P L D 1964 (W (PLP)

Date of hearing: 27th March 1964. This is a reference under section 113 of the Civil Procedure Code by Mr. Faiz Ahmad Aslam, a Civil Judge of the Fourth Class, Mardan, requesting for the opinion of the High Court on the question whether he is bound to comply with an order of remand passed by the learned Additional District Judge, Mardan, in an appeal against the dismissal of a suit under section 9 of the Specific Relief Act.

2. The suit had been filed by Nawabzada Muhammad Uniar Khan of Hoti against Asif and others, seeking possession of land measuring 28 kanals and 19 marlas situate in village Khazans Dheri, Tehsil Mardan, alleging that dispossession had taken place four or five months prior to the institution of the suit. The suit was contested only by Asif, and several issues were framed, including one of limitation. The learned trial Judge came to the conclusion that dispossession had taken place more than six months before the institution of the suit, and on that finding alone he dismissed the suit, without going into the other Issues. The plaintiff went up in appeal which was accepted the learned Additional District Judge, Mr. Agha Khan Baba Khan, holding that the dispossession had taken place within six months of the institution of the suit. On this view of matter, the learned Additional District Judge remanded the to the trial Court for decision on merits.

3. Now, section 9 of the Specific Relief Act under which the suit had been brought is in the following terms:- "If any person is dispossessed without his consent of immov able 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 section shall be brought against the Secretary of State, the Central 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."

4. It will be seem that the last part of section 9 expressly prohibits an appeal from any order or decree passed in any suit instituted under this section. The power of review is also similarly taken away in respect of any such order or decree. The intention of the Legislature clearly seems to be to give finality to 4 orders and decrees passed in suits under this section. And the) reason is not far to seek. The section provides a quick remedy for the recovery of possession, where a person is dispossessed of immovable property, otherwise than in due course of law. The plaintiff is not required to establish his title to the property and he can succeed by merely showing previous possession and wrongful dispossession. In other words, the object of the section is clearly to discourage forcible dispossession. The proceedings under this section do not constitute a bar against either of the parties suing to establish his title to the property and to recover possession thereof. Thus the party adversely affected in a suit under section 9 of the Specific Relief Act has an alternative remedy by way of a regular suit for establishing title and recovering possession. It is clear, therefore, that any order passed in appeal, against the express provisions of law, as contained in the last part of section 9, must be held to be without jurisdiction and a nullity in the eye of law.

5. There are some authorities in which it has been held that a revision lies to the High Court under section 115 of the Civil Procedure Code in respect of an order or decree made in a suit under section 9 of the Specific Relief Act (See Suraj Bali Tewarti v. Kandhalya Bakhsh Singh (A I R 1932 Oudh 39); Badar ul Zaman v. Firm Haji Faizullah Abdullah (A I R 1938 All. 635); K. S. Abdullah Khan v. Faizullah Khan (P L D 1950 Pesh. 35) and Rusmat Ali v. Rammat Ali (P L D 1952 Dacca 89)), but all of them proceed on the clear understanding that section 9 prohibits an appeal or review. It is clear, therefore, that an appeal is not permitted under section 9 of the Specific Relief Act on any ground whatsoever.

6. The result, therefore, is that the appellate order of remand passed by the learned Additional District Judge in the present case, being without jurisdiction, is hereby set aside, and the- order of dismissal of the suit passed by the trial Court is restored. The reference is answered accordingly. K. B. A. Reference answered.