Rajasthan High Court - Jaipur
Amar Singh vs Ghanshyam And Ors. on 23 March, 1998
Equivalent citations: AIR1998RAJ333, 1999(2)WLC407, 1998(1)WLN365
ORDER V.S. Kokje, J.
1. This case is heard today. The learned counsel for the revision-petitioner submits that almost entire evidence of the defendants has not been considered in the case. Hence it is a material irregularity. He also submits that in a suit under Section 6 of the Specific Relief Act mesne profit could not be decreed. The learned counsel for the non-petitioner submits that there is no question of jurisdiction involved in this case and there is no material irregularity committed by lower Court. On the question of mesnc profits, he submitted that it is only a consequence of the order for recovery of possession on (sic) the mesne profits have been granted and the Court had jurisdiction to do so.
2. There is no doubt on reading the plaint that it was brought for recovery of possession under Section 6 of the Specific Relief Act. The case of the plaintiff was that the disputed premises were in his possession and he was dispossessed forcibly from them on 25-5-92. On the other hand, the petitioner-defendant came with a case that the disputed premises fell within his tenancy and story about forcible dispossession was false. The plaintiff examined as many as 9 witnesses in support of his case that he was forcibly dispossessed from the premises on 25-2-92 (sic). In paragraph 20 of the judgment, the trial Court has discussed the evidence of the defendant and. therefore, it cannot be said that it has totally ignored the defendants' oral evidence. The lower Court has also observed that Rupa Ram, Chhagan Lal, Narayan, Arjun, Prakash, Narendra etc. etc. were the other tenants in the house but were not examined by the other side. The trial Court also observed that the defendant took specific stand that in the disputed premises his wife suffered a fracture because of a fall and Hari Singh, Rupa Ram and Gopal Lal Soni etc. lifted his wife from the same disputed premises and took her to hospital in Ajmer. However, the defendant did not examine Gopal Soni, Hari Singh, Kunti Jhala. The trial Court has also observed that the defendant has examined Ugam Singh a Class IV servant of a school who has nothing to do with the case. The trial Court found him to be a chance witness. The trial Court also considered the statement of Likhma Ram (DW 3) and found that both the DWs Ugam Singh and Likhma Ram were cooked up witnesses. Thus, there is no force in the contention that the defendants evidence was not considered by the trial Court- In revisional jurisdiction, under Section 115 of the Code of Civil Procedure, this Court cannot embark upon appreciation of evidence to come to a different conclusion than which is arrived at by the trial Court. There is, therefore, no force in this revision petition on this count.
3. The other contention is that in a suit for recovery of possession under Section 6 of the Specific Relief Act no other relief except possession could be granted and, therefore, grant of mesne profits @ Rs, 80 per month was without jurisdiction. The old Section 9 of the repeated Specific Relief Act of 1877, is not materially different from Section 6 of the present Act of 1963.
4. It would be useful to survey the case law 0.1 the point in order to settle the position once for all so far as this Court is concerned.
5. In a single Bench decision of Madras High Court, Oldfield, J. in Yalamanchili Purnayya v. Pamu Ramaswamy, AIR 1915 Mad 80(1), deciding a Civil Revision Petition from a decree in an original suit observed that the objection that -the plaintiff having joined with his prayer for restoration to possession, one for mesne profits, cannot be treated as having sued under Section 9 of the Specific Relief Act (old), at least until he abandoned the latter claim, cannot be sustained wholly. It was further observed that for the mere fact that mesne profits cannot be recovered in a suit under Section 9 need not in any way affect the Court's ability to grant restoration to possession. The Court could reject the one prayer and grant the other without immediate or probable inconsistency.
6. In Thavasi v. Arumugam, (1915) 28 1C I : AIR 1916 Mad 328, a Division Bench of the Madras High Court took the view that a claim for mesne profits ought not to be made in a suit for possession under Section 9 of the Specific Relief Act (old) as the question of title cannot be directly decided in such a suit and, therefore, a relief which depends upon title, considered apart from possession, cannot be given in such a suit. The reason for not allowing mesne profits was given by the Division Bench as in a suit for mesne profits, other considerations would arise, because if it is ultimately found that the person who was forcibly dispossessed was only a trespasser, and that the person who dispossessed him was the true owner of the property, in that case the plaintiff would not be entitled to mesne profits even in law. In a suit under Section 9 of the Specific-Relief Act (old) any person who may not be the owner of the property but who was in possession and had been dispossessed otherwise in due process of law could bring a suit for recovery of possession. In the opinion of the Division Bench, therefore, in such a suit a claim for mesne profits could not be allowed to be made or decreed.
7. In Janardhan Ganesh v. Ramchandra, AIR 1917 Nag 19, the question arose in somcwhal different context. There the question was as to whether a subsequent suit for mesne profits would be barred because mesne profits were not claimed in the suit under Section 9 of the Specific Relief Act. The learned Officiating Additional Judicial Commissioner observed that the right to possess immovable property and the right to enjoy the profits thereof are distinct causes of action, so that a person who has been dispossessed of immovable property, is entitled to sue for its possession under Section 9, Specific Relief Act and to leave the question of mesne profits for another suit, as mesne profits would depend on title, a matter which cannot be gone into in a suit under Section 9 of the Specific Relief Act.
8. In Abdul Kadi Rowther v. Uthumansa Rowther, AIR 1927 Mad 722(1) the decision in Thavasi v. Arumugam (supra) was followed.
9. In Ma Ngwe Bwin v. Maung Po Maung. AIR 1927 Rangoon 142, the learned singleJudge of the Rangoon High Court relying on the decisions in Tilak Chandra Dass v. Fatik Chandra Dass, (1898) ILR 25 Cal 803 and Munshi Nazir Ahmed v. Abid Ali, (1911) 8 All LJ 910 : II 1C 38, held that a claim for mesne profits cannot be joined with a claim under Section 9 of the Specific Relief Act. The learned single Judge also referred to decision of Allahabad High Court in Sheo Kumar v. Narain Das, 1902 (24) Allahabad 501. which lays down the proposition that two causes of action namely possession and mesne profits are entirely separate and distinct. However, the point as to whether a suit would cease to be a suit under Section 9 of the Specific Relief Act if mesne profits or any other relief other than possession was claimed by the plaintiff, was not decided by the learned single Judge.
10. In Foujmal Manaji v. Bikhibai, AIR 1937 Sind 161, a Division Bench of the Sind Judicial Commissioner's Court held that Section 9 of the Specific Relief Act provides a special and comparatively summary remedy for a person dispossessed without his consent and the Section relates only to possession. Hence under this Section a suit for possession and mesne profits would not lie and the Court cannot pass a decree for mesne profits arising either prior or during the pendency of the suit. Where the Court passes an order for mesne profits in such a suit it is without jurisdiction and cannot be said to be passed in a suit instituted under Section 9 of the Specific Relief Act.
11. In Anantia v. Khinklu, AIR 1955 NUC 4854 (HP), the learned Judicial Commissioner of Himachal Pradesh also held that in a suit under Section 9 of the Specific Relief Act mesne profits or damages cannot be awarded and a separate suit for mesne profits would not be barred by the principles of Order 2, Rule 2, C.P.C. because the right to possess immovable property and right to enjoy profits thereof are distinct causes of action, so that a person who has been dispossessed of immovable property, is entitled to sue for its possession under Section 9, Specific Relief Act and to leave the question of mesne profits for another suit.
12. In Krishnaji Madhavarao Khannukar v. Mahmed Husen Budansahab, AIR 1959 Mys 127, the learned single Judge of the Mysore High Court held that a Court cannot make any provision for mesne profits in a decree made under Section 9 of the Specific Relief Act. The Court deleted that part of the decree which awarded mesne profits and confirmed the possession part of it.
13. In Govind Babaji Naik Araundekar v. Shankar Babu Naik Araundekar, AIR 1971 Goa 24, the learned Judicial Commissioner observed that the suit being under Section 6 of the new Specific Relief Act in which the question of title is not decided by the Court, the lower Court should not have entertained a claim in respect of mesne profits. It was held that the decree passed by the lower Court as far as it concerned with mesne profits was against law. The Court upheld the decree so far as possession was concerned and set aside the award of mesne profits.
14. Thus the consistent view of different High Court is that a claim for mesne profits cannot be made in a suit under Section 6 of the Specific Relief Act for recovery of possession. It is also clear that if such claim is included in the decree by the trial Court the entire decree cannot be thrown out but the mesne profits' part of the decree can be set aside confirming the possession part of the decree. The view is based on sound principles. After all, remedy under Section 6 of the Specific Relief Act, 1963 is a special remedy providing speedy relief to a person who is thrown out of possession except by following due process of law. It is an exception to general law which requires the plaintiff to prove his right to the property before decreeing possession in his favour. Such a provision has to be construed strictly and not liberally. When the provision does not speak of any other relief than recovery of possession, other reliefs cannot be read into the language. Moreover, mesne profits cannot be said to be claimable as a consequential relief in every case brought under Section 6 of the Specific Relief Act. As pointed out in some of the rulings cited above, since the claim is based on dispossession otherwise than in due course of law, title of the plaintiff to continue in possession is not to be looked into and without looking into it mesne profits cannot be decreed, it is only natural that mesne profits cannot be granted in such an action.
15. The revision petition is, therefore, partly allowed. The judgment and decree so far as recovery of possession is concerned is maintained and so far as the grant of mesne profits @ Rs. 80 per month from the date of suit till possession is concerned, it is set aside. There shall be no order as to costs.