Tuesday, 19 February 2019

Whether in suit for recovery of possession it is necessary to join person who had actually dispossessed plaintiff?

7. On plain reading of the said provision it becomes clear that cause of action for suit arises when any person is dispossessed without his consent of immovable property otherwise than in due course of law. The relief that can be claimed in such a suit is of recovery of possession. This would mean that person who is in possession of such immovable property of which the plaintiff was dispossessed without his consent and otherwise than in due course of law would be a necessary party to the suit for claiming the relief effectively. If persons who have dispossessed are in possession of the property in question, they would obviously be necessary parties for recovery of possession in a suit under Section 6 of the Act. However, if dispossession is done through the agency of some persons who have passed on the possession to other persons, the latter being in actual possession from whom recovery can be sought, would be necessary parties for claiming an effective relief under Section 6 of the Act. The suit filed against those who are in actual possession for recovery of the immovable property under Section 6 of the Act can be effectively decided even in absence of the agents who have dispossessed plaintiff and transmitted the possession to the defendants. Therefore, the approach of the trial Court that in absence of the persons, who had dispossessed the plaintiffs having been made parties to the suit, the relief under Section 6 could not be granted against those who are actually in possession of that property is wholly misconceived and not warranted by the provisions of Section 6 of the said Act. in Virjivandas Madhavdas v. Mohammed All Khan, reported in ILR 5 Bom 208, the Bombay High Court in context of section 9 of the specific relief act, 1877 held that a person who has been ejected from his property in suing to recover it under section 9 of the specific relief act, 1877, may sue the actual ejector or the person under whose order or by whose authority the actual ejector had acted, or he may sue both; but the wrong doer who has taken possession is the one from whom primarily it is to be reclaimed. Therefore a suit filed against persons from whom possession is to be primarily reclaimed under Section 6 of the said Act can be decided notwithstanding that those who had actually dispossessed the plaintiffs were not made parties to the suit."

(emphasis supplied)

29. In the present case also, therefore, as it is the Applicant who is in actual possession of the suit property, the suit filed against him alone, without joining the agency of Recovery Officer from whom he has received the said possession, is definitely maintainable.
IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 455 of 2016

Decided On: 05.04.2018

 Kadir Ilahi Bagwan Vs. Usha  Anandrao Yadav

Hon'ble Judges/Coram:
Dr. Shalini Phansalkar Joshi, J.

Citation: 2019(1) MHLJ 705.
Read full judgment here: Click here
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