Coram
J. W C Petheram, Kt.
J. Prinsep
J. Pigot
J. O'Kinealy
J. Ghose
Parties
Appellant-FaduJhala
Respondent- GourMohunJhala
Subject
The plaintiff has filed a suit for the possession of fishing waters that fall in the land of the defendant. Here he was exercising exclusive rights in a fishery, which did not belong to him, and was then prevented from using such waters. He filed a suit claiming possession under section 9 of the Specific Relief Act 1877.
Overview
- In the present case the appellant brought a suit against the defendant in the Munsif Court under section 9 of the Specific Relief Act of 1877, for possession of a jalkar, where the fishery existed. The fishing water area belonged to the defendant, but the plaintiff claimed he had right to the soil where the fishery existed, and moved for possession of the fishery.
- The Munsif was of the view that the suit did not fall under section 9, and dismissed it. Instead of appealing, the plaintiff obtained a rule calling on the other side to show why the Munsif’s judgment should not be put aside, on the ground that it had declined to exercise its jurisdiction.
Relevant Provisions
Section 9 Specific Relief Act of 1877- If any person is dispossessed without his consent of immovable property otherwise than in due course of law, they may file a suit to recover possession of it.
Issues
- Whether section 9 of the specific relief act can be applied to fisheries.
- Whether fisheries come under to scope of ‘immovable property’
Analysis
- The present judgment was given by the Calcutta High Court, and been tried by a five-judge bench. Each judge has stated their opinion separately.
- Chief Justice W C Petheram stated that fishing in water that covers land of other falls within the definition of immovable property. He was of the opinion that Section 9 as a whole is repugnant to the concept that immovable property in the section also includes an incorporeal right such as a right of fishing in waters belonging to another. He believes it is apparent that immovable property means something that can actually physically be possessed, and can’t include an incorporeal right. Thus, he believes the suit should not be maintained.
- Justice Prinsep was of the opinion that the suit should be maintainable. He says there is nothing in the Civil Procedure Code that would prevent relief for possession of a fishery as an immovable property. He interprets immovable property, as given under section 2 of the General Clauses Act 1897, to include fishery, as it is a benefit arising from the land. There is thus, nothing repugnant in the Specific Relief Act to limit the definition, or to make section 9 inapplicable.
- Justice Pigot referring to Section 2 of the General Clauses act, similarly held the view that a fishery is within the definition of immovable property. His justification concluded that incorporeal property can be included in the scope of section 9 of the Specific Relief Act. With regard to the supposed repugnancy, it was stated that it would only arise if the nature of the relief was repugnant to character of the property. He states that the relief in Section 5 is appropriate to nature of incorporeal property. He too adjudged that the suit is maintainable.
- Justice O’ Kinealy took the opposite stand. He referred to various case laws to see the positions taken on the concept of immovable property. He also studied interpretations of section 9. Thus, he concluded that the words ‘immovable property’ does not include the rights that this suit claims. He asked for the suit to be discharged.
- Justice Ghose concurring with justice O’Kinealy does not think possession to the property of another should come under the ambit of section 9. The section according to him only refers to property where physical possession can be delivered.
- The majority stand was that the suit is not maintainable, it was thus discharged.
Conclusion
The question in the particular case is about the possession of a fishing area. The plaintiff has claimed possession under section 9 of the specific relief act of 1877. The question that arises is if that area can be defined as an immovable property, whose possession can be transferred. The five-judge bench in the case have all given individual statements, the majority is of the belief that the suit should not be maintainable, and possession cannot be given. Two judges however, were of the view that the fishery fell within the concept of immovable property, and the suit should be maintained. The case allows one to see differing interpretations of one section, and how the legislative interpretation of judges varies in a bench.
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Questions
- What does section 9 of the Specific Relief Act 1877 specify?
- Do you agree with the majority opinion?
