' These are two civil revisions under section 115, C.P.C. of the Civil Procedure Code against the judgment and decree, dated 30th March, 1982 passed by the learned IlIrd Senior Civil Judge, Hyderabad in Suit No.77 of 1975 filed by the respondents against the applicants, in both the Revisions, under section 9 of the Specific Relief Act, 1877.
2. The facts leading to these Civil Revisions briefly stated, are that respondent No.1 took on lease the agricultural land ad-measuring 487-10 acres, in Deh Soomra and Keti, Taluka Hala, District Hyderabad as mentioned in Schedule 'A' to the plaint, from the applicants in Civil Revision No. 121 of 1982 defendants 1 to 5 in the Suit through registered deed, dated 25-7-1969 for 5 years commencing from Rabi 1969-70 and ending Kharif 1973-74, at the yearly lease money of Rs.50,000.
Respondent No.1 was also put in possession of the land at the time of execution of lease-deed. The applicants in the lease-deed had also authorised respondent No.1 to sub-lease the land to anyone else or transfer the same except to such persons as were the enemies of the applicants.
Respondent No.1, subsequently, took with himself respondents Nos. 2 and 3 as sub-lessees through an agreement, dated 4-3-1970, and all these respondents were enjoying possession of the suit land until they were unlawfully and without process of law ousted therefrom on 1-11-1974. It may be mentioned that respondent No.1 had paid the entire lease-money for the whole period of lease and no amount was outstanding as arrears against him.
3. It was also alleged that applicant No.1 did also execute another agreement of lease in respect of the same land for a further period of seven years to commence after the expiry of the first lease period.
4. It was further alleged that through other lease agreements registered on 26-2-1973, 8-3-1973 and 21-6-1973 the applicants in Revision No. 138 of 1982 defendants Nos. 6, 7 and 8 in the Suit leased out the other lands measuring 340-48 Acres as Scheduled 'B' in favour of Respondents in Revision 138-82 and simultaneously put the said respondents in possession thereof, which continued in their possession until 14-11-1974 when the said applicants in collusion with applicant (Haji Nawab Dawood) dispossessed them without their consent and without due process of law. Ultimately, on 1-11-1974 and 14-11-1974 the applicants in both the Revisions illegally and forcibly ousted the respondents from the lands described in Schedules 'A' and 'B', respectively. Respondent No.1 in Revision 121-82 sent a number of telegrams to the authorities including a telegram to the Prime Minsiter of Pakistan stating the circumstances therein.
5. It was further alleged that applicant No.1 started a campaign against the respondents to harass them in one way or the other and he for himself and for the rest of the applicants was attempting to forcibly dispossess the respondents, from the suit lands though, to the knowledge of the (applicants), the first lease period was to expire with the expiry of Kharif Season of 1974.
6. It was further alleged that all the applicants collided and conspired with each other to illegally and forcibly dispossess the respondents from the suit land and that applicant No. 1 (in Revision 121 of 1982) for all the Respondents in both the revisions on 1st and 14th November, 1974 illegally and forcibly dispossessed the respondents in both the revisions from all the lands comprised in Schedule 'A' and 'B'. Consequently, a suit under section 9 of the Specific Relief Act for the restoration of the possession of the suit land was filed in the III Court of Senior Civil Judge, Hyderabad. The applicants Nos. 1 to 4 in Revision No.121-1982, who put in their appearance and filed their written statement, denied the alleged leasing out the agricultural land , to respondent No.1 and the execution of any lease-deed and putting the respondent No.1 into possession of the suit land. It was also denied that respondent No.1 was authorised to sub-lease the lands to anyone else. It was also contended that the suit was not maintainable under section 9 of the Specific Relief Act and that it was under-valued and barred by Martial Law Regulations 115, and also bad for mis-joinder of the causes of action and for non-joinder of parties.
7. Applicants Nos. 1 and 3 in Revision No. 138 of 1982 defendants Nos. 6 and 8 in the suit also filed written statement. While denying the averments of the plaint it was specifically pleaded that the respondents did not pay the lease money which was due on 15-1-1975 in the sum of Rs.15,625 and that respondent No.1 being interested in the lands of applicants Nos. 1 to 5 in Revision No. 121 of 1982, had taken the lands of applicants Nos. 1 and 3 in Revision 138 of 1982 on lease on account of water and other facilities. It was also pleaded in the written statement that the respondents were not dispossessed from the land in question by the said applicants/defendants 6 and 8 but the land of the said applicants was abandoned by the respondents because they did not continue in the possession of the lands of applicants Nos.1 to 5 in Civil Revision 121-82. It was further pleaded that applicant No.8 had cultivated the lands and spent Rs.44,186 but he could not get the crop due to an injunction granted by the civil Court and the same was taken away by the Haries of the land.
8. From the pleadings of the parties the following issues were framed:-
(1) Whether the suit is not maintainable in law?
(2) Whether the suit is not maintainable in its present form?
(3) Whether the suit is bad for multifariousness?
(4) Whether the suit is improperly valued and plaint is insufficiently stamped?
(5) Whether the suit is barred under provisions of M.L.R. 115?
(6) Whether the plaintiff No. 1 had sub-leased Schedule 'A' Lands to plaintiffs Nos. 2 and 3 and that they remained in possession and enjoyment thereof with plaintiff No. 1?
(7) Whether plaintiffs Nos. 1 to 3 were unlawfully dispossessed and deprived of the Schedule 'A'
Lands by defendant No. 1 in collusion with other defendants on 1-11-1974?
(8) Whether defendant No. 1 in collusion with other defendants forcibly ousted plaintiffs Nos. 4, 5 and 6 from Schedule 'B' Land on 14-11-1974?
(9) Whether defendants Nos. 1 to 5 are entitled to costs under section 35-A, C.P.C? If yes, how much?
(10) What should the decree be?
9. The respondents to prove their case examined respondent No. 1 (Exh.277), Muzaffaruddin (Exh.
288), Rajab Ali (Exh.300) and Akbar Hussain (Exh.303). On behalf of the applicants Nos. 1 to 4.
Applicant No. 1 (Exh.357) examined himself and their witnesses Allah Warayo (Exh.373), Abbas Ali Tapedar (Exh.380). Applicant No. 5 in Revision No. 121-82 and applicant No. 2 in Revision No. 138 of 1982 were declared ex parte, Other applicants in Revision No. 138 of 1982 did not however lead any evidence.
10. The learned Civil Judge by his judgment an,i decree, dated 30th March, 1982 found issues Nos. 1 to 5 and 9 in the negative and issues Nos. 6, 7 and 8 in the affirmative and decreed the suit under section 9 of the Specific Relief Act with the direction that possession of the suit land as comprised in Schedule 'A' be returned to plaintiffs Nos. 1, 2 and 3 respondents in Revision No. 121 of 1982, and the lands mentioned in Schedule 'B' restored to plaintiffs Nos. 4, 5 and 6 respondents in Revision No. 138 of 1982, till the plaintiffs/respondents in both the Revisions are not evicted in due course of law.
11. Against the said judgment and decree, two Civil Revisions have been filed by the applicants/landlords in respect of lands mentioned in Schedule 'A' and 'B' being R.A. No. 121 of 1982 and 138 of 1982, respectively.
12. I have heard Mr.A.K.Brohi and Mr.Naimat Ullah Soomro learned counsel for the applicants and Mr. Nasim Farooqui, learned counsel for the respondents in both the Revisions.
13. Mr.A.K.Brohi, learned counsel for the applicants in Revision No. 121 of 1982 contended firstly that the lease of the Respondents having come to an end in Kharif, 1974 i.e. in or about September, 1974, Respondent's possession of the lands mentioned in Schedule 'A' had become illegal, and as such they being trespassers, the very maintainability of the suit of the respondents is questionable. He submitted that section 9 of the Specific Relief Act, 1877 envisages juridical possession and not possession simplicitor. In support of his submission he relied on a number of decisions namely Abdul Jameel v. Haroon PLD 1969 Kar. 78; Emperor v. Bendhu Singh and others AIR 1928 Patna 124 and Dr. M.C. Batra v. Lakshmi Insurance Co. Ltd. AIR 1946 All.
709.
14. In the first case PLD 1969 Kar. 78 it was observed by Noorul Arifin, J. as he then was, that "where allegations in a plaint are those of ownership, no decree can be passed under section 9 of the Specific Relief Act. Apparently the decision is not applicable to the facts of the present case. The other two cases are the decisions of the Division Benches of the Patens and Allahabad High Courts AIR 1928 Pat. 124 and AIR 1956 All.
709. The relevant observations in the Patna case read as under:- "If the true owner acquiesces or acts otherwise, so that legal possession vests in the trespasser, then he must resort to civil Court and bring a suit either under S.9 or in ejectment, or in trespass for damages. The continuance in possession of the trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the land or as near to it as he dares, to make a claim to it."
15. The observations in Allahabad case read as follows:- "Section 9 says nothing about the nature of the possession enjoyed by the person dispossessed, but it has been held in some cases that such possession must be what is called juridical possession, that is to say possession founded on some right: See 'Amiruddin v. Muhammad Jamal'
15 Born. 685 (A)."
16. In that case as Insurance Company entered into possession of the premises vacated by the supply company peacefully; and it did so, it appears, because it considered that the Supply Company had been its tenant. It was thus observed:- "It may have been wrong in law in so thinking; that question has not been determined, but we cannot say that the Insurance Company had not a sufficient possession to entitle it to file a suit under section 9. We think that save in those cases where the nature of the possession of the plaintiff is clearly such as to result in proceedings under section 9 defeating the purpose of that section, the title of the plaintiff is no more to be enquired into than that of the defendant."
17. On the other hand, Mr.Nasim Farooqui learned counsel for the respondents relied on a number of decisions reported as A.R. Muhammad Siddique v. The Saifee High School Board 1983 CLC Kar.
507, Secretary of State v. Dinshaw Navroji and another AIR 1925 Sind 275; Muhammad Rafi v.
Muhammad Siddiq PLD 1973 Note 20 at p. 31, Riaz and others v. Razi Muhammad PLD 1979 Kar.. 227 and Riaz and another v. Razi Muhammad 1982 SCMR 741.
18. In 1983 CLC 507, it was observed by a learned Single Judge of this Court that in a suit brought under section 9 the plaintiff who has been dispossessed is entitled to succeed merely by proving that (1) he was in possession of the immovable property in suit, (2) that he had been dispossessed by the defendants, (3) that the dispossession was not in accordance with the law and (4) that the dispossession took place within 6 months of the filing of the suit.
19. In AIR 1925 Sind 275 it was observed that:- "Where the tenancy has not -terminated or where on account of certain circumstances it is not open to the landlord to terminate the tenancy there is no reason why he should be allowed to dispossess his tenant without having recourse to law and then to retain possession. which he could not obtain through a Court of law. In the present case though the tenancy is a monthly tenancy it has not been terminated. Apart from the provisions of the Bombay Rent (War Restrictions) Act a monthly tenancy can be terminated only in the manner prescribed under section 108 of the Transfer of Property Act which applies to Sind. In this case no notice to terminate the tenancy has been given by the landlord. There is no express or implied surrender of the tenancy...."
20. For the above view, reliance was placed on Rudrappa v. Narsongrao 1925 29 Born. 213 wherein it was observed that in India the common law right of re-entry by the landlord does not exist and even where the landlord has obtained possession of the premises after the tenancy has been validly terminated it is open to the tenant to institute a suit within six months of dispossession under section 9 of the Specific Relief Act.
21. In PLD 1979 Kar. 227 Mr. Justice Z.A.Channa (as he then was) while dealing with the scope of section 9 observed that a person cannot be denied having recourse to the provisions of section 9 of the Specific Relief Act, merely because he has permitted another person to temporarily use the premises for a specific and limited purpose. In such a case, in the opinion of the learned Judge, he still continues to be in possession of the same that the actual and physical possession may be with another person. Thus, according to the above judgment, the actual and physical possession of the premises is not an essential pre-condition to the filing of the suit under section 9 of the Specific Relief Act and it is enough if the plaintiff can show that either he was in constructive possession of the property or that he had the power of using the property at the relevant time.
22. In PLD 1973 Note 30 the Municipal Engineer under the colour of exercising a jurisdiction forcibly ejected the plaintiff from possession declaring the premises to be dangerous. The conduct of the owner of the building and that of the Municipal Committee was found male fide. It was thus observed by Ghulam Rasool K. Shaikh, J. as he then was that the act was actuated by bad faith to cause injury to the respondent. To allow such an action to be treated to have been taken in due course of law is to defeat the law and perpetuate injustice Evidently, this could not be permitted. It was thus observed that:- "The conduct of the applicant had been dishonest hence he succeeded in evicting the respondent by adopting the dishonest device although the eviction application filed by him was still pending before the Rent Controller. The relief under section 9 of the Specific Relief Act is an equitable relief and the applicant has failed to satisfy that the discretion was not properly exercised by granting the decree in favour of the respondent."
23. In 1982 SCMR 741 it was inter alia, stated as follows:- "This provision of law has four ingredients. Firstly, the person suing must have been dispossessed.
Secondly, such dispossession must be of immovable property. Thirdly the dispossession should be without his consent. Fourthly, dispossession should be otherwise than in due course of law. The two requirements which are contested directly in this appeal and require determination are the last two. Consent obtained by deceit, trick or artifice, as held by the Courts concurrently is according to the learned counsel, consent nevertheless and when such a consent is not lacking, the handing over of the possession cannot be said to be otherwise than in "due course of law".
24. The learned Judges of the Supreme Court disagreeing with the above proposition, held that "the consent obtained, without the element of force or duress, but by deceit, trick or misrepresentation deliberately practised is no consent in the eye of law for the purposes of section 9 of the Specific Relief Act. On account of the same taint, not only the possession obtained by the appellants was without the consent of the plaintiff-respondent, it was also otherwise than in accordance with law."
25. The plaintiff in a suit under section 9 of the Specific Relief Act has to prove that he was in possession of the immovable property and that he was dispossessed from the said property without his consent by the defendant otherwise than in due process of law, within six months prior to the institution of the suit. The object of the section is to prevent the people from taking the law in their hands, however, good their title may be. What the section provides is a summary remedy to a person, who has been dispossessed from immovable property without his consent and otherwise than in due course of law, for recovery of possession without establishing title over the said property. The section does not say anything about the nature of possession enjoyed by the person dispossessed.
26. According to the contention of Mr. Brohi a suit under section 9 cannot be maintained by a person who is manifestly a trespasser, because section 9 would not help to perpetuate an illegality.
In other words, section 9 although is silent about the nature of possession, yet it cannot be attributed that the law will come to the rescue of a person who is shown to be a rank trespasser having no title, right or interest in the property from the very begining since he entered into possession of the property. In this regard let me put down that Mr. Farooqui conceded that section 9 requires the plaintiff to be in legal possession and that a trespasser cannot seek summary relief under section 9 of the Specific Relief Act. I, however, feel reluctant to accept the proposition, as advanced by Mr. Brohi and cancelled by Mr. Farooqi because the section itself seems to be concerned with the fact of possession and not the 'title or right to possession.' In this respect, I may refer to two decisions namely Tamizuddin v. Ashrub Ali I L R 31 Cal. 64 (F.B.) and Shiv Ram Batta v.
Punjab Textile Mills Ltd. PLD 1949 Lah. 143 (F.B.)
27. In the first case Tamizuddin v. Ashrub Ali (31 Cal. 647) of the Calcutta High Court chose, J. said at page 656 of the report that under section 9 "a summary remedy is applicable alike to a person whether he be a trespasser, a tenant or an owner of the land when he is ejected without due course of law."
28. In the second case of Muhammad Khan son of Ali Sher and others v. The Crown PLD 1949 Lah.
421 the facts were different but the following observation by Mr. Justice Muhammad Munir, the then acting Chief Justice of Lahore High Court, later on the Chief Justice of Pakistan, is pertinent:- "His position after the partition was that of a pure trespasser, and though nobody has a right to dispossess by force a trespasser who is in settled possession of land, and such trespasser is entitled to defend by force his possession even against the rightful owner unless he is evicted in due course of law, he is not entitled to rely on a stray act or even intermittent acts of trespass as giving him a right to possession as against the true owner."
29. This observation clearly implies that a person who has got settled possession cannot be evicted except through a Court of law,
30. In any case, I am not called upon to decide the question of a trespasser as it does not arise in this case. The present case is that of a lessee and not a trespasser ab initio. In such circumstances, the respondent invoking jurisdiction under section 9 of the Specific Relief Act were to show that their first entry on the immovable property was legal. As their possession is that of'lessees, the lease-hold rights were continuing on the day of dispossession, either under a contractual tenancy or statutory tenancy. Even after the tenancy has been validly terminated, and they are dispossessed without their consent and in an unlawful manner, while they were holding over, they have got a right to file suit under section 9 of the Specific Relief Act for restoration of possession to them.
31. For the above view, I am supported by a decision reported as Azim Khan v.. State of Pakistan and another PLD 1957 (W.P.) Kar.
892. In that case Z.H. Lari and Wahiduddin Ahmad, JJ.(as they then were)observed that:- "This clearly stipulates that no person has a right to eject a person in possession except through the instrumentality of a Court of Law. The common-Law right conceded to a lessor in England cannot be granted to a lessor in Pakistan. The effect of section 9 of the Specific Relief Act has been construed in a number of Indian cases. The earliest case is that of Kunhi Komapen Kurupu v.
Ghangarachan Kandil Chembata Ambu (2 M H C R 313). Their Lordships observed as follows:- "In cases under that section a lessor, who had dispossessed otherwise than by due course of law a lessee whose term had expired, would be compelled to restore possession to the lessee. The plain object is to discourage proceeding calculated to lead to "serious breaches of the peace and to provide against the person who has taken the law into his own hands deriving any benefit from the process. It was intended to obviate the effect of the possible application of English law to such cases. That law, as laid down in Harvey v. Bridges is that the free holder, if entitled to eject the person in possession, may commit an indictable offence in doing so, and yet gain all the advantages of a legal possession and be perfectly secure against the action of the party assaulted."
Similar views were expressed in the Full Bench case Wall Ahmad Khan and other v. Ajudhia Kandu I L R (13) All. 537, Sofaeli Khan and another v. Woopean Khan (9 WR 123) and Rudrappa Bin Sankappa v. Narsingrao Ramchandra Keblikar and another ILR 1905 Bom. 213).
There are various authorities which support the view taken above that a lessor cannot on his own eject a lessee even though his tenancy might have been terminated. In the case of Nanak Chand and others v. State of Uttar Pradesh and others AIR 1955 All. 165 their Lordships observed:- "The petitioners do not really desire a decision in this petition with respect to their right and its nature in the land they occupy. Their main grievance is against the legality of the order directing their ejectment by force through the help of the police. Nothing has been shown on behalf of the opposite parties which would justify the aforesaid orders, dated the 2nd and 8th of February, 1954.
Whether the petitioners have got any right in the land in dispute or not, they are the persons in possession of the land and in case they have no right in the land they can be ejected under a proper process of law.
' Ordinarily they should be sued for ejectment. If they were to be evicted by the opposite parties by force, there should be some law Which gives this power to the opposite parties. No such law has been referred to us."
' The Learned Judge of the Pepsu High Court in the case of Mohinder Singh v. State of Pepsu and another AIR 1955 Pepsu 61 observed:- "It may be, and it probably is true, that the petitioner has no valid title to the land, but that is a matter that would come for decision by a Civil Court when the respondents should attempt to dispossess the petitioner of the land by a regular suit in a Court of law. It is admitted on behalf of the respondents by their learned counsel that there is no summary procedure provided by law in this state whereby the executive authorities can dispossess a man of immovable property as has been done in the present case. It is, therefore, manifest that the action of the respondents in dispossessing the petitioner of their land by executive action and without recourse to law is illegal and without jurisdiction.
32. Applying the above principle and case-law to the present case, the respondents/plaintiffs were admittedly inducted into possession of the land mentioned in Schedule 'A' and 'B' under valid registered Lease deeds. Even if the lease in case of lands mentioned in Schedule 'A' came to an end before the cause of action accrued to the respondents, they had a right to be and remain in possession as holding over the tenancy and they could not be ejected forcibly without taking recourse to the proceedings under Transfer of Property Act, 1882, which governed the leases in question. So the first contention of Mr. Brohi, as discussed above, has no force. Furthermore since the lease in respect of lands mentioned in Schedule 'B' had not even expired the re-entry by the applicants in Revision No. 138 of 1982 has no sanction behind it.
33. Mr. Brohi, then, made the following submissions: -
(1) Admittedly at the time of the alleged dispossession the respondent No.1 was not present. His son Abdur Rehman and his alleged sub-lessee Muhammad Din were present. Abdur Rehman did not examine himself. With the evidence of Muhammad Din, the only eye-witness, the alleged event of dispossession and setting the documents on fire cannot be said to have been proved properly and sufficiently.
(2) A suit being No.251 of 1974 for declaration and injunction was filed in the Court of Senior Civil Judge, Hyderabad by the respondent. This suit pertained to the lands mentioned in Schedule 'A'. On the date of the filing of the said suit i.e. 7-11-1974 it was stated in the plaint that the respondents were in possession; so the allegation that the respondents were dispossessed on 1-11-1974 stands falsified.
(3) Regarding the proof of the despatch and receipt of the alleged telegrams no postman was examined. As such the telegrams cannot be said to have been proved. No reliance can thus be placed on them.
(4) The possession of the land in question was handed over by respondent No.1 himself to the applicants.
(5) In any case and without prejudice to the above, the lands after the lease had come to an end were attached on 31-10-1974 under the Land Revenue Act, 1967 for recovery of arrears of land revenue from respondent No.1. The respondents, therefore, were not in possession of the lands on 1- 11-1974.
(6) The respondents should have joined as co-defendants the high officials of the Police Department with whose help the applicants are alleged to have obtained possession of the suit land forcibly.
(7) The alleged dispossession of suit land mentioned in Schedule 'A' and 'B' though stated in the plaint to have taken place on 1-11-1974 and 14-11-1974, respectively, but it was deposed by applicant No.1 (Nawab Haji Dawood) on the suggestion of the respondents' counsel that the event as alleged took place on one day only. There are certain other discrepancies which show that respondent No.1 detracted from his case in the plaint in his subsequent deposition.
(8) The private criminal complaint filed by the respondent's son against the police officials does not cite the applicants as co-accused.
(9) The lease in favour of the respondents in respect of lands mentioned in Schedule 'A' having expired, no relief can be granted. Even if possession is restored the question would arise about its terms. A contract is always qualified by its terms. The Court cannot make a new contract of lease and decide its terms, on its own.
(10) The learned lower Court referred to certain papers in the two files produced by respondents witness Muzafaruddin, who had not been cross-examined as he was Called only to produce file and was not given an oath. The learned Judge thus referred to evidence which was not proved and illegally made it a basis of the judgment against the applicants.
34. Before dealing with the above submission of Mr. Brohi, I must consider an objection of Mr.Nasim Farooqui made during the course of the above submissions that Mr. Brohi, it seems, while making most of the above submissions was arguing the case as if it was a first appeal. Thus, the question arose as to the scope of section 115, C.P.C. Mr. Farooqui cited a number of decisions both from Pakistan as well as India, but he was not found methodical in citing those decisions. This may be on account of the fact that this case was argued at intervals. However, I intend to group them into two categories; (1) relating to the question of the scope of section 115, C.P.C. in general, and (2) its scope in relation to section 9 of the Specific Relief Act. Thus, before dealing with the above submissions of Mr. Brohi, I would like to examine the question of the scope of section 115, C.P.C. in general, and with reference to section 9 of the Specific Relief Act in particular.
35. In the first category Mr. Farooqui cited the following cases, namely:- ' Umar Dad Khan and another v. Tile Muhammad Khan and 14 others PLD 1970 SC 288; Binode Hambram v. State of West Bengal AIR 1972 SC 2378 and S. Zafar Ahmed v. Abdul Khaliq PLD 1964 (W.P.) Kar.
149.
36. In PLD 1970 SC 288 it was observed as follows:-- "It is not disputed that the trial Judge had the jurisdiction to pass the order, dated the 24th June, 1966. It is also not the case of the appellants that the trial Judge had omitted to exercise jurisdiction vested in him by law while making that order. It must follow, therefore, that even if the impugned order was a 'case decided', though we have held that it is not so, there was no jurisdiction in the High Court to interfere with it under clause (c) of section 115, C.P.C. The revision petition filed by the appellants should, therefore, have been dismissed on the ground only that it was not competent in law. We appreciate the anxiety of the learned Judges to correct an error which has occurred in the trial of a suit. This, however, does not justify transgressing the boundaries of their jurisdiction vested by law. In practice it causes inordinate delay in the disposal of civil suits which are notoriously trady in their progress and adds appreciably to the back log of cases in the High Courts."
37. In AIR 1972 SC 2379 it was observed by the Supreme Court of India that the jurisdiction of the High Court under section 115, C.P.C. is a limited one. It referred to a decision of the Privy Council reported as Balakrishna Udayar v. Vasudeya Aiyar AIR 1917 P C 71 wherein it was observed that the decision is not provided against the conclusions of law or fact on which the question of jurisdiction is not involved. In N.S. Venkataoiri Ayyangar v. Hindu Religious Endowments Board AIR 1949 P C 156 the Judicial Committee said that section 115 empowers the High Court to satisfy itself on three matters. (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate Court on question of fact or law. The Supreme Court of India in the aforesaid case also referred to its earlier decision reported as Pandurang Dhandi v. Maruti Hari Jadhay AIR 1966 SC 153 in which it had observed thus:- "The provisions of section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As clauses (a)(b) and (c) of section 115 indicate, it is only in cases where the suboridnate Court has exercised a jurisdiction not vested it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns. the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour, of the party raising them would oust the jurisdiction of the Court and so an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdictions of that Court, cannot be corrected by the High Court under section 115."
38. The Supreme Court of India also referred to its earlier two decisions in the said case. In Manindra Land and Building Corporation Ltd. v. Bhutnath Baneries AIR 1964 SC 1336 and Abbasbhai v. Gulmnabi AIR 1964 SC 1341 it was held that a distinction must be drawn between the errors committed by subordinate Courts in deciding questions of law which have relation to, or are concerned with questions of jurisdiction of the said Court, and errors of law which have no such relation or connection.
39. In the celebrated decision PLD 1964 (W.P.) Kar. 149 by a Full Bench of seven Judges of the erstwhile High Court of West Pakistan Karachi Bench headed by Manzur Qadir, C.J. as he then was.
Mr. Farooqui invited my attention to the following observations appearing at page 155 of the report:- "Section 115 of the Code of Civil Procedure does not concern itself directly with justice or injustice It is not a power to substitute what appears to the revisional Court to be correct view of the merits of a case whether legal or factual, for a view of the merits of the case that appears to it to be erroneous. Section 115 is not concerned with these matters. It is, on the contrary, concerned only with the exercise of jurisdiction. If no jurisdiction that is not vested is exercised; if no jurisdiction that is vested is declined and if in the exercise of a material irregularity, the question of using powers under section 115 does not arise, however gross an error of law or fact might have been committed in the determination of the merits of the claim and however grave the injustice might be."
40. The position with reference to section 115 was summarised in the following proposition:-
(i) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision,
(a) has exercised or assumed a. jurisdiction not vested in it by law, or
(b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or
(c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or
(d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got but for the fact that step was taken."
41.. Mr. Farooqui also placed his reliance on an unreported judgment in Revision Application No.176 of 1982 by a learned Single Judge of this Court whereby he dismissed the Revision Application holding that section 115, C.P.C. related to jurisdictional defect.
42. I may also refer to a decision of the Privy Council reported as N.S.Venkatagiri Ayyangar v. Hindu Religious Endowments Board AIR 1949 P C 156. In that case, the High Court had interfered with the decision of the lower Court on the ground that the subordinate Court had made a serious mistake in the construction of sale. It was then held by the Privy Council that the order of the High Court was without. jurisdiction and must be set aside. Thus on the scope and applicability of section 115, C.P.C. it was observed by the Privy Council as under:- "Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters, (a) That the order of the subordinate Court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdiction; and (c) That in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in 'that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law."
43. Mr.Farooqui while citing the second category of cases contended that in a revision filed against decree passed in suit under section 9 of the Specific Relief Act, the scope is limited as no appeal or review has been provided against such a decree. He placed his reliance on the following cases:- Abdul Bari v. Asrab Ali AIR 1953 Assam 158 and Sitla Din v. Mohan and another AIR. 1937 Oudh 183.
44. In the Assam case the plaintiff was in occupation of 5 Pawas 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 and denied that he dispossessed the plaintiff forcibly as alleged. The main question in the case was whether in those circumstances interference in the revision would be justified in a case covered by section 9, Specific Relief Act. It was thus observed:- "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 dismissal under a misrepresentation as to the scope of section 9 or there is some defeat of jurisdiction or other defect of a like nature."
45. After discussing the case-law on the point, the learned Judge held:- "Whether interference in a particular case is justified would depend on the circumstances of each 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. 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 convert a petition of revision into an appeal which the law expressly disallows."
46: In AIR 1937 Oudh 183 it was observed that relief should not be granted in revision under section 115, C.P.C. as the power under section 115 is discretionary. But this case has no application to the instant case as in that case the suit under section 9 of the Specific Relief Act had been dismissed and the discretionary relief was refused to be granted to the plaintiff under revisional jurisdiction by the High Court, as it was found that the jurisdiction of the civil Court was barred in respect of the major portion of the relief claimed.
47. Mr. Farooqui further submitted that the remedy of the applicants, if any, lies in filing a civil suit for possession based on title. In support of his submission, he relied on a decision reported as Ramkrishana Balwant Shindikar v. Satwarkondo Lahan AIR 1949 Nag, 126 wherein it was observed that:- "The Specific Relief Act has provided a remedy for a person who is aggrieved by the decree passed in a suit under S.9, Specific Relief Act. His remedy is by way of a suit based on title. It is well- established that the High Court does not, except in a very extreme case, interfere by way of revision, where a separate remedy is available to the applicant."
48. He also relied on Badri Das and others v. Mst. Dhanni and another AIR 1934 All. 541 wherein it was observed:- "The questions of whether the decisions of the trial Court on these points are right or not are questions of fact and law and they may be right or wrong, but the decisions in themselves are not direct questions of jurisdiction or any of the similar questions, that would render the case open to revision under section 115."
' The learned Judge referred to an earlier decision reported as Jawala v. Gangs Prasad (1908) 30 All. 331 wherein it was held by a Division Bench of that Court that:- "When a suit under S.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."
49. Mr. Brohi exercising his right of reply did not advert to any of the cases cited by Mr. Nasim Farooqui except the unreported judgment as stated above, about which he rightly submitted that it was a case relating to interim relief of injunction which was purely a discretionary matter resting with the trial Court and the first appellate Court, and hence inapplicable to the facts of the present case.
50. Mr.Naimatullah Soomro, however, relied on two cases reported as Iltafur Rehman v. Bostan 1968 SCMR 1350 and Jamiyat Ali v. Mrs. Chemon Ara Begum and others PLD 1968 Dacca 190. In the Supreme Court case it was held that concurrent findings of lower Courts can be interfered with in revision under section 115, C.P.C. if the findings are based on no evidence. In PLD 1968 Dacca 190 a Division Bench of the Dacca High Court observed that erroneous decisions of facts are not ordinarily revisable in revision but decisions based on no evidence or inadmissible evidence and so perverse as resulting in grave injustice and hardship can be interfered with by High Court in revision.
51. The scope of section 115, C.P.C. in the light of the various decisions cited above, may be re-stated by me as under:- ' The revisional jurisdiction of the High Court can be properly invoked when the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. Thus an erroneous decision on facts and law having no relation to the questions of jurisdiction cannot be corrected.
However, the findings of facts can be interfered with if it is based on no evidence or inadmissible evidence and so perverse resulting in grave injustice. A grave error of procedure in relation to jurisdiction to try the case resulting in ultimate decision can also be corrected.
52. In the light of the above position of law, as has emerged under section 115, C.P.C., I now proceed to examine the various submissions made by Mr. A.K. Brohi, learned counsel for the applicants as stated by me in respect of Revisions No.121/82, in para. 33 supra.
53. On a cursory glance it appears that none except submissions Nos. 3, 6, 9 and 10 may perhaps be said to be of jurisdictional nature so as to call for on interference of this Court under section 115, C.P.C. However, I propose to deal with all of them one by one.
54. The first submission relates to the sufficiency or insufficiency of evidence. It is not a case of total absence of evidence. However, the evidence of Muhammad Din cannot be read in isolation. It is to be read alongwith other evidence which may not be the evidence of the event at the spot but .is certainly a type of evidence which is relevant to the event of the alleged dispossession, and the learned trial Court has acted within its competence to place its reliance on the evidence as a whole.
55. The second submission has again no relevance to the jurisdictional fact. It may fall within the ambit of 'appreciation of evidence' by the trial Court which, again, is within the competence of the trial Court unless it is shown to be highly perverse. In any case, the plaint in suit No.251 of 1974 was not produced in evidence before the trial Court.
56. The third submission has some force but a summary of the several telegrams seems to have been incorporated by respondent No.1 in his telegram sent to the then Prime Minister of Pakistan, which, has been reproduced in the plaint. It matters little if its despatch has been proved or not. It was an averment in the plaint as to its contents which stood duly proved by respondent through his deposition in Court.
57. The fourth submission is a pure question of fact which the applicants have failed to establish in their favour before the trial Court.
58. The fifth submission is also without any substance. Apart from the apparent illegality committed by the Revenue authorities in not complying with the provision of sections 81 to 83 of Land Revenue Act, 1968 relating to attachment and distraint, the alleged attachment did not pertain to the land. It cannot, therefore, be said that the respondents were dispossessed from the land under the cover of the alleged non-payment of Government dues and so by due process of law under the orders of the Revenue authorities.
59. The sixth submission has no relevance to a suit under section 9 of the Specific Relief Act. The suit cannot fail on that account.
60. The seventh contention is again beyond the purview of section 115, C.P.C. Even if there is some discrepancy in the statement of respondent No.1 and the averment made in the plaint it would not attract the provisions of section 115, C.P.C., as the finding is not perverse. In any case, the suit has been filed within six months of dispossession.
61. The eighth submission is again of some inferential value which falls within the competence of the trial Court and is outside the pale of section 115, C.P.C.
62. The ninth submission is beside the point. The trial Court under section 9 of the Specific Relief Act is to satisfy itself about the plaintiffs having been dispossessed from the land in question without his consent and otherwise than in due course of law. After it is so found the possession is ordered to be restored. The section, however, itself provides that it will be open to the owner to dispossess the said person by filing a regular suit in the civil Court. He may also claim use and occupation charges/mesne-profits but, in the present case, it cannot be a bar to the grant of a decree for restoring possession to the respondents, unlawfully dispossessed, on the basis of possessory title.
63. The tenth and the last submission has some substance. The learned trial Court appears to have referred to a copy of the report of the learned District Public Prosecutor which is to the following effect:- "The plaintiff has also examined Mazaruddin Assistant Superin tendent of Commissioner's Office as Exh.288 and he has produced three files in connection with the dispute between plaintiff and the defendant as Exhs.289 to 292 and in file No.289 on its page No.180 and 181 there is a copy of the report of learned D.P.P., dated 10-4-1978 contents of which show that learned D.P.P. after examining all the reports of the then Deputy Commissioner and the correspondence addressed to the Secretary of Chief Minister Sind has opined that it is an admitted position that plaintiff was in possession of land in question and that he has also moved the relevant authorties for protection and same was denied and on the contrary the other side was given assistance of police force in order to get them possession of the ground that land automatically reverted back to the owner after expiry of the lease period and that the D.G. has acted beyond his powers. He has further opined that a criminal prosecution can be launched against those whom are responsible for illegal acts and he has advised for the investigation through independent agency or for registration of case. This document has come out of the file of the Land Revenue authorities themselves and it clearly go to prove the male fide, conduct of the then Deputy Commissioner."
64. I agree with Mr. Brohi that the said report though forms part of the file produced before the trial Court, was not proved in law and could not be relied upon by the trial Court but in the face of the entire evidence produced in the case it cannot be said that it has adversely affected the case of the applicants so as vitiate the whole judgment. If the above observation is taken out of the judgment there is left sufficient evidence to sustain the finding of dispossession otherwise than in due course of law, as recorded by the trial Court.
65. Mr.Naimatullah Soomro having adopted the arguments of Mr. Brohi submitted in the end that the respondents in Revision No.138-82 had abandoned their possession of the suit land 'B'. The submission is without any foundation. The applicants did neither examine themselves nor produce any evidence. As such the plea is not only untenable in law but also unbelievable. Had it been so the -applicants might have offered possession of the suit land to the respondents just after institution of the suit against them.
66. In the result, I find no justification to interfere with the judgment and decree passed by the learned trial Court. The revisions are therefore, dismissed. The parties will, however, bear their own costs.