
When, 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…..”.

12. 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:

“There 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.
Mahomed Ali Khan Ibrahim Khan [1880] 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….”.

13. 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.

(7). 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”

(8). The 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”.

14. 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

following words:

“….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.
Supposing 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”.

15. 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 thereof”.
Section 9 is not confined only to those cases where the
plaintiff is in actual possession of the property in suit.
Whatever 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
the trespasser.

If the 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.
Under 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 the plaintiff.

Shivchand 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”.

16. 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.

13
17. 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.
The word “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…
…

`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 constructive
possession.”

18. 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:

“Right 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….

Right to 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….”.

19. 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.

What is 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.

20. 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.

The 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.

21. In the result, appeal fails and is dismissed with no order

as to costs.

.………………….J.
[P. SATHASIVAM]

……………..J.
[R.M. LODHA]

NEW DELHI
FEBRUARY 22, 2010.

18