1. Muhammad Shafi, petitioner filed the instant revision petition in this Court on 29-6-1994 which came up for motion hearing on 2-10-1994 and pre-admission notice was issued to Abdul Hameed, respondent. The respondent entered appearance through his learned counsel, who was heard at length. With the concurrence of learned counsel for parties, I have taken up the case for final hearing as a Pacca case.
2. Briefly stated the facts of the case are that the petitioner had earlier filed a suit under section 9 of the Specific Relief Act for restoration of possession of residential plot measuring 3 Marlas being 3/877th share of land bearing Khata No,148/120, Khatauni Nos.501 to 505, situated in village Nurewali, Tehsil and District Rahimyar Khan. The said suit was dismissed by the trial Court vide judgment and decree dated 10-10-1992. His claim was that he had purchased the plot from Mst.
2. Fakhar-un-Nisa Begum, widow of Iqbal Hussain Shah for a sum of Rs,10,500 through an agreement to sell, dated 10-6-1991 and built his house thereon and that about three months'earlier his real brother Abdul Hameed had illegally occupied the house. Since no appeal was competent against the judgment/decree of the Court in a suit filed under section 9 of the Specific Relief Act, the petitioner filed a fresh suit for possession on 10-2-1993. The suit was resisted by the respondent and on the pleadings of the parties the trial Court framed the following issues: (1)Whether the plaintiff is the owner in possession of the disputed property on the basis of an Ikramama Bai dated 10-6-1991 and registered sale-deed dated 5-11-1992? OPP (2)Whether the respondent has taken the possession of the disputed property without any legal right? OPP.
3. (3)Whether this suit is hit by section 11 of C.P.C.? OPD.
4. (4)Whether this suit has not been properly valued for the purposes of court-fee? OPD (5)Whether the suit is liable to dismissal due to preliminary objection raised of the defendant in para. No,3 of the written statement? OPD (6)Whether the defendant is entitled to receive special costs from the plaintiff under section 35-A of C.P.C.? OPD (7)Relief.
5. Issues Nos.3 and 4 were treated as preliminary ones. The parties were allowed to produce oral as well as documentary evidence and after perusing the same the trial Court decided the said issues against the petitioner and dismissed the suit vide judgment and decree dated 25-4-1993. The petitioner filed an appeal which was dismissed by the learned Additional District Judge vide his judgment and decree dated 7-7-1994.
3. The petitioner's learned counsel urged that the Appellate Court was labouring under the misconception that the petitioner's suit was instituted under section 9 of the Specific Relief Act and for that reason erroneously held that the appeal filed by the petitioner was incompetent; that the appellate Court failed to notice that the petitioner's first suit was filed under section 9 of the Specific Relief Act and that second one was a declaratory suit filed under section 42 of Act and could not be dismissed on the application of provisions of section 11 of the C.P.C.. In this connection he places reliance on the judgment in the case of Abdul Aziz v. Mst. Doulat Bibi etc. (PLD 1973 Lahore 125). The respondents' learned counsel was unable to cite any judgment to rebut the contention raised by the petitioner's learned counsel.
6. 4.There is considerable force in the arguments raised by the petitioner's learned counsel. It is regrettable that the learned Additional District Judge did not carefully peruse the record and erroneously proceeded on the assumption that the appeal before him had arisen out of a suit filed under section 9 of the Specific Relief Act. As stated above that the petitioner's earlier suit had been filed under section 9 of the Specific Relief Act which was dismissed on 10-101992 and thereafter he filed a regular civil suit on 10-2-1993 which was dismissed by the trial Court on 25-4-1993. The appeal before the learned Additional District Judge was filed against the judgment and decree dated 25-4-1993 which was maintainable under section 9 of the C.P.C. read with section 42 of the Specific Relief Act. It ought to have been decided on merits in accordance with the law. The second suit filed by the petitioner was not hit by the principle of res judicata embodied in section 11 of the C.P.C. This view finds support from the judgment in the case of Abdul Aziz relied upon the petitioner's learned counsel. The relevant portion from the judgment reads as under: "A decision can be res judicata only to the extent that it actually or constructively determines a question in dispute. A judgment and decree under section 9 cannot be res judicata on the question of title but is certainly res judicata to the extent that it decides that the decree-holder was dispossessed by the judgment-debtor otherwise than in due course of law."
7. The object of section 9 is to provide a summary remedy for restoration of possession to a person who was illegally dispossessed from immovable property during the period of 6 months before the institution of the suit. The question of title cannot be raised or finally determined by the Civil Court in a suit filed under section 9 of the Specific Relief Act. In the case of Debendra Mohan Das v.
8. Muhammad Afazuddin etc. (PLD 1965 Dacca 269) it was held that the question of title could not be raised in a suit for recovery of possession under section 9 of the Act. In the case of Messrs A.R.
9. Muhammad Siddique v. The Saifee High School Board (1983 CLC 507) it was held that the plea of title could not be as a defence to a suit under section 9 of the Act though it afforded as conclusive defence in ordinary civil suits based on title. In view of the above legal position it is evident that the learned appellate Court had acted illegally and with material irregularity in dismissing the petitioner's appeal holding it to be incompetent.
10. 5.For the foregoing discussion, the revision petition is accepted, impugned judgment and decree dated 7-4-1994, passed by the learned Additional District Judge are set aside and the case remanded to the learned District Judge, Rahimyar Khan, who may hear the appeal himself or entrust the same to any other Additional District Judge at Rahimyar Khan for its decision on merits in accordance with the law. The appellate Court shall make effort to decide the appeal expeditiously preferably within a period of 6 months. The parties are left to bear their own costs.