' Muhammad Qasim has filed this petition under section 115, C.P.C. For revision of the judgment dated 20-12-1993 passed by learned Additional District Judge, Mansehra whereby the judgment and decree dated 10-2-1993 passed by Civil Judge 1st Class Balakot in Suit No,168/1 of 1989 were set aside and the case was remanded to the said original Court for purposes of re-demarcation of the suit property in accordance with the observations made by the learned higher Court.
2. The relevant facts giving rise to the present Es are that Muhammad Qasim petitioner filed a suit in the Court of Civil Judge 1st Class Balakot for possession of the suit property wherefrom he had been forcibly dispossessed by respondents-defendants and also prayed for a permanent injunction restraining the respondents-defendants from interfering with the suit property as consequential relief. The suit was contested by the defendants-respondents, and, the learned trial Court reduced the pleadings of the parties into 11 issues. Evidence was adduced by both the parties and after hearing the learned counsel for the parties the suit was decreed in favour of Muhammad Qasim plaintiff-petitioner as against Najja and others defendants-respondents. This judgment and decree were passed on 10-2-1993 which were impugned by way of appeal in the Court of District Judge, Menshera. This appeal of Najja and others was heard by learned Additional District Judge and, upon acceptance of the appeal, the case was remanded to the learned trial Court with the direction that the demarcation proceedings be held afresh according to the observations made by the learned High Court. This judgment and the decree were passed on 20-12-1993 which have now been impugned before this Court by Muhammad Qasim petitioner/plaintiff.
3. After hearing the learned counsel for the rival parties and scrutinizing the relevant record of the trial Court it has come out that the case of the plaintiff/petitioner, as made out in the plaint, is that he was owner-inpossession of the suit property and that he was forcibly dispossessed by the respondents-defendants without necessary process of law. The plaint further shows that the suit was brought on the 4th day of the aforesaid dispossession and the prayer made therein was for restoration of possession and also permanent injunction restraining the respondents/ defendants from repeating the intrusion and the evidence was adduced accordingly. Needless to stress that it was a suit under section 9 of the Specific Relief Act. The learned trial Court, while deciding issue No,9 has, without any ambiguity held as under:- "I am of the opinion that remedy under section 9 of Specific Relief Act(I of 1877) is available to the plaintiff and his possession is restored over the suit property. The issue is decided in positive."
And the decree was also passed in the aforesaid terms.
4. A pertinent legal position was agitated before this Court with regard to the maintainability of appeal before the Court of District Judge as against the judgment passed under section 9 of the Specific Relief Act. It would be advantageous to reproduce section 9 of the Specific Relief Act which I do as under:- "S.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 shall be brought against the Federal 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."
5. From the concluding part of section 9 of the Specific Relief Act it follows that there is no statutory provision for appeal from an order or decree passed in a suit instituted under this section of the Act nor can even review of such order or decree be allowed. The purpose behind all this apparently is that immediate remedy is available against dispossession from immovable property in a manner different from that according to law. In such cases, therefore, parties are not required even to establish their title over the property in dispute, and the complainant party can succeed merely by establishing its previous possession and its unlawful dispossession by the rival party. I mean that this provision of law is indisputably aimed at discouraging usurpers and thereby preventing dispossession repugnant to law.
6. It would not be out of place to say that the legislature has also taken caution in making the law so that nobody is debarred from asserting his/her title over a property involved in a case under section 9 of the Specific Relief Act. Thus, the party feeling to have been adversely affected in a suit under section 9 of the said Act has an alternative remedy by bringing regular suit for establishing its title and eventually recovering possession. It is clear, therefore, that any order passed in appeal against an express provision of law, as in the last part of section 9 of the Specific Relief Act, must be held without jurisdiction and thus not binding.
7. In view of the aforesaid clear understanding of section 9, I am inclined to hold that in presence of the above express bar, the provisions of Civil Procedure Code with regard to right of appeal could not have been pressed into service as, admittedly, the judgment and the decree were passed by the learned trial Court under section 9 of the Specific Relief Act.
8. The result, therefore, is that the Appellate order as to remand of the case passed by the learned Additional District. Judge in the present case, being without jurisdiction and void ab initio is hereby set aside and the judgment and decree passed by the learned trial Court are restored. Having regard to the peculiar circumstances of the case, the parties are left to bear their own costs.