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  

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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.   

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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  

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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,  

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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

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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

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“….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

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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

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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

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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

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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  

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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.    

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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  

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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)  

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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  

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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.

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