Rules and practice of english law

Suit under section 9 of The Specific Relief Act, 1877

INTRODUCTION The Specific Relief Act, 1877 is based on the rules and practice of English Law. The sections of this Act, both as to substantive law and practice should be interpreted in the light of the principles recognized by the English courts. If there is an express divergence, the Act will be strictly add here to whatever may be the English law on point. It follows that whatever the Act does not deal specifically with any matter it is permissible to refer to English law. Such cases have to be governed by the ordinary rules of justice, equity and good conscience.

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,1877clearly lays down that if a person who has without his consent, been dispossessed of immovable property otherwise than in due course of law, he 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.

There was no scope of converting the suit under section 9 of The S. R. Act, 1877 in to a miscellaneous proceeding and this section does not authorize the court to order for demolishing or removing permanent structures standing in the suit land while effecting restoration of possession. But decree for recovery of possession after removal of structure is legal.

Article 3 of The Limitation Act, 1908 tells a suit under section 9 of The S. R. Act, 1877 has to be filed within six months from the date of dispossession.

SECTION 9 OF THE SPECIFIC RELIEF ACT, 1877 Sec.9: Suit by person dispossessed of immovable property If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him, by suit recover possession thereof, notwithstanding any other title that may 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 and No suit under this section shall be brought against the 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 orders or decree be allowed. 1

SCOPE AND OBJECT 1

The Specific Relief Act,1877[1 of 1877]

The object of section 9 of The Specific Relief Act, 1877 is to discourage citizens from taking law in to their own hands, however good their title may be. Section 9 of the Act has been enacted to prevent persons from evicting men from possession except through due process of law. It is a section the object of which is to derive a person who wants to dispossess person and prevent him from going with high a hand and dispossessing such person. This section is more then a reproduction of the provisions of “Roman Law” by which the proctor was entitled to restore possession to a person forcibly dispossessed. The question, therefore, in a case under section 9 of The S.R.Act, 1877 is whether a person while in physical possession of an immovable property has been dispossessed of the same other wise than in due course of law and if so dispossessed he can be restored to such possession under the decree of the court if the suit is instituted within the period of stipulated in the section which is six months from the date of dispossession2.

Section 9 of the S.R.Act, 1877 provides a procedure who are dispossessed from immovable property without consent or without lawful authority and except in due course of law. Under this provision the court is not competent to decide the title of the property. It only relates to possession of immovable property, if the plaintiff had been illegally dispossessed then section 9 could be invoked. The plaintiff should establish that he was actually in physical possession of the immovable property from which he had been illegally dispossessed without his consent. In an ordinary suit for possession if the plaintiff succeeds in establishing his title as well as possession, he is bound to succeed. Even if he unable to prove his title he can succeed on the basis of prior possession alone. In such a suit, the title of both the parties can be brought in issue and can be considered by the court. Title is not material in a suit falling under section 9 and any person who has been dispossessed, otherwise than in due course of law, can without pleading or proving title, seek to be rein ducted in to possession even though such a relief was sought against true owner of property himself.

Under this section the suit is only maintainable by virtue of prior possession. Therefore the plaint must aver only previous possession and dispossession by defendant otherwise than in due course of law within six months of the suit, and the decree must either dismiss the suit or order the plaintiffs to be put in to possession by defendants. Such decree is based on previous possession and dispossession merely and not on title. It follows that where the plaintiff bases his claim to possession on title, the suit would not fall under this section 9, but affords a conclusive defence in ordinary suit on title.

However, the court is not justified in refusing to give relief merely because the plaintiff has mentioned his title apparently to explain his possession. The suit does not be come a title suit because of this.

Possession is good title against all but the true owner and entitles the possessor to maintain an action in ejectment against all persons, except the true owner, who might dispossess him. He can therefore avail himself of the remedy under section 9 another trespasser.

In a suit under section 9 of the Specific Relief Act, 1877 the plaintiff is to prove……..that he (plaintiff) was in possession; that he (plaintiff) has been disposed, i.e., deprived of actual physical possession of land. That the dispossession took place without his consent that it was done otherwise than in due course of law that the dispossession took place within six months before institution of the suit under section 93.

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 there of. The question as to how the plaintiff came in to possession can not be gone in to this proceedings. Where a mother and son were forcible ejected from room in their possession, and 2 3

Delwar Hossain Khan v Amzad Hossain and others 19 BLD 523 Sona Mia v Prokash AIR 1940 (Cal) 464;

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 can not 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 element 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 can not 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 there of 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 He may file suit for the recovery of property through summary procedure within six(6) months under section 9 of The S.R.Act,1877 He may file a suit for the recovery there of within twelve (12) years of his dispossession.

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.

Dispossession involves an animus possidendi with the intention of excluding the owner as well as other people.

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 9is that it can not 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 deputee or appointee for the benefit and on behalf of the master or the person deputing and appointing, is really in possession of the latter. Where the plaintiff appointed a pujari of a thakur bari, defrayed the expense of worship, repaired the building and had the key of the door of the thakurgarh with him. It was held the possession of the plaintiff was such physical possession s to attract the operation of section 9, notwithstanding that the thakur bari as a residence of deity, was open to the public.

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.

Trespasser A decree under section 9 can be passed when it is prove that the plaintiff was dispossessed from the property in dispute by the defendant otherwise than in due course of law, within six months of the institution of the suit and that in such a case the court has no jurisdiction to go in to the question of the title of parties and can only determine whether defendant trespassed in the property in dispute within six months of the filling of the suit. This section says nothing about the nature of the possession enjoyed by the person dispossessed, although it may well be that a suit under section can be maintained by a person who is manifestly a trespasser and whose possession is of a very short duration. Save in those cases where the nature of the possession of the plaintiff is clearly is such as to result in a proceeding under section 9defeating the purpose of that section, the title of the plaintiff is no more to be enquired into than that of the defendant.

A trespasser can bring a suit for summary remedy under section 9 in a civil court, because even mere possession is converted by prescription in to a right of ownership, it is in itself a right which protected and remedies for the person dispossessed are provided under section 9 and 42 of the Specific Relief Act, 1877. Possession of a tenant who has ceased to be a tenant is protected by statute; he is not a trespasser. If the land lord deprived him from possession otherwise than in due course of law, he may sue the land lord for recovery of possession under sec. 9.But where a tenant voluntarily vacated premises; his entry without permission of land lord would be illegal and can be evicted under this section.

Where a shop was demolished and re-constructed, before competition of re construction, tenant reoccupied such shop without consent or permission of the land lord. Land lord ‘s suit to recover possession was decreed and it was held that tenant’s plea that land lord had given him undertaking to re let him the shop would be of no avail as such undertaking if any, had to be fulfilled after reconstruction was complete. Similarly while tenant could not force his own reinstatement in a constructed property without consent of owner landlords on the basis of allege agreement of subletting to another person.

A person can not be denied to have recourse to the provisions of Sec. 9 merely because he has permitted another person to temporarily use the premises for a specific or limited purpose. I such cases he still continues to be in possession of the same, though the actual and physical possession may be with another person.

Where a license has given possession to a third person, and the latter is dispossessed, the licensee may move the court under this section for restoration of possession.

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. There fore 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 can not 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 can not be termed to be the constructive possession of the tenant for purpose of a suit under section 9 of The Specific Relief Act.4 Licensee A licensee of land if dispossessed by a trespasser can sue under section 9.Where the plaintiff had possession over a piece of land, on which they cattle troughs and platform. The defendant unlawfully removed cattle troughs and platform and took possession of the land by building over it. It was held that though the plaintiff only a licensee had sufficient possessory to maintain action for possession of land and removal of buildings.

Where A was entrusted by B to look after a certain plot of land during his absence from the country.

B’s occupation is not such possession as to entitle him to a remedy under section 9 of The S. R. Act, against A for and on whose behalf he had been holding the plot.

DUE COURSE OF LAW-MEANING Words “otherwise than in due course of law” in section 9 of The Specific Relief Act, 1877 are not synonymous with the word “illegally”.

The phrase due course of law means the regular, normal process and effect of the law operating on a matter which has been laid before a court for adjudication. It do not mean that the party against whom a suit or recovery of possession is field must, in due course of law, be in possession as a result of the 4

Jebun Nessa Zaman vs Hosne Ara Lili 53 DLR 394

proceedings between the same parties, that is the plaintiff and the defendant or their agents or with whom they have priority. In order to bar a suit under section 9 of The Specific Relief Act, 1877, it is not necessary that the possession in due course of law must be possession as a result of the proceedings between the parties themselves. 5 There may be and can be cases where a person is dispossessed, otherwise than in due course of law, as when the dispossession is through fraud or a trick. In such a case the dispossession would not be forcible. Where an objection petition was filed by a stranger to execution of decree on the ground that he in fact was the owner o the property in question and decree in process of execution had been rendered without impleading him as a party to suit. It was held that the decision rendered or passed by court under section 9, being tentative in nature was designed to restore possession of ousted party quickly and without determining title of parties.

Due course of law means normal effect of law, where a man has been dispossessed through court having jurisdiction even though process adopted is objectionable.

Dispossession by legal process which ought not to have been applied is not dispossession in due course of law within section 9 of The S. R. Act, 1877. A certificate officer has no jurisdiction to given kash possession of premises sold in auction but occupied by a tenant. Therefore, if dispossession of a tenant is effected by that means, it would not be a dispossession in due course of law, and the possession of the tenant could be restored under section 9. Similarly the possession of the property obtain through the medium of an officer of the court not authorized to act in that direction will be a dispossession caused without his consent of the person in control of the property and otherwise than in due course of law.

LANDLORD AND TENANT By settling the land with tenants a landlord is not deprived of possession but he only alters the mode in which he holds possession. Therefore where his tenant in dispossessed, a landlord can bring a suit under this section. Thus a suit to recover possession of the property when the property itself was under the cultivation of a bargadar is clearly maintainable by his principal in view of the fact that a dispossession of such a bargadar is the dispossession of the landlord himself. If a tenant is, in possession of the property and being dispossessed there from 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 on recovering possession 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.

How Suit May Be Brought Where a tenant in exclusive possession is dispossessed, the proper remedy for the tenant is to sue for possession and for the landlord, if he so desires to sue immediately on possessory right, to sue in the name of the tenant, but if the tenant refuses to join or there is injury to reversion, the landlord can sue in his own name. If a tenant has a mind to secure possession of the property and joins the landlord as a co-plaintiff or files a suit independently of the landlord, he would certainly be entitled, except in the case of termination of his tenancy before the decree, to actual possession while the decree in favour of the landlord may be that of formal possession, But in cases where the tenant has no intention to get back the possession of the property or his tenancy itself stands terminated, the landlord cannot be kept back from securing the actual possession of the property from the trespasser.

In such a case it would be proper that the tenant is also made a co-plaintiff in the suit. In case the tenant refuses to join as a co-plaintiff, he should be added as a defendant. But the tenant is not a 5

Abdur Rahman vs Mofizuddin Bhuiya 7 DLR 335

necessary party and therefore the non-impleading of the tenant is not fatal to the suit. Where no objection to the suit was taken by the opposite party in his written statement on the ground, of nonimpleading of the tenant by the landlord, he cannot subsequently non-suit the landlord by raising such objection, and therefore non-impleading of the tenant would not be fatal to the suit. Possession under the landlord though under an invalid lease, can enable a person to recover his property against the trespasser.

Landlord Dispossessing Tenant Where the respondents entered into possession as a lessee but were dispossessed. For invoking jurisdiction under this section they had to show that their first entry on the immovable property was legal. As their possession is that of lessees, the leasehold rights were continuing on the day of dispossession, either under a contractual tenancy or statutory tenancy. Even after the tenancy has been validly terminated, and they are dispossessed without their consent and in an unlawful manner, while they were holding over, they have got a right to file a suit under section 9 for restoration of possession to them, Where a defendant admitted plaintiff as a tenant in his written statement that plaintiff had voluntarily handed over possession of shop to him which burden defendant failed to discharge.

Plaintiff’s deposition on oath that he was forcibly dispossessed would stand proved in absence of evidence to the contrary by the defendant.

Where as a result of collusion between the agent of the tenant and the landlord. the landlord gets possession of the leased property, it is the tenant who is dispossessed of the property without his consent and otherwise than in due course of law. In such a case the tenant is entitled to bring a suit under section 9 in his won name. And the mere fact that the tenant has a remedy by way of a suit for compensation against his agent does not mean that he is incompetent to bring a suit under section 9, if he is otherwise entitled to do so. Where the landlord got the tenant evicted by collusion with the Municipal Engineer who got the premises vacated on the plea that the premises where in a dangerous condition and were to be demolished. But only first floor was demolished and the possession of the ground floor was given to the landlord. It was held that although the power to get premises vacated was available to the Municipality but looking to the circumstances of the case the exercise of this power was a fraud on the statute. Any action taken mala fide under the cloak of law cannot be treated as in due course of law in order to debar an aggrieved person from seeking relief under section 9, and the tenant was entitled to recover possession under that provision of law. But where the respondent has been in illegal occupation of petitioner’s legally allotted house since 1960. without any payment of rent to him, he cannot be allowed to take shelter in legal technicalities to defeat the intent and purpose of the law, and he is expected to come with clean hands to expect equitable relief from Courts.

CO-OWNERS If a co-sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed there from by another co-sharer except by bringing a suit for partition of the joint property. Even in case of joint khata of agricultural land, where one co-sharer cultivates one field and other co-sharers cultivate other fields, no co-sharer can dispossess the other against his will, from the field of which he had the possession. A co-owner in exclusive possession, if dispossessed by other co-owners within 6 months, can sue under the section. It may well be that a joint owner of property is still on the date of suit under section 9, entitled to the property and would be given possession in a suit properly instituted for that purpose. But nevertheless it is open to one coowner of property to oust the others and to obtain exclusive possession for himself.

The title of others may not be extinguished when this is done, but if that ouster took place more than 6 months before the institution of the suit under section 9, then for the purpose of section 9, that ouster would hold good. Where in a suit under this section exclusive possession is decreed in favour of a cosharer and subsequently a suit is filed for declaration of title and for recovery of possession by other

co-sharers, the declaration of title may e given but no decree for joint possession can be given and in the absence of relief of partition, the plaintiff may be relegated to separate action.

JOINT POSSESSION A person in joint possession of immovable property is as much in possession of that property as a person who is in exclusive possession and if the person who was in joint possession is dispossessed, he can sue to be restored to that possession which he enjoyed before he was dispossessed. In case the defendant shows equal right with the plaintiff, he will be entitled to joint possession; but on formers showing better title, the latter would have no right to possession.

MASTER AND SERVANT A court has no jurisdiction to entertain a suit under section 9 by a servant against his master, because the person in actual occupation, who is a servant, depute or appointee of another, holds the property for such other person. His occupation is the occupation of the master, or the person deputing or appointing him. Section 9 of the Specific Relief Act, provides a summary procedure for grant of relief to persons dispossessed from immovable properties without their consent. The purpose of this section is to discourage forcible dispossession. Where there has been no forcible dispossession, this section would not apply. Therefore where the owner lets a person take possession of a shop as his servant, but subsequently the servant sets himself up as owner, the landlord cannot sue the servant under this section for possession as his suit is based on title and not on forcible loss of possession. A suit under section 9 it is open to the defendant to plead that the suit property was dedicated to the public for a religious or charitable purpose in order to show that the plaintiff’s possession was merely that of a servant or manager liable to be dismissed.

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. 6 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. Rent The rent of a property, already accrued would not be immovable property, for it can not be said to arise out of land. But future rents and profits are benefits to arise out of immovable property and therefore, are immovable property. Future rent payable by a lessee to whom the property has already been leased, however, has two aspects and it is only in one of its aspects that it is to be regarded as immovable property. In on aspects, it is a benefit which arises out of the use of land. In a lease the lessor transfers and interest in immovable property to the lessee and the rent is the consideration for the transfer. A right to receive consideration for a lessee is not immovable property any more than a right to receive consideration in the case of a mortgage or sale of immovable property is immovable property. Therefore this section would not apply to it. 7 6 7

The General Clauses Act,1897 Shaukat Mahmood,p28

Fishery A several fishery is an incorporeal here determent and would normally be considered real or immovable property.

Fishing Rights The right to catch fish for a specific period in a specific part of the lake is immovable property. But is the whole of section 9 is repugnant to the idea that immovable property in that section includes and incorporeal right, the immovable property in that section includes an incorporeal right. The immovable property intended to be dealt with is something of which actual physical possession can be given and taken. Therefore such a right cannot be enforced under this section.

Right to Collect Tolls A right to collect tolls in a public ferry is not immovable property and a lessee has no right to recover possession under section 9 of the S. R Act..

Trees The term trees are included in the term immovable property. But standing timber which has to be cut down and removed is movable property.

Mortgage A mortgage with possession is an interest in land because the mortgage has a right to possession and enjoys the benefits arising out of the land until he is redeemed. In such a case, the mortgagee rights therein are immovable property. But a simple mortgage bond is movable property for the purpose of procedure for attachment of the debt.

Buildings A building is an immovable property. Therefore a house though a kutcha one would be immovable property as its walls though katcha would be permanently fixed to the earth.

SUIT BASED ON TITLE A distinction has to be drawn between a suit based upon possessory title and a suit under section 9. In the former case the plaintiff would be entitled to a decree only where the plaintiff’s possession was sufficient proof of his title while in the latter case the Court has merely to see whether the plaintiff was in possession six months prior to the date of the suit. Therefore where the plaintiff does not allege possession but basis his suit on title he can not given a decree for possession under section 9 even if he has been dispossessed within six months of the date of the suit. Where two separate suits are brought, one based on possession under this section, and another on title, they cannot be consolidated and tried together. The suits being of different nature altogether, they must be heard separately.

Possessory suit based on tile A decree can be passed on basis of possessory title in a suit for possession when the plaintiff proves that he was in peaceful possession when he as dispossessed by the defendant and the defendant fails to prove title in himself, even though the plaintiff has not framed his suit as one under section 9 and did not sue the defendant within six months of his dispossession. When the plaintiff wanted possessions under this section and not under the ordinary law on the basis of claims based on the title, the relief may be granted. The mere fact that the plaintiff and referred to his claims of ownership in

the plant, would not make any difference. That would be a matter of history not material or relevant for the purpose of the suit under section 9 of The S.R. Act. Suit after six months A party which fails to recover possession under section 9 would still have an alternate remedy of a regular suit for possession on basis of title. Where a suit for possession is brought more than 6 months after the date of dispossession, the plaintiff is entitled to succeed only if he proves his case to recover possession on the basis of some right or title.

Suit on title is not barred by this section No one, though entitled to sue under section 9, is bound to do so, and one can always bring a regular suit founded on title. Therefore if a person in possession is dispossessed, he can succeed on the strength of his title if he does not sue under section 9 for possession. Similarly a person who has been ousted by a trespasser from the possession of immovable property, to which he had merely a possessory title, is not debarred from bringing a suit in ejectment on the basis of his possessory title even after the lapse of six months form the date of dispossession. Where the suit is based on title and relief is not claimed under this section, the Court has no discretion in the matter of granting or refusing to grant relief.

Stay of suit under this section till decision of title suit It is difficult to lay down any hard and fast rule with regard to the stay of a suit under section 9 where the question of title is raised in another suit, which is pending at the same time. Where the filing of such a suit is found to be for the purpose of protracting proceedings and harassing the party which has been dispossessed, naturally the Court will not use its discretion under section 151, C.P.C to stay the suit, for the simple reason, that power is to be exercised in the interest of justice. But it cannot be accepted as a firm rule that in no case an inquiry on the point of possession in a suit under section 9 is to be suspended until the title suit is decided. It is true that a decision under section 9 is subject to the decision of the title suit which may eventually be filed. But considering that such a decision is subject to the decision of the title suit, the question at once arises whether in a case in which a title suit has been filed and is pending in the same Court and is at the same stage as the suit under section 9, the Court is not empowered in the interest of justice to stay that suit for possession. There is no principle upon which such a rule can be laid down which, in certain cases, may result in hardship.

Remedy of person against whom order under this section.

Title is no defence in a suit under section 9 but affords a conclusive defence in other suits. Therefore where petitioner had got a decree in his favour under section 9 respondent could only defend his title but not possession. Restoration of possession in a suits under section 9 is always subject to a regular suit and the person who has regular title or even the better title con not therefore be prejudiced in any way be a decree in such a suit. Where an order is made under section 9 against the owner or the property, this order and decree cannot be assailed by any appeal but can be challenged by a suit for possession based on title.

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. 8 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 can not be said to be illegal with the maintaining of this section 9 of The S. R. Act. BAR TO CONVERTING THE SUIT The suit framed under section 9 of The S. R. Act is title suit, though summary in nature. But an application under order XXI, rule 100 of The C.P.C, 1908 takes the forms of miscellaneous proceeding. There was no scope of converting the suit under section 9 of the act in to a miscellaneous proceeding under order XXI, rule 100 the code does not at all arise. 9 When an application under order-XXI, rule-100 is made the court shall register the application, make an investigation there in and the court, if satisfied that the applicant was in possession of the property of his own account or on account of some persons other than the judgment debtor it shall direct the applicant be put in to possession of the property. The court in the rule is the executing court and the right to apply arises only after the applicant has been dispossessed and the applicant to be presented before the court within thirty (30) days from the date of his dispossession as mentioned in Article 165 of schedule 1 of the Limitation Act, 1908.So, the question of converting the suit under section 9 of The S. R. Act in to a miscellaneous proceeding under order XXI, rule 100 of C.P.C does not at all arise. In this content is to be remembered that no litigant has a right to get his affairs settled in the manner as he wishes. Every access to justice must not be used a license to a litigant.

APPEAL AND REVIEW The last part of section 9 expressly 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, 8 9

Monir Hussain & Others Vs. Darag Ali,1 MLR(HCD)90 Delwar Hossain KhanVs. Amzad Hossain and Others 19 BLD 523

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 (6) 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.

BIBLIOGRAPHY BLD’s 10 Years Digest(1993-2002)First Edition, Bangladesh Bar council,2004 Civil Reference(1996-2000), First Edition,BLC,2001 Five Years MLR Civil Reference(1996-2000),First Edition, The Main Stream Law Reports,Dhaka,2001 Mahmood, Shaukat, The Specific Relief Act(I of 1877), Seventh Edition, Legal Research Centre, Lahore, 1997 Second Five Years MLR civil Reference(2001-2005), The Main Stream Law Reports,Dhaka,2006 The General Clauses Act(X of 1897), Third Edition, DLR,2007 The Limitation Act(IX of 1908), Second Edition, DLR,1986 The Specific Relief Act (I of 1877), Fourth Edition, DLR,2004 20 Years Civil Digest(1985-2004),First Edition, DLR,1990 36 Years Civil Digest(1949-1984),Part III, First Edition, DLR, 1986