JUDGMENT Jaspal Singh, J.
(1) In a suit for possession under Section 6 of the Specific Relief Act, 1963 (hereinafter called the Act) the plaintiff also sought a decree for mesne profits/damages, and the learned Additional District Judge granted both the reliefs. Hence this petition seeking to revise the judgment and the decree.
(2) Mr. J.M. Lal, the learned Counsel for the petitioners has been brief but incisive. As per him Section 6 of the Act being a very special Section giving a special and summary relief, the claim for damages/manse profits cannot be joined in a suit under it and that as the respondent did claim damages/manse profits also Along with a decree for possession in her suit under Section 6 of the Act, it virtually became a title suit and outside the jurisdiction of Section 6 and that consequently, the impugned decree for possession and for damages renders the whole decree bad and liable to be set aside altogether. In support he has relied upon Tilak Chandra Doss v. Fatik Chandra Dass and Others 25 2nd 803 and Nazir Ahmad v. Abid Ali, 8 Aljr 910. Undoubtedly, both these judgments lend a full-throated support to the contention of Mr. Lal.
(3) In the case of Tilak Chandra Dass, a decree was passed under Section 9 of the Specific Relief Act, 1877 giving the plaintiff possession and directing that the cost of removing huts and filling up excavations should be paid by the defendant under the decree. It was held that the later portion of the decree was beyond the scope of Section 9 and that consequently the entire decree was liable to be set aside.
(4) In Nazir Ahmed's case which too was under Section 9 of the Act of 1877, a decree had been passed for possession and damages. Relying upon the judgment of the Calcutta High Court in the case of Tilak Chandra Dass the Court held: "THE fact remains that a decree for possession under Section 9 of the Specific Relief Act and for damages is a bad decree, one liable to be set aside altogether and not capable of being split up in two portions - (1) a valid decree for possession as above; and (b) a bad decree for damages." (5) However, on the other hand the learned Counsel for the respondent has submitted that the respondent may be taken to have given up her relief for damages/manse profits. As per him since decree for possession had been validly passed, it alone could be allowed to stand.
(6) Though not referred to and relied upon, there are judgments in support of the proposition that in a suit under Section 6 (formerly Section 9) of the Act, relief of mesne profit or damages could be joined and reference in this connection may be made to Ram Parekh Bai v. Sheodibai Joti 2nd Vol. Xv All. 384 and Pandhari Shamrao Kolhe v. Meerabai 1980 Maharashtra L. J. 39. However, with respect, I do feel that since the right to possession of immovable property and the right to enjoy profits thereby are distinct causes of actions, a person who stands dispossessed of immovable property is entitled to sue for its possession under Section 6 and has to leave the question of damages/manse profits for another suit since that would depend on title, a matter which is beyond the pale of a suit under Section 6 of the Act. We can ill afford to ignore the object of Section 6 which clearly is to discourage forcible and unlawful possession and in order to grant relief the Court is required only to see whether the person seeking relief was dispossessed within six months of the date of the institution of the suit. It is not required to go into any other question. This being the position, I do feel that a Court cannot pass a decree for damages/manse profits under Section 6 of the Act Along with a decree for possession. The question, however, is that if that be so is the impugned decree liable to be set aside altogether?
(7) The two judgments referred to and relief upon by Mr.Lal have already been taken note of by me in the preceding paragraphs which do say that the entire decree must fall. However, although Nazir Ahmed's judgment is based upon an earlier Calcutta High Court's judgment, it appears that the Calcutta High Court itself, with the passage of time, had a rethinking over the matter. Reference in this connection may be made to Sona Mia and Another v. Parokash Chandra Bhattacharjya & Others . In the said case, it so appears, besides a decree for possession under Section 9 the Court also directed the defendant to remove structure which they had erected on the land and even permitted the plaintiff to pull down the same. It was held that since in a suit under Section 9 the question of title of the respective parties was not to be adjudicated upon, therefore, the Court was wrong in passing an order regarding the structures on the land. Was the entire decree made to fall there by ? No. The order of the learned trial judge ejecting the defendant from the land was maintained, but the order regarding the structure was set aside. This, however, is not the solitary judgment. In Ma Nagwe Bwin & others v. Maung Po Maung Air 1927 Rangoon 120 a decree had been passed not only relating to possession but also for mesne profits. While holding that a claim for mesne profits could not be joined with a claim under Section 9 of the Act of 1877, the Court set aside so much of the order as related to mesne profits, and significantly, it did so after noticing both the judgments relied upon by Mr.Lal. Same view was taken in 'Yalamanchili Puranyya v. Pama Ramaswamy Air 1915 Madras 80 (1) and in AbdulKadi Rowther v. Uthumansa Rowther Air 1927 Madras 722. Reference in support may also be made to a judgment from Mysore High Court in Krishnaji Madhavaroo Khannukar v. Mahmed Husen Budansaheb and Other, Air 1959 Mysore 127 in which too besides a decree for possession under Section 9 of the Act mesne profits had also been awarded. The Court maintained the decree for possession but deleted that part of the decree by which the plaintiff was awarded mesne profits. To the same effect is the judgment from Goa, Daman and Diu in Govind Babuji Naik Araundekar v. Shankar Babu Naik Araundekar Air 1971 Goa Daman & Diu 24. In view of what has been noticed by me above, I am not inclined, with respect, to follow the dictum of the two judgments relied Upon by the learned Counsel for the petitioner. Since the challenge has been limited to the point noticed above, the decree so far as it relates to delivery of possession is maintained while that portion of the decree by which mesne profits/damages have been awarded stands set aside. No order is made as to costs.