FATIMA JINNAH WOMEN UNIVERSITY

SUIT UNDER SECTION 9 OF THE SPECIFIC RELIEF ACT,

1877

SUBMITTED TO: Mam Uzma Baddar

SUBMITTED BY: Mahnoor Paracha

Written Submission

SUIT UNDER SECTION 9 FF THE SPECIFIC RELIEF ACT,

1877

Assignment No. 1
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,1877 clearly 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.
  
SECTION 9 OF THE SPECIFIC RELIEF ACT, 1877
 
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

 
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.2
 
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

1
The Specific Relief Act,1877[1 of 1877]
2
Delwar Hossain Khan  v  Amzad Hossain and others 19 BLD 523V
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.

 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. 3
 
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 thereof. The question as to how the plaintiff came in to possession cannot be gone in
to this proceedings. Where a mother and son were forcible ejected from room in their possession,
and 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 cannot take the benefit of this section to dispossess the true owner.

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 9 is
that it cannot 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
3
Sona Mia v Prokash  AIR 1940 (Cal) 464.
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.
 
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. Therefore 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 cannot 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.
 
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
4
Jebun Nessa Zaman  vs  Hosne Ara Lili  53 DLR 394
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.
  
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 co-sharer 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. 5
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. 6

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

           
5
The General Clauses Act,1897
6
Shaukat Mahmood,p28
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.
 
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. 7

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 cannot be said to be illegal with the maintaining of this section 9 of The S.
R. Act.
 
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, 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.

7
Monir Hussain & Others Vs. Darag Ali,1 MLR(HCD)90
DIFFERENCE BETWEEN SECTION 8 AND 9 OF SPECIFIC
RELIEF ACT.
In section 88:
* Paintiff is the real owner of the property.
* Suit can be filed within 12 years.
* Plantiff have to proof ownership or title. If he fails to proof so, he will not get decree and suit
will dismiss.
* Suit can file against government.
* Appeal and review is allowed against decree.

In section 99:
* Plaintiff is the possessor of the property.
* Suit can be filed within 6 months.
* Plantiff no need to proof ownership or title.
* Suit cannot file against government.
* No appeal or review allowed against decree.

2013 CLC 19110

Suit under section 9 of the Specific Relief Act, 1877 could be brought by any person who had
been illegally dispossessed against illegal occupation, within six months of such dispossession
and he would not be questioned as to the title but simply he would be required to prove his prior
possession and dispossession without due course of law and such a suit for recovery of
possession could even be brought against the actual owner of the suit property---Where a suit
was brought by an encroacher against any person other than the actual owner, on the basis of
prior possession and illegal dispossession, the same was maintainable under section 8 of the
Specific Relief Act, 1877 within a period of twelve years in terms of Article 142 of the
Limitation Act, 1908.

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.
that Sec. 8 and Sec. 9 of specific relief act provided alternative remedies and they are mutually
exclusive. A plaintiff cannot combine suit. Under Sec. 8 claim is based on the title whereas claim
is based on possession in Sec. 9.
8
Section-8 of Specific Relief Act,1877
9
Section-9 f Specific Relief Act,1877
10
http://www.pja.gov.pk/system/files/cpc_order37.pdf