' Respondent's suit for possession qua the suit property, Was allowed by the learned Civil Judge, vide judgment and decree, dated 25-9-1995. An appeal filed by the petitioner was dismissed on 15- 7-1997.
2. The brief facts of the case are, that the respondent filed a suit for the possession of the property in question claiming that he is the owner thereof and has been illegally dispossessed by the respondent.
' It may be pertinent to state here that according to the averments of the plaint, the case of the respondent is, that he had earlier filed a 'suit for permanent injunction against the petitioners, for restraining them from closing the door and a drain of the suit property, in which the status quo order was passed in his favour. It is stated in paragraph No,3 that the petitioners about 12/13 days prior to the instant suit, but during the operation of interim order mentioned above, with the help of the police, has taken over the possession.
3. The petitioners contested the snit, denying the title of the respondent to the property and stating that he has no cause of action to seek the relief of possession. Issues were framed, important being whether the plaintiff is the owner of the suit property and as such is entitled to the relief claimed for? Evidence was led by the parties and the learned Civil Judge, vide judgment dated 25-9-1995, concluded that the spending has failed to prove his title. However, treating the suit under section 9 of the Specific Relief Act, allowed the same. In this behalf, following passage of the judgment is relevant:-- "The entry contained in Exh.P.2, do not by themselves create any right of ownership in property which can be relied upon to prove title of plaintiff. The perusal of plaint shows that plaintiff has instituted a suit for possession on the basis of proprietary tights but at the same time, he has stated in para. No,5 of. The plaint that defendants have forcibly occupied the disputed property illegally and forcibly. In my opinion the case does not fall under section 8 of the Specific Relief Act but it is to be treated under section 9 of the Specific Relief Act, thus, treating the case to be under section 9, the relief of possession was given to the respondent."
' Against the above, the petitioner preferred an appeal and the learned appellate Court held as follows:- "As a result of my above discussion, hold although respondent/plaintiff ailed to prove his ownership regarding the suit property before the learned trial Court; the learned trial Court correctly granted relief to respondent/plaintiff Sarwar Khan under section 9 of Specific Relief Act."-
4. Arguments have been heard. Learned counsel for the petitioner has contended that the instant suit was filed by the respondent on the basis of his title, thus, the suit fell within the purview of section 8 of the Specific Relief Act, and as held by both the Courts below, he failed to prove his title.
In this situation, the Courts had no jurisdiction to convert the suit under the provision of section 9, of the Act, ibid, which altogether had different scope. No issues were framed by the trial Court on the question of respondent being in possession of the suit property and his forcibly dispossessed therefrom by the petitioner, which was a condition sine qua non, for the competency of the suit under section 9. It is also argued that both the Courts below have grossly misread the evidence on record, particularly Khasra Girdawari Exh.P.2, which was placed on the record by respondent and admittedly does not show his possession at the relevant time, rather it contemplates that the petitioners were in possession of the suit property prior to the institution of this case.
5. Learned counsel for the respondent has rebutted the above and by placing reliance on AIR 1932 Mad. 32, states that where both the parties have failed to establish, the title to the property, but the plaintiff showing his possession, is entitled to the decree under the provisions of section 9.
6. According to the settled law, in cases pertaining to the possession of immovable property, reference to any particular section can hardly be a conclusive factor to discover its true nature, but if by reading the whole plaint, it is found that the case of the plaintiff is based upon his previous possession and subsequent dispossession by defendants, suit was competent under section 9, but if it was found that the plaintiff is claiming possession on the basis of his title to the property and further alleged dispossession by the defendant, such suit would fall under section 8. The scope of inquiry in both these cases is of different nature and the remedy of appeal further available in a suit under section 9 is also restricted. Reliance in this behalf can be placed on 1991 CLC Note 274 at p.212.
7. From the reading of the plaint, in the instant case, it is absolutely clear that plaintiff/respondent was seeking the relief of possession on the basis of his title to the property, which according to both the Courts, he has failed to establish. Furthermore, plaintiff has also not been able to prove his previous possession through any documentary evidence such as Khasra Girdawari to establish that he prior to the institution of the suit was in possession and has been illegally and forcibly dispossession therefrom. The statement of P.W.2, which has been relied upon by the Courts below is absolutely insufficient to prove the earlier possession of the plaintiff, and his subsequent dispossession by respondent; no date, time of such incident has been given by the said witness.
According to the Khasra Girdawari Ex.P.2, document placed on the record by the plaintiff himself, the possession of the defendant/petitioner is recorded from Kharif 1976 to Rabih 1976. Respondent has not been able to prove as to how after Rabih 1976 he acquired the possession of the property.
6. The argument of learned counsel for the respondent that as both the parties have failed to prove the title therefore, the plaintiff was competently granted relief of possession, suffice it to say that in the instant case, plaintiff has not even proved his possession over the suit property, therefore, the judgment reported as AIR 1932 Mad. 32, does not give any support to his case. It may be also pertinent to state here that according to Issue No,5 respondent could only be granted the relief of possession, if he was able to prove the ownership of the suit land, therefore, to grant relief to the respondent once he has failed to prove his title, has resulted in grave miscarriage of justice and has caused prejudice to the petitioner, particularly when no issue commensuration to the conditions of section 9 of the Specific Relief Act, was framed by the trial Court.
' The upshot of the above discussion is that the Courts below have not only misread the evidence on the record, but have also misconceived the case of the respondent and has allowed him the relief by misapplying the law. These judgments and decrees, thus cannot be sustained, are set aside, resultantly the suit filed by the respondent is hereby dismissed, with no order as to costs.