P L D 1973 Lahore 125 (PLP)

(c) Specific Relief Act (I of 1877), S. 9‑Contention that decree under S. 9 could not allow pulling down of structures raised on disputed land and such having been done decree was void‑‑Not allowed to be raised on revision when decree also challenged previously in revision before High Court and not attacked on such ground. Sona Mian v. Prokash Chandra A I R 1940 Cal. 464 ref. Ch. Abdul Razzaq for Petitioner. Mian Inayatullah for Respondents. Dates of hearing: 15th and 16th February 1972. A decree under section 9 of the Specific Relief Act was passed against the plaintiff‑petitioner in favour of the defendant -respondent on 29th January 1968. The petitioner's Revision Petition No. 73 of 1968 was dismissed by the High Court on 7th February 1968 on the ground that the trial Court had jurisdiction to try the suit and there was no suggestion that there had been any illegality or irregularity in the exercise of jurisdiction. The petitioner filed a title suit for declaration that he was in possession of the land in dispute with consequential relief of permanent injunction restraining the respondent from disturbing the petitioner's possession. Along with the suit, he also filed an application for temporary injunction restraining the respondent from disturbing his possession through execution of decree or otherwise. This application was dismissed by the learned trial Court by order dated 8th February 1968. The petitioner's appeal was also likewise dismissed by the Additional District Judge, Lahore on 3rd of May 1968 and this order is challenged by the present revision petition. A decree under section 9 of the Specific Relief Act can be passed when it is proved that the plaintiff was dispossessed from the property in dispute by the defendant otherwise than in due course of law, within six months of the institution of the suit. In such case the Court has no jurisdiction to go into the question of title of the parties and can only determine whether the defendant trespassed in the property in dispute within six months of the date of filing of the suit and decree for restoration of possession. This order and decree cannot be assailed by any appeal but can be challenged by a suit for possession based on title. This revision petition is, therefore, liable to be dismissed on the ground that by issuing a temporary injunction the Court will be frustrating a decree passed by a competent Court in exercise of jurisdiction vested in it by law and will in effect be protecting a trespasser. In Faiz Muhammad v. Muhammad Buta (P L D 1968 B J 7), in a case where order of restoration of possession was passed under section 145, C. P. C. injunction was refused for the reason that it will amount to affording protection to a trespasser. The balance of convenience cannot be said to be in favour of the issuance of temporary injunction in such case. Moreover, in view of a decree of a competent Court it cannot be said that the petitioner has a prima facie case because prima facie he is a trespasser. The learned counsel for the petitioner relied upon Mari v. Santaya (A I R 1922 Bom. 216) and a case of Indian Jurisdiction, A I It 1955 Tripura 13, for the proposition that a suit for permanent injunction can be filed on the basis of title in a case where a decree under section 9 of the Specific Relief Act has already been passed. These cases are clearly distinguishable as they relate only to the frame of a suit and not to the question of issuance of a temporary Injunction. Section 9 provides that the decree against trespass can be challenged by a title suit for possession. The Legislature did not confine itself to providing for filing of a title suit but further provided that such title suit would be for possession. It is, therefore, amply clear that while enacting this provision the Legislature had in contemplation that a decree under section 9 will not be frustrated in any manner and the trespasser shall be dispossessed. If, however, the decree is for some reason or other not executed and possession is not restored to the decree‑holder it may be open under the general law to a judgment‑debtor to file a suit for declaration of his title and in view of the impending decree to claim consequential relief of permanent Injunction also. But if during the pendency of the suit the decree is executed the plaintiff shall have to apply for amendment of his plaint so as to be able to claim possession and to bring his case in line with the provisions of section 9 of the above Act. The learned counsel for the petitioner further contended on the basis of Chhadek Karikar v. Sayad Ali Kaviraj (A I R 1925 Cal. 1046) that the decision of the earlier suit is not res judicata in the present suit. 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 B 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. The last contention raised by the learned counsel for the petitioner was that the decree was void in so far as it allowed the structures of the petitioner to be pulled down. Reliance was placed for this proposition on Sona Mian v. Prokash Chandra (A I R 1940 Cal. 464). This question is no longer open to the petitioner who has gone up in Revision against that decree to the High Court. Tae decree should have been attacked on this ground before the High Court in that revision. The revision petition fails and is dismissed with costs. S. A. H. Petition dismissed.