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1952 DIGILAW 19 (GAU)

Abdul Bari v. Asrab Ali

1952-02-26

RAM LABHAYA

body1952
This petition of revision is directed against an order of the Munsiff of Cachar dated 30-6-1951 by which plaintiff's suit for possession of the disputed land was decreed under S. 9, Speci­fic Relief Act. (2) Plaintiff's case was that he was in occupa­tion of 5 powas of land under his Mirasdar and he was dispossessed forcibly on 12-6-1950 by the defendant. Defendant pleaded that he had been in possession of the suit land under one Arju Mia and others End denied that he dispossessed the plaintiff forcibly as alleged. (3) The trial Court found on the evidence, direct' and circumstantial, that the plaintiff was in pos­session of the property and had been dispossessed. He also found that the dispossession occurred on 12-6-1950. On these findings, he decreed the claim. (4) The learned counsel for the defendant peti­tioner has contended before me that the findings arrived at on the two questions that arose in the case are erroneous. He has pointed out that the learned Munsiff was influenced to a considerable extent by the fact that the plaintiff admittedly had his 'bari' on the 'bhita' left by Esub and Ya-kub, the previous occupants of the land. It is true that this circumstance has been considered as a relevant piece of evidence arid the learned counsel does not dispute its relevancy. The land in dispute is admittedly contiguous to the 'bari' which is in plaintiff's possession. His contention that he came in occupation of the land after the previous occupants receives support from his ad­mitted possession of the 'bari'. There is also direct evidence consisting of the statements of two wit­nesses which show that he was in possession and had been dispossessed. (5) As regards the date of dispossession, the allegation in the plaint was that the date on which dispossession occurred was 12-6-1950. As this allegation was supported by the criminal litigation that followed the learned Munsiff accepted this date as the date of dispossession notwithstanding the fact that the plaintiff in his statement before him could not give any definite date of disposses­sion and made an indefinite statement that dis­possession occurred in Baisakh or Jeth. The learned. Munsiff considered the evidence in the light of the documentary evidence that was avail­able and found that dispossession occurred on the date alleged in the plaint. (6) Mr. The learned. Munsiff considered the evidence in the light of the documentary evidence that was avail­able and found that dispossession occurred on the date alleged in the plaint. (6) Mr. Dam assails the correctness of this find­ing mainly on the ground that the plaintiff him­self did not give any definite date in his state­ment in Court. (7) The main question in the case is whether in these circumstances interference in revision would be justified in a case covered by S. 9, Specific Re­lief Act. An order under Section 9 of the Act is not appealable and is also not open to review. These remedies are not allowed to an aggrieved party under Section 9 of the Act. The aggrieved party can institute a suit on the basis of title. In­terference in revision, therefore, has been gene­rally declined even though Section 9 does not ex­clude the remedy by way of revision altogether. Interference is normally restricted to cases where there has been no proper trial of the case at all or the suit has been dismissed under a misappre­hension as to the scope of Section 9 or there is some defect of jurisdiction or other defect of a like nature. (8) In - 'Ajodhiya Prasad v. Ghasi Ram Prem Sai', AIR 1937 Nag 326 (A), the suit was dismiss­ed on a mistaken view of the law and interference was considered justified. This case has been relied on by Mr. Dam but it is clearly distinguish­able. (9) In - 'Badudas v. Mt. Dhanni', A. I. R. 1934 All 541 (B), the view that prevailed was that when a su'.t under Section 9, Specific Relief Act, is de­creed the remedy of the defendant lies not in re­vision but in the institution of a suit for a decla­ration of the defendant's title and for possession. (10) In - 'Ramamanemma v. Basavayya', AIR 1934 Mad 558 (C), it. was held that in a suit- under Section 9, Specific Relief Act, the plaintiffs have their remedy by way of suit and hence the High Court will not ordinarily interfere by way of revision. But if the remedy is clear, the parties will not necessarily be driven to another suit. was held that in a suit- under Section 9, Specific Relief Act, the plaintiffs have their remedy by way of suit and hence the High Court will not ordinarily interfere by way of revision. But if the remedy is clear, the parties will not necessarily be driven to another suit. In this case the Court of first instance had found in favour of the plaintiff on the merits of the case but had non-suited her on the ground that she could not bring a suit as the tenants were in occupation. It was found that a suit by a land­lord for possession' under Section 9 in which the tenants in possession have not joined is not main­tainable. (11) In - 'Bhojraj Krishnarao v. Seshrap Diwa-karrao', AIR 1949 Nag 126 (D), it was laid down that remedy of a person aggrieved by the decree passed in a suit under Section 9, is by way of a suit based on title and the High Court will not except in a very extreme case, interfere by way of revision as a separate remedy is available to the aggrieved party. (12) The same view was expressed in - 'Rajai Singh v. Suraj Bali', AIR 1942 Oudh 179 (E). It was held in this case that an order or a deeree passed under Section 9, Specific Relief Act, has not been made the subject of any appeal or re­view, and although the High Court is not preclud­ed from interfering with such orders in revision under S. 115, C. P. C., such interference should be confined to cases of very exceptional nature. (13) The conclusion which may be drawn from the authorities referred to above may be stated thus. Whether interference in a particular case is justified would depend on the circumstances of leach particular case. The rights of the aggriev­ed party may be so clear that it may not be desir­able to force him to institute another suit. The case may have been disposed of on an obvious mis­apprehension as to the legal position. There may be some defect of jurisdiction. The rights of the aggriev­ed party may be so clear that it may not be desir­able to force him to institute another suit. The case may have been disposed of on an obvious mis­apprehension as to the legal position. There may be some defect of jurisdiction. But where no exceptional circumstances are brought out and the only contention raised is that the finding on a question of fact is not based on adequate evi­dence or is erroneous, interference would not be justified, for if a petition of revision is entertain­ed on the ground that the finding on a question of fact is erroneous or based on evidence which is not adequate, it would be going against the spi­rit of S. 9. Its effect would be to convert a petition of revision into an appeal which the law expressly disallows. (14) I am not satisfied in this case that the find­ings arrived at by the learned Munsiff can be re­garded as erroneous. In any case, this case has got no exceptional or unusual features which would attract the revisional jurisdiction of this Court. The petition of revision is, therefore, dis­missed. Revision petition dismissed.