M. TABASSUM AFTAB ALVI, J. - The supra titled appeal has been addressed against the impugned judgment and decree passed by Additional District Judge, Muzaffarabad on 2.6.2007 whereby judgment and decree passed by Senior Civil Judge, Muzaffarabad dated 24.8.2005 pertaining to dismissal of suit of appellants filed under Section 9 of the Specific Relief Act, 1877 were upheld.
2. Precise facts giving rise to the instant second appeal are that appellants/plaintiffs filed a suit for recovery of possession under Section 9 of the Specific Relief Act, 1877 pertaining to land bearing survey No 871 (old) 1308 (present) khewat No. 29 measuring 16 marlas and survey No. 916 (old) 1251 min (present) measuring 6 marlas situated in Sari Dara before Senior Civil Judge, Muzaffarabad on 28.7.2004. After obtaining written statement, framing issues, recording evidence and hearing, the above-mentioned suit was dismissed vide judgment and decree dated 24.8.2005. Feeling aggrieved from the above judgment and decree the appellants/plaintiffs filed an appeal before District Judge, Muzaffarabad, which was made over to Additional District Judge, Muzaffarabad for hearing and disposal under law. The learned Additional District Judge, Muzaffarabad after hearing, concurred with the Trial Court and dismissed the appeal filed by appellants/plaintiffs vide impugned judgment and decree dated 2.6.2007. Against the above-mentioned impugned judgment and decree the instant appeal was filed before this Court on 18.6.2007.
3. The learned counsel for respondents, Sheikh Abdul Aziz, Advocate has raised a preliminary objection that suit was filed by appellants/plaintiffs under Section 9, of the Specific Relief Act, 1877 which was dismissed by the Trial Court on merit vide judgment and decree dated 28.7.2004 against which no appeal is competent as contained in the last part of the above section.
4. The learned counsel for appellants/plaintiffs, Mir Tanveer Hussain, Advocate while controverting the arguments of learned counsel for respondents/defendants submitted that the above- mentioned objection was not raised before the first Appellate Court, therefore, the same cannot be raised for the first time before this Court. The learned counsel further submitted that in the interest of justice, case may be decided, on merit.
5. After hearing learned counsel for the parties at length, I have perused the contents of appeal and have also examined the record. Before considering arguments of the learned counsel, it is appropriate to reproduce Section 9 of the Specific Relief Act, 1877, which reads as follows:-- "9. Suit by person dispossessed of immovable property. - 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 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 possession thereof.
No suit under this section shall be brought against the Central Government or any Provincial 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 order or decree be allowed."
6. It will be seemed that the last part of Section 9 expressly prohibit an appeal from any order or decree passed in any suit instituted under this section. The power of review is also similarly taken away in respect of any such order' or decree. The intention of the law-makers clearly seems to be to give finality to orders and decrees passed in suits under this section. The section provides a quick remedy for the recovery of possession where a person is dispossessed from immovable property, otherwise, then in due course of law. The plaintiff is not required to establish his title to the property and he can succeed by merely showing previous possession and wrongful dispossession.
In other words, the object of the section is clearly to discourage forcible dispossession. The proceedings under this section do not constitute a bar against either of the parties suing to establish his title to the property and to recover possession thereof. Thus, the party adversely affected under Section 9 of the Specific Relief Act, 1877 has an alternate remedy by way of regular suit for establishing title and recovering possession. It is clear, therefore, that any order passed or decree issued under Section 9 of the Specific Relief Act, 1877 is not appealable as contained in the last part of the above section, hence, hence, I upheld the preliminary objection raised by the learned counsel for respondents that the instant appeal is not maintainable. Identical point was arisen before the Lahore High Court in a case titled Dilbar Hussain v. Muhammad Saleem and another (PU 1995 Lahore 495). At page 497 of report, was held as under:-- "I have heard the learned counsel for the petitioner at a considerable length and after going through the order of two Courts below I am not persuaded to agree with him. The facts, which have formed the background of this round of litigation, are not in dispute except the plea of the petitioner. The suit, filed by Muhammad Salim and Muhammad Naeem, which was decreed by the Supreme Court, was, undisputed, under Section 9 of the Specific Relief Act, 1877. The main prayer contained therein was that they had been dispossessed by Inayat A.I and Abdul Majid without their consent and by the use of force. It is clear from the plain language of Section 9 of the Specific Relief Act, 1877 that any decision/dcree rendered or passed by the Court under Section 9 of the Specific Relief Act, 1877 is tentative in nature and is designed to restore the possession of an ousted party quickly and without determining the title of the parties. The decision rendered under the above'provision is neither subject to incident of appeal nor review. From the above, it follows that the orders passed in execution proceedings, being continuation of the suit, are not subject to an incident of appeal or review."
The same point came under consideration before the Hon'ble Supreme Court of Azad Jammu and Kashmir in a case titled Mst. Jhali and others v. La! Khan and another (1993 SCR 53). At page 55 of the report, it was observed by their Lordships as under:-- "The learned counsel for the appellants, Ch. Muhammad Sharif Tariq, took us through the judgment of the learned Sub-Judge in order to prove that the suit had been decided as a suit for possession based on title and not as a suit under Section 9 of the Specific Relief Act. We find that the manner in which the case has been dealt with by the learned Sub-Judge does leave scope for such an argument. It was observed by the learned Sub-Judge that the land in dispute was Shamlat land and it appeared from the documentary as well as oral evidence that the defendants were in possession of 7 kanals of land from the year 1982 while before 1981 the whole land under the relevant survey number measuring 11- kanals and 2 marlas was in possession of the plaintiffs. He further observed that the plaintiffs did not prove as to how much land they were entitled to retain in possession in accordance with their share in the Shamlat. It is clear that the learned Sub-Judge was in total misconception about what he was required to decide in a suit under Section 9 of the Specific Relief Act. What he was required to do was to attend to the question whether the plaintiffs had been dispossessed from any land within six months prior to the filing of the suit and if the finding was in affirmative he was bound under law to put the plaintiffs back in possession notwithstanding any title that may be set-up in such a suit. When the issues were framed in the case the learned Sub-Judge clearly confirmed to the requirements of a suit under Section 9 mentioned above. Out of five issues framed by the Court none related to title issue No. 1 was to the following effect: "whether the suit land is in possession of the plaintiffs." Issue No. 2 was: "whether the defendant forcibly dispossessed the plaintiffs from the suit land in May, 1992 and thus the plaintiffs were entitled to recover the possession." In light of these issues the parties led evidence. A perusal of evidence led by the parties also clearly shows that the parties led evidence only in relation to the issues framed and they confirmed to the requirements of Section 9 of the Specific Relief Act. Now the question is whether Ch. Muhammad Sharif Tariq is right in submitting that the suit had been treated as a Wit Lased on title and, therefore, an appeal was competent to the learned District Judge. We do not find any force in this contention. The plain reading shows that the suit was a suit under Section 9 of the Specific Relief Act. Issues had also been framed in accordance with the requirements of that suit and the parties had led the evidence accordingly. When the learned Sub- Judge attended to the question of title his approach was clearly against law but the illegality committed by the learned Sub-Judge attended to the question of title his approach was clearly against law but the illegality committed by the learned Sub-Judge while disposing of the suit would not change the nature of the suit. If wrong approach of the learned Sub-Judge can change the nature of the suit the party which led the evidence in light of the issues framed by the Court would be badly prejudiced and would suffer on account of the fact that they were never conscious at the time of leading of evidence that ultimately the suit would be treated as stilt based on title, therefore, we hold that the suit was a suit under Section 9 of the Specific Relief Act, and was not based on title. Consequently it should have been decided as such. In our view the unsuccessful party, namely, the present appellants should have been taken the matter to the higher forum to get rectification of the illegality committed by the learned Sub-Judge. The proper forum in the present case was the High Court where a revision petition could be filed. The appellants filed an appeal with the District Judge since the appeal did not lie the appellants placed themselves in a position where no Court is able to help them, even if they have a good cause on merits. It has pained us to see that not only the learned Sub-Judge but also the learned District Judge treated the suit as one based on title and failed to apply his mind not only to the requirements of such suit but also to' the issues framed in the case while finally deciding the appeal. However, that does not change the legal position. The remedies of appeal and revision have been provided by law for the precise purpose of getting wrong decisions vacated." -
7. The contention of learned counsel for appellants. That the instant point was not raised in the Court below, therefore, the same cannot be permitted to be raised is devoid of force. As the point in question is purely a question of law, which can be raised at any time for safe administration of justice, hence, the contention is misconceived, which is hereby repelled.
8. I have also examined the concurrent findings of both the Courts below. The Trial Court after considering documentary and oral evidence of appellants/plaintiffs rightly came to the conclusion that they failed to prove possession over the disputed land. The learned Senior Civil Judge, Muzaffarabad after discussing evidence of each witness of plaintiffs decided issue of possession against them. The learned counsel for appellants failed to point out any misreading or non- reading on the part of the Trial Court, hence, the appellants have got no case even on merit.
9. The nub of above discussion is that findings no substance in the instant appeal, the same is hereby dismissed with costs. .