1992 PLP 2320 (CLC)

BASHARAT AHMAD SHAIKH, J.‑‑This is an appeal, by leave of the Court, from the judgment of the learned Single Judge of the High Court recorded on 8‑5‑1991 whereby second appeal filed by the present appellants was dismissed with costs. The relevant facts are that Muhammad Sharif, who is now represented by his widow Mst. Jhali and his two sons, Gulfraz and Muhammad Fiaz, as well as his five brothers, Khan Muhammad, Kala, Muhammad Akbar and Kaka, filed a suit for possession under section 9 of the Specific Relief Act against Lal Khan, the respondent before us, in the Court of Sub‑Judge, Sehnsa on 2nd of August, 1982. It was averred in the plaint that land measuring 11 Kanals 1 Marla under Survey No. 431/2 situate in village Pehyai was in possession of the plaintiff since long. It was claimed that the plaintiffs were co‑sharers with defendant Lai Khan. It was alleged that defendant Lai Khan forcibly dispossessed the plaintiff from land measuring 7 K anals out of Survey No. 431/2 mentioned above. These averments were controverted by Lal Khan in his written statement. The suit was dismissed on 30th of December, 1984. Appeals taken to the learned District Judge and subsequently to the High Court also failed. The High Court has found that the suit filed in the Court of Sub‑Judge Sehnsa was a suit under section 9 of the Specific Relief Act. It was held that since no appeal lies from any order or decree passed in a suit instituted under section 9 mentioned above, the appeal filed by the present appellants before the District Judge against the dismissal of the suit was not competent. It was observed that a revision petition was competent but the unsuccessful plaintiffs had not riled a revision petition in the High Court to challenge the dismissal of the suit. The High Court then proceeded to hold that the plaintiffs had failed to prove that the suit had been riled within six months of the alleged dispossession. The main point urged on behalf of the present appellants in the petition for leave to appeal was that the suit was not in fact merely under section 9 of the Specific Relief Act but was also based on title and Possession could have been given by the Court even after holding that the ‑suit had not been filed within the stipulated period of six months. Leave was granted in the case mainly to consider this contention. The learned counsel for the appellants, Ch. Muhammad Sharif Tariq, took us through the judgment of the learned Sub‑Judge in order to prove that the suit had been decided as a suit for possession based on title and not as a suit under section of the Specific Relief Act. We find that the manner in which the case has been dealt with by the learned Sub‑Judge does leave scope for such an argument. It was observed by the learned Sub‑Judge that the land in dispute was Shamlat land and it appeared from the documentary as well as oral evidence that the defendants were in possession of 7 Kanals of land from the year 1982 while before 1981 the whole land under the relevant survey number measuring

11. Kanals and 1 Maria was in possession of the plaintiffs. He further observed that the plaintiffs did not prove as to how much land they were entitled to retain in possession in accordance with their share in the Shamlat. It is clear that the learned Sub‑Judge was in total misconception about what he was required to decide in‑a suit under Section 9 of the Specific Relief Act. What he was required to do was to attend to the question whether the plaintiffs had been dispossessed from any land within six months prior to the filing of the suit and if the finding was in affirmative he was bound under law to put the plaintiffs back in possession notwithstanding any title that may be set up in such a suit. When the issues were framed in the case the learned Sub‑Judge clearly conformed to the requirements of a suit under section 9 mentioned above. Out of five issues framed by the Court none related to title. Issue No.1 was to the following effect: "Whether the suit land, is in possession of the plaintiff?" Issue N0.2 was "Whether the defendant forcibly dispossessed the plaintiffs from the suit land in May 1982 and thus the plaintiffs were entitled to recover the possession?" In light of these issues the parties led evidence. A perusal of the evidence led by the parties also clearly shows that the parties led evidence. only in relation, to the issues framed and they conformed to the requirements of section 9 of the Specific Relief Act. Now the question is whether Ch. Muhammad Sharif Tariq is right in submitting that the suit had been treated as a suit based on title and, therefore, an appeal was competent to the learned District Judge. We do not find any force in this contention. The plain reading shows that the suit was a suit under section 9 of the Specific. Relief Act. Issues had also been framed in accordance with the requirements 'of that suit and the parties had led the evidence accordingly. When the learned Sub‑Judge attended to the question of title his approach was clearly against law but the illegality committed by the learned Sub‑Judge while disposing of the suit would not change the nature of the suit. If wrong approach of the learned sub‑Judge can change the nature of the suit the party which led the evidence in light of the issues framed by the Court would be badly prejudiced and would suffer on account of the fact that they were never conscious at the time of leading of evidence that ultimately the suit would be treated as suit based on title. Therefore, we hold that the suit was a suit under section 9 of the Specific Relief Act and was not based on title. Consequently it should have been decided as such. In our view the unsuccessful party, namely the present appellants should have taken the matter to the higher forum to get rectification of the illegality committed by the learned Sub‑Judge. The proper forum in the present case was the High Court where a revision petition could be filed. The appellants filed an appeal with the District Judge. Since the appeal did not lie the appellants placed themselves in a position where no Court is able to help them, even if they have a good case on merits. It has pained us to see that not only the learned Sub‑Judge but also the learned District Judge treated the suit as one based on title and failed to apply his mind not only to the requirements of such suit but also to the issues framed in the case while finally deciding the appeal. However, that does not change the legal position. The remedies of appeal and revision have been provided by law for the precise purpose of getting wrong decisions vacated. We may also take into consideration the fact that the learned Judge in the High Court has very rightly observed that if a party fails in a suit under section 9 of the Specific Relief Act he still has an alternate remedy of a regular suit for possession on the basis of title. If we hold that the present case wag one based on possession then, that would amount to depriving the present appellants from the remedy which is available to them. Even otherwise the learned Judge in the High Court has found that the appellants failed to. prove that they had been dispossessed within six months. We have not been able to find any misreading or non‑reading of evidence on this point. We do observe that so far as the learned Sub‑Judge and the learned District Judge were concerned they did not apply their minds to this factual aspect and finding was recorded by them on this point. Normally in such a situation the case could have been remanded by the High Court but, as already noticed, the dismissal of the suit was not challenged by the present appellants by filing a revision petition in the High Court. Therefore, they were not entitled to any relief in the second appeal before the High Court. For the aforesaid reasons the appeal is dismissed with no order as to the costs. A.A./350/S.C.A.????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.