SADASHIV SHYAM SAWANT (D) THROUGH LRS. AND ORS.versusANITA ANANT SAWANT

                        [201 O] 2 S.C.R. 1070


A    SADA$HIV SHYAM SAWANT (0) THROUGH LRS. AND
                            ORS.
                             v.
                  ANITA ANANT SAWANT
              (Civil Appeal No. 1930 of 2010)
B                       FEBRUARY 22, 2010
            [P. SATHASIVAM AND R.M. LODHA, JJ.]

         Specific Relief Act, 1963: s. 6 - Suit filed by landlord
C under s. 6 against trespasser when tenant in exclusive
    possession of suit property is dispossessed forcibly by a
  · trespasser/third party - Maintainability of - Held: Maintainable
    - Non-impleadment of tenant is not fatal to the maintainability
    of such suit as tenant is not necessary party in such suit.
D
         Words and phrases: Word 'dispossessed' - Meaning of
    - In the context of s.6(1) of Specific Relief Act, 1963.

        The questions which arose for consideration in the
    present appeal were whether landlord can maintain suit
E under Section 6 of Specific Relief Act, 1963 against a
  . trespasser for immediate possession where a tenant in
    exclusive possession was dispossessed forcibly by the
    trespasser and whether tenant is a necessary party in
    such suit.
F
        Dismissing the appeal, the Court

       HELD: 1.1. The key words in Section 6(1) of Specific
  Relief Act, 1963 are "dispossessed" and "he or any
  person claiming through him". A person is said to have
G been dispossessed when he has been deprived of his
  possession; such deprivation may be of actual
  possession or legal possession. Possession in law
  follows right to possession. The right to possession,
  though distihct from possession, is treated as equivalent
H                                1070
                                                    •


 SADASHIV SHYAM SAWANT (D) THROUGH LRS. v. 1071
            ANITA ANANT SAWANT

 to possession itself for certain purposes. A landlord by        A
 letting out the property to a tenant does not lose
 possession as he continues to retain the legal
 possession although actual possession, user and control
 of that property is with the tenant. By retaining legal
 possession or in any case constructive possession, the          B
 landlord also retains all his legal remedies. As a matter
 of law, the dispossession of tenant by a third party is
 dispossession of the landlord. The word "dispossessed"
                                                                     ...!
 in Section 6(1) must be read in this context and not in light
 of the actual possession alone. If a tenant is thrown out       c
 forcibly from the tenanted premises by a trespasser, the
 landlord has implied right of entry in order to recover
 possession (for himself and his tenant). Similarly, the
 expression "any person claiming through him" would
 bring within its fold the landlord as he continues in legal
                                                                 0
 possession over the tenanted property through his
 tenant. As a matter of fact, on plain reading of Section
 6(1 ), it is clear that besides the person who has been
 dispossessed, any person claiming through him can also
file a suit seeking recovery of possession. Obviously, a         E
 landlord who holds the possession through his tenant is
competent to maintain suit under Section 6 and recover
possession from a trespasser who has forcibly
dispossessed his tenant. A landlord when he lets out his
property to the tenant is not deprived of his possession
in the property in law. What is altered is mode in which         F
the landlord held his possession in the property
inasmuch as the tenant comes into physical possession
while the landlord retains possession through his tenant.
[Paras 16 and 19] [1082-F-H; 1084~C-D]
                                                                 G
     Veeraswami Mudali v. P.R. Venkatachala Mudali and
others AIR 1926 Madras 18; Ramchandra v. Sambashiv AIR
1928 Nagpur 313; (Kanneganti) Ramamanemma v.
(Kan~eganti) Basavayya AIR 1934 Madras 558, overruled.

    Nobin Das v. Kai/ash Chandra Dey (1910) Vol. VII             H
    1072   SUPREME COURT REPORTS                [2010] 2 S.C.R.


A Indian Cases 924; Ramanadhan Chetti v. Pulikutti Servai
  and Mohideen avuther v. Jayarama Aiyar (1898) 21 Madras
  288; Sai/esh Kumar and Anr. v. Rama Devi AIR (1952)
  Patna 339; Gobind Ram Jamna Dass v. Mst. Mewa wlo
  Parbhati AIR (1953) Pepsu 188, approved.
B
      Ramanadhan Chetti v. Pulikutti Servai (1898) 21 Madras
  288; Mohideen Ravuther v. Jayarama Aiyar (1921) 44
  Madras 937, referred to.

        Halsbury's Laws of England (Fourth Edition, page 617),
C referred to.
       1.2. Section 6 of the Act provides that suit to recover
  possession under the said provision could be filed by the
  person who is dispossessed or any person claiming
0 through him. The tenant having lost the possession
  though without his consent to a third party, may not be
  interested in recovery of possession. He may not be
  available. He may not like to involve himself in litigation.
  In such ,circumstances, if a landlord brings the suit to
E recover possession against trespasser under Section 6,
  it cannot be laid down as an absolute proposition that
  tenant must necessarily be impleaded as party to such
  suit. It may be desirable that a landlord in a suit under
  Section 6 of the Act against a trespasser for immediate
  possession when, at the date of dispossession, the
F house was in occupation of a tenant, impleads the tenant,
  but his non-impleadment is not fatal to the maintainability
  of such suit. [Para 20] [1085-C-G]
                       Case Law Reference:
G      AIR 1926 Madras 18         overruled           Para 7
       (1898) 21 Madrass 288      referred to         Para 7
       (1921) 44 Madras 937       referred to         Para 7
H      AIR 1928 Nagpur 313        overruled           Para 8
 SADASHIV SHYAM SAWANT (D) THROUGH LRS. v. 1073
            ANITA ANANT SAWANT

  AIR 1934 Madras 558             overruled             Para 9       A
  (1910) Vol. VII Indian
  Cases 924                       approved              Para 11
  (1898) 21 Madras 288             approved             Para 12
                                                                     B
  AIR (1952) Patna 339            approved              Para 13
  AIR (1953) Pepsu 188             approved             Para 14

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1930 of 2010.                                                        c
    From the Judgment & Order dated 28.3.2008 of the High
Court of Judicature at Bombay in Civil Revision Application No.
1235 of 2001.

     Amol Chitale, Abhijat P. Medh for the Appellants.               D

    Sushil Karanjka, Vishal A. Patil, K.N. Rai for the
Respondent.

     The Judgment of the Court was delivered by
                                                                     E
     R.M. LODHA, J. Leave granted.

     2. The main question for consideration in this appeal by
special leave is: where a tenant in exclusive possession is
dispossessed forcibly by a person other than landlord, can
                                                                     F
landlord maintain suit under Section 6 of Specific Relief Act,
1963 against such person for immediate possession. The
incidental question is, whether tenant is a necessary p::irty in
such suit.

      3. Smt. Anita Anant Sawant - the sole respondent filed a       G
suit for possession under Section 6 of the Specific Relief Act,
1963 (for short 'the Act') in respect of portion of property being
Gram Panchayat House No. 97 situated on land bearing Gat
No. 1, Hissa No. 61, Village Ambet, Taluka Mahasala, District
Raigad, against the appellants and their predecessors-in-title       H
    1074    SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A (hereinafter referred to as 'the contesting defendants') and one
  Smt. Nanibai Shankar Sawant, since deceased, (hereinafter
  referred to as 'defendant no. 4'). The plaintiff averred in the plaint
  that she purchased the entire house No. 97 from defendant no.
  4 by registered sale deed on October 1, 1981. At the time of
B purchase, part of house No. 97 was in possession of
  Pandurang Vichare who vacated that portion and she came
  into possession ofentire house. Later on, she let out southern
  side one room along with hall adjacent to Padavi and northern .
  side room of hall (for short 'suit property') to one P.V. Warik.
c On October 1, 1988, the cuntesting defendants forcibly
  dispossessed the tenant - P.V. Warik, threw away his articles
  and took possession of the suit property. The plaintiff, thus,
  prayed for recovery of possession of the suit property of which
  her tenant was forcibly dispossessed. The contesting
  defendants filed written statement and traversed p_laintiff's claim
0
  by stating that suit property was joint family property and
  defendant no. 4 had no authority to sell the said house to the
  plaintiff. The contesting defendants, thus, claimed that they were
  co-owners and in possession of the entire house No. 97.
E Defendant No. 4 set up the plea that rio consideration was paid
  to her for the sale of house No. 97 and that sale deed was
  obtained by fraud. It transpires, on the basis of the pleadings
  of the parties, the trial court framed as many as six issues,
  including that of title to property although such issue was
  unnecessary. The trial court, after recording the evidence and
F hearing the parties, held that plaintiff was able to prove her
  dispossession on October 1, 1988 by the contesting
  defendants from the suit property and that she could maintain
  the suit under Section 6 of the Act against the contesting
  defendants as she was in possession through a tenant over the
G suit property. The trial court, accordingly, vide its judgment and
  decree dated July 31, 2001, directed the contesting defendants
  to handover the possession of the suit property to the plaintiff.

      4. The contesting defendants challenged the judgment and
H decree of the trial court by filing revision application before the
        SADASHIV SHYAM SAWANT (0) THROUGH LRS. v. 1075
            ANITA ANANT SAWANT [RM. LODHA, J.]

       High Court of Judicature at Bombay. It may be noticed here that       A
       defendant no. 4 had already died during the pendency of suit
       and her legal representatives were brought on record, but later
       on they were deleted from array of parties in the revision
       application. Inter alia, the contention raised before the High
       Court was that if the tenant. of the plaintiff was forcibly           8
       dispossessed, the suit under Section 6 of the Act could be filed
       by the tenant and not by the landlady. The High Court did not
       accept the contention of the contesting defendants and held that
       in view of the language of Section 6 of the Act, either the tenant
       who was actually dispossessed or the plaintiff being landlady         C
       could file the suit. The High Court, thus, by its judgment dated
       March 28, 2008 dismissed the revision application. It is from
       this judgment that the present appeal by special leave arises.

            5. Section 6 of the Act reads as under:-
                                                                             D
            "6.- Suit by person dispossessed of immovable property.-
            (1) If any person is dispossessed without his consent of
            immovable property otherwise than in due course of law,
            he or any person claiming through him may, by suit,
            recover possession thereof, notwithstanding any other title      E
            that may be set up in such suit.

             (2)   No suit under this section shall be brought-

                    (a)   after the expiry of six months from the date
                          of dispossession; or                               F

                    (b)   against the Government.
....
           (3) No appeal shall lie from any order or decree passed
           in any suit instituted under this section, nor shall any review
           of any such order or decree be allowed.                           G

           (4) Nothing in this section shall bar any person from suing
           to establish his title to such property and to recover
           possession thereof."
                                                                             H
    1076      SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A         6. Section 6 corresponds to Section 9 of the repealed
    Specific Relief Act, 1877 (for short, '1877 Act'). The question
    whether a landlord can sue a trespasser for immediate
    possession where his tenant has been dispossessed has come
    up for consideration before various High Courts with reference
8   to Section 9 of the 1877 Act. Section 9 of the 1877 Act is in
    these terms:-

          "9. If any person is dispossessed without his consent of
          immovable property otherwise than in due course of law,
          he or any person claiming through him may, by suit,
c         recover possession thereof, notwithstanding any other title
          that may be 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
D         possession thereof.

               No suit under this section shall be brought against
          the Central Government or any State Government.

                No appeal shall lie from any order or decree passed
E         in any suit instituted under this section, nor shall any review
          of any such order or decree be allowed."

        7. In Veeraswami Mudali v. P.R. Venkatachala Mudali
    and others1, it was held by the Madras High Court that the
F trespasser could not"interfere with landlord's right to receive rent
  and a decree to be put into possession of the rents, but so long
  as landlord did not himself possess the right to enjoy physical
  possession, h~ could not eject the trespasser under Section
  9. While holding so, the Single Judge of Madras High Court
G relied upon previous decisions of that Court in Ramanadhan
  Chetti v. Pulikutti Servai2 and Mohideen Ravuther v.
    Jayarama Aiyar.
    1.   Air 1926 Madras 18.
    2.   (1898) 21 Madras 288.
H   3.   (1921) 44 Madras 937.
       SADASHIV SHYAM SAWANT (D) THROUGH LRS. v. 1077
           ANITA ANANT SAWANT [R.M. LODHA, J.]

          8. The Division Bench of Additional Judicial                      A
      Commissioners, Nagpur, in Ramchandra v. Sambashiv4, on
      a question referred to it under Section 113 of Code of Civil
      Procedure, held that a landlord cannot sue under Section 9 to
      recover possession of the land because he was not in
      possession of it and was not dispossessed of it.                      B

           9. In (Kanneganti) Ramamanemma v. (Kanneganti)
      Basavayya5 , a Single Judge of the Madras High Court held that
      a suit by landlord for possession under Section 9 in which the
      tenant in possession had not joined, is not maintainable.
                                                                            c
           10. Contrary to the aforesaid view of the Madras High
      Court and Nagpur Judicial Commissioner, the High Courts of
      Calcutta, Bombay, Patna, Pepsu and Rajasthan have taken the
      view that a landlord can maintain a suit under Section 9 of the
      1877 Act to recover possession where his tenant in exclusive          D
      possession has been dispossessed forcibly by the act of a third
      party.

          11. In Nobin Das v. Kai/ash Chandra Dey, the Division
      Bench of Calcutta High Court held:                                    E
            " .... In the case before us, the plaintiff was originally in
            actual possession of the land. He was at that stage entitled
...         to use the property in any way he chose. He settled the
            land with tenants. The result was, not that he was deprived
            of his possession, but that the mode in which he held           F
            possession of the property was altered. His tenants came
            into physical possession of the land and he held
            possession thereafter by receipt of rent from them. When,
            therefore, his tenants were forcibly ejected from the land
            by the defendants, it may reasonably be held that he also       G
            was dispossessed. The case before us is further
            strengthened by the additional fact that the tenants, after
      4.   AIR 1928 Nagpur 313.
      5.   Air 1934 Madras 558.
      6.   (1910) Vol. VII Indian Cases 924.                                H
            1078      SUPREME COURT REPORTS                      [2010] 2 S.C.R.


        A         they had been evicted, relinquished the land in favour of
                  the plaintiff so that the plaintiff thereafter became entitled
                  to have physical possession of the land. Under these
                  circumstances, we hold that the plaintiff was dispossessed
                  within the meaning of section 9 of the Specific Relief Act
        B         when his tenants were evicted from the land by the
                  defendant. .... ".

                 12. The Division Bench of Bombay High Court in Ratanlal
            Ghelabhai v. Amarsing Rupsing and others7 stated the legal
            position with reference to Section 9 of 1877 Act thus:
        c
                  "There is nothing in this section to show that possession
                  is confined to actual physical possession. In the case of a
                  landlord and tenant the landlord is in possession through
                  his tenant and, as pointed out in Nirjivandas Madhavdas
        D         v. Mahomed Ali Khan Ibrahim Khan [1880] 5 Born. 208],
                  the proper remedy where exclusive occupation of
                  immovable property is given to a tenant is for the tenant
                  to file a suit for possession but the landlord, if he desires
                  to sue immediately on the possessory right, can sue in the
        E         name of the tenant and further, for an injury to the reversion,
                  the landlord can sue in his own name. The injury in the
                  present instance consists in a denial of the plaintiffs title
                  to the land for defendant 1 has taken possession of it
                  claiming it to be his. I think, therefore, that there is an injury
"4~1.   F         to the reversion in respect of which the plaintiff can sue in
                  his own name .... ".

               13. In Sailesh Kumar and another v. Rama Dev1"B, the
          Division Bench of Patna High Court answered the question,
          whether a landlord can maintain a suit under Section 9 of the
        G 1877 Act against trespasser for immediate possession when,
          at the date of dispossession, the house was in occupation of
          a tenant entitled to its exclusive use, in affirmative. The Division
          Bench considered the matter thus:-
            7.   AIR 1929 Bombay 467.
        H 8.     AIR 1952 Patna 339.
 SADASHIV SHYAM SAWANT (0) THROUGH LRS. v. 1079
     ANITA ANANT SAWANT [R.M. LODHA, J.)

      "(6). Mr. P.B. Ganguly, appearing in support of this            A
      application, contended that the plaintiff's suit under S.9 of
      the Specific Relief Act was not maintainable, as she could
      not sue for possession, the actual possession having been
      with defendants 5 and 6 who were the tenants of the
      house. In support of his contention, he placed reliance on      B
      the cases of 'SITA RAM v. RAM LAL', 18 All 440 and
      'VEERASWAMI v. VENKATACHALA: AIR 1926 Mad 18.
      It is sufficient to state that the Allahabad case was not one
      under Section 9 of the Specific Relief Act, and it is beside
      the point in issue before us. The Madras case, however,         c
      supports the contention. That case is a single Judge case,
      and it appears that in the Madras High Court there are
      conflicting decisions on the point.

      (7). Section 9 of the Specific Relief Act is as follows:-
                                                                      D
              "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 may, by suit, recover possession thereof,
              notwithstanding any other title that may be set up      E
              in such suit"

      (8). The contrary view was taken in the cases of 'JADU
      NA TH SINGH v. BISHUNA TH SINGH', 1950 All LJ 288
      & 'RATANLAL GHELABHAI v. AMARSINGH RUPSANG',
      53 Born 773. I respectfully agree with the view expressed
                                                                      F
      in these cases. I am of opinion that there is nothing to bar
      a landlord from suing a trespasser under S. 9, Specific
      Relief Act, for possession even when at the date of
      dispossession the property is in occupation of a tenant
      entitled to possession".                                        G

    14. In the case of Gobind Ram Jamna Dass v. Mst. Mewa
wlo Parbhaf1'9, the Division Bench of Pepsu High Court relied

9.   AIR 1953 Pepsu 188.                                              H
    1080   SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A upon the decision of Patna High Court in Sailesh Kumar8 and
  did not follow decision of Madras High Court in Veeraswami
  Mudali 1 . The Division Bench of Pepsu High Court held that
  possession of the tenant can be considered to be the
  possession of the landlord for the purposes of Section 9. The
B Division Bench expressed its opinion in the following words:

       ".... The word used in S. 9 is 'dispossessed'. There is
       nothing in this section to show that the possession is
       confined only to actual physical possession. I am, therefore,
       of the opinion that a suit is competent by the landlord, even
c      if he is not in actual physical possession of the land but in
       its possession through a tenant at the time of illegal
       dispossession. This conclusion is further strengthened by
       the words "he or any person claiming through him may, by
       suit, recover possession thereof' used in the section. The
D      language of this section, therefore, clearly indicates that
       besides the person dispossessed, any person claiming
       through him can seek his remedy provided in this section
       for the recovery of possession. It necessarily folloWs·-that
       the person seeking relief under S. 9 need not himself be
E      in actual physical possession of the property. A contrary
       view to this will defeat the aims and objects of this
       enactment. Supposing a landlord is incompetent to sue
       and his tenant who is dispossessed refuses to institute a
       suit under S. 9 of the Act, the landlord would be put in a
F      very awkward situation and would be forced to file a
       regular suit. In such a case a wrong-doer will naturally be
       placed in an advantageous position. To accept this
       position it would be putting a premium on a wrong act of
       trespasser. This position, in my opinion, is not
G      contemplated by the relevant legislation. On the other hand
       S.9 provides for a speedy and summary remedy to recover
       possession taken away by unlawful means. The object of
       the legislation, besides this, is to place the parties in their
       original position. Trespasser, if he so likes, can bring a
       regular suit to prove his title. A contrary construction, in my
H
 SADASHIV SHYAM SAWANT (D) THROUGH LRS. v. 1081
     ANITA ANANT SAWANT [R.M. LODHA, J.]

     opinion, would result in protracted litigation for persons       A
     ousted from lawful possession by unlawful means on the
     part of a trespasser".

      15. The Single Judge of Rajasthan High Court in Raghuvar
Dayal v. Hargovind and another10 was concerned with the               8
question, whether suit for possession under Section 9 of the
1877 Act can be brought by a landlord even when the property
is in possession of the tenant. The Single Judge followed the
afore-referred decisions of Bombay, Pepsu and Patna High
Courts and reiterated the legal position as follows:-
                                                                      c
     "(18). On a careful consideration of the wordings of S. 9
     of the Act, I am of opinion that the ruling in which it has
     been held that the suit for possession u/s 9 of the Act can
     be brought by a landlord also even when the property is in
     possession of the tenant have taken a correct view of the        D
     provisions of S. 9. The words used are "dispossessed" and
     "recover possession thereof'. Section 9 is not confined
     only to those cases where the plaintiff is in actual
     possession of the property in suit. Whatever possession
     the plaintiff has at the date of dispossession, he is entitled   E
     to claim in case of dispossession. If a tenant is in
     possession of the property and being dispossessed
     therefrom does not care to bring a suit for possession of
     the property, the landlord cannot be shut off from bringing
     a suit against the trespasser.                                   F
            If the tenant has a mind to remain in possession of
     the property on behalf of the landlord, the landlord will put
     him in actual possession of the property. If, however, the
     tenant has no mind to stick to the land, the landlord is
     ent!t!ed to get actual possession of the property from the       G
     trespasser. Of course it would be proper to make the tenant
     also a party to the suit. He may either join as a co-plaintiff
     or in case he refuses to join as a co-plaintiff he may be
     made a defendant so that he might have his say in the
10. AIR 1958 Rajasthan 287.                                           H
    1082    SUPREME COURT REPORTS                     [2010] 2 S.C.R. '


A       matter. In this case the tenant has also been made a
        defendant.
               I may say_ here that in this particular case according
        to the finding of the I.earned Civil Judge with which I have
        no reason to disagree, the 'tenant had put Raghuvar Dayal
B
        defendant in possession of the property in collusion with
        him. This Reghuvardayal filed a suit for ejectment and the
        tenant entered into ·a compromise and suffered a
        compromise decree for ejectment being passed against
        him. In execution of that decree Shivchand tenant was
c       dispossessed. Under these circumstances to my mind the
        plaintiff was entitled to· actual possession of the property
        in dispute and the defendant Reghuvardayal who came
        into possession of that property certainly interfered with the
        possession of the plaintiff.
D
               Shivchand tenant had no interest in the possession
        of the property in dispute under the circumstances of the
        case and the only persons interested in possession
        thereof was the plaintiff. I cannot therefore find any fault with
        the decree of the lower Court awarding possession to the
E
        plaintiff'.

        16. As noticed above, the views of the High Courts differ
  about maintainability of suit for possession by the landlord
  under Section 9 of 1877 Act in respect of property let out to
F the tenant who has been dispossessed forcibly by a third party.
  That language of Section 6(1) of the Act and first paragraph of
  Section 9 of 1877 Act is exactly identical admits of no doubt.
  The key words in Section 6(1) are "dispossessed" and "he or
  any person claiming through him". A person is said to have been
G dispossessed when he has been deprived of his possession;
  such deprivation may be of actual possession or legal
  possession. Possession in law follows right to possession. The
  right to possession, though distinct from possession, is treated
  as equivalent to possession itself for certain purposes.
H
 SADASHIV SHYAM SAWANT (D) THROUGH LRS. v. 1083
     ANITA ANANT SAWANT [R.M. LODHA, J.]

      17. In Halsbury's Laws of England (Fourth Edition, page       A
617 - para 1111 ), 'physical and legal possession' is
distinguished as under:
     " 'Possession' is a word of ambiguous meaning, and its
     legal senses do not coincide with the popular sense. In
     English law it may be treated not merely as a physical
                                                                    8
     condition protected by ownership, but as a right in itself.
     The word "possession" may mean effective, physical or
   · manual control, or occupation, evidenced by some outward
     act, sometimes called de facto possession or detention
     as distinct ·from a legal right to possession......            C
    'Possession' may mean legal possession: that
    possession which is recognized and protected as such by
    law. The elements normally characteristic of legal
    possession are an intention of possessing together with         0
    that amount of occupation or control of the entire subject
    matter of which it is practically capable and which. is
    sufficient for practical purposes to exclude strangers from
    interfering. Thus, legal possession is ordinarily associated
    with de facto possession; but legal possession may e~ist        E
    without de facto possession, and de facto possession is
    not always regarded as -possession in law. A person who,
    although having no de facto possession, is deemed to
    have possession in law is sometimes said to have
    constructive possession."
                                                                    F
     18. Pollock and Wright in their classic work, 'An Essay on
Possession in the Common Law' (1888 Edition, page 27)
explained the nature of possession, inter alia, as follows:
    "Right to possess or to have legal possession. This
    includes the right to physical possess!on. It can exist apart   G
    from both physical and legal possession; it is, for example,
    that which remains to a rightful possessor immediately
    after he has been wrongfully dispossessed. It is a normal
    incident of ownership or property, and the name of
    1084     SUPREME COURT REPORTS                    [201 O] 2 S.C.R.

A        ·property' is often given to it. ...
                Right to possess, when separated from possession,
         is often called 'constructive possession.' The correct use
         of the term would seem to be coextensive with and limited
         to those cases where a person entitled to possess is (or
B        was) allowed the same remedies as if he had really been
         in possession .... ".
          19. A landlord by letting out the property to a tenant does
     not lose possession as he continues to -3tain the legal
c    possession although actual po_ssession, user and control of that
     property is with the tenant. By retaining legal possession or in
     any case constructive possession, the landlord also retains all
     his legal remedies. As a m~tter of law, the dispossession of
    tenant by a third party is dispossession of the landlord. The
0   word "dispossessed" in Section 6(1) must be read in this
     context and not in light of the actual possession alone. If a tenant
     is thrown out forcibly from the tenanted premises by a
    trespasser, the landlord has implied right of entry in order to
     recover possession (for himself and his tenant). Similarly, the
E   expression "any person claiming through him" would bring
    within its fold the landlord as he continues in legal possession
    over the tenanted property through his tenant. As a matter of
    fact, c:i plain reading of Section 6(1), it is clear that besides
    the person who has been dispossessed, any person claiming
    through him can also file a suit seeking recovery of possession.
F   Obviously, a landlord who holds the possession through his
    tenant is competent to maintain suit under Section 6 and
    recover possession from a trespasser who has forcibly
    dispossessed his tenant. A landlord when he lets out his
    property to the tenant is not deprived of his po.;session in the
G   property in law. What is altered is mode in which the landlord
    held his possession in the property inasmuch ~.s the tenant
    comes into·physical possession while the landlord retains
    possession through h_is tenant. The view of Calcutta High Court
    that wher~ the tenant was forcibly ejected from. the land by the
H   third party, it may reasonably be held that landlord has also
 SADASHIV SHYAM SAWANT (D) THROUGH LRS. v. 1085
 •   ANITA ANANT SAWANT [R.M. LODHA, J.]

been dispossessed is the correct view. We find ourselves in            A
agreement with the view of Bombay, Patna, Pepsu and
Rajasthan High Courts and hold, as it must be, that there is
nothing in Section 6 of the Act to bar a landlord from suing a
trespasser in possession even when, at the date of
dispossession, the property is in actual occupation of a tenant        B
entitled to possession. The views expressed by Madras High
Court in Veeraswami Mudali 1 and (Kanneganti)
Ramamanemma 5 and by Nagpur Judicial Commissioner in the
case of Ramchandra 4 do not lay down the correct law.
     20. Now we advert to the incidental question whether in           C
such a suit, tenant is a necessary party. Section 6 of the Act
provides that suit to recover possession under the said
provision could be filed by the person who is dispossessed or
any person claiming through him. The tenant having lost the
possession though without his consent to a third party, may not        D
be interested in recovery of possession. He may not be
available. He may not like to involve himself in litigation. In such
circumstances, if a landlord brings the suit to recover
possession against trespasser under Section 6, it cannot be
laid down as an absolute proposition that tenant must                  E
necessarily be impleaded as party to such suit. The view of
Bombay High Court in Ratanlal Ghelabhai7 that landlord can sue
in his own name where there is an injury to the reversion
exposits the correct position of law. It may be desirable that a
landlord in a suit under Section 6 of the Act against a trespasser     F
for immediate possession when, at the date of dispossession,
the house was in occupation of a tenant, impleads the tenant,
but his non-impleadment is not fatal to the maintainability of
such suit. The view of Madras High Court in (Kanneganti)
Ramamanemma5 and of other High Courts following that view              G
do not appear to us as laying down correct law.
     21. In the result, appeal fails and is dismissed with no order
as to costs.

D.G.                                          Appeal dismissed.        H