Mst. Khurshi and Another vs Ahad Parey and Others

K.V. Gopalakrishnan Nair, J.—This is a civil revision petition u/s 115 of the Civil P.C. The Petitioners are the Plaintiffs. The order

challenged in revision is one of remand made by the Addl. District Judge, Srinagar in an appeal preferred from the judgment and decree of the

Second Addl. Munsiff at Srinagar. The Petitioners first preferred an appeal against the order of remand, but being confronted with a preliminary

objection that the appeal was not competent, they obtained leave of the court to convert the appeal into a revision petition.

The suit was for a permanent injunction against the Defendants. The trial court decreed the suit. The appellate court remanded the suit on the

ground that certain issues relating to the status of the second Plaintiff and the legal obligations which the Defendants owed to the Plaintiffs under the

law ought to be gone into by the trial court.

The learned Counsel for the Plaintiffs has strenuously urged that the remand is not of any advantage to either side that it will only make for delay

in litigation and that it is based on an incorrect appreciation of the facts and the law applying to the case. It is pressed upon me that in a suit for

permanent injunction on the ground that the Plaintiffs have been in exclusive possession and enjoyment of the suit property the relief asked for

ought to be granted, if the court finds it as a fact that the Plaintiffs' case regarding possession and enjoyment is true.

The Defendants in such a suit cannot be allowed to defeat the Plaintiffs' suit, except perhaps when the Defendants are able to establish a superior

title in themselves which would exclude the right of the Plaintiffs to hold the suit property. This aspect of the case which according to the

Petitioners' learned Counsel is the most crucial aspect was not appreciated by the appellate court in making the order of remand complained of in

this revision petition. I think there is some substance in this plea....

The appellate court ought to have focussed its attention on the question of possession and enjoyment of the suit property by the Plaintiffs, and in

the absence of any better or superior title residing in the Defendants and entitling them to the property or its possession, given judgment for

Plaintiffs. But the appellate court got itself embroiled in comparatively unimportant aspects of the case and expressed somewhat unjustified

disapprobation of the way in which the trial court dealt with the case and made a sweeping remand of the entire case for fresh disposal.

What I stated in the forgoing paragraph is perhaps the best that can be said in favour of the Petitioners. But the learned Counsel for the

Respondents has harped upon the limitations imposed upon a court sitting in revision. He has argued that there is no lack of jurisdiction or any

illegality or material irregularity in the exercise of jurisdiction. This contention is well founded. If I were not sitting as a court of revision fettered by

the provisions of Section 115 of the Civil P.C., I should have been inclined to go into all the facts circumstances and the law bearing on the case

and perhaps come to a conclusion in favour of the Petitioners.

But as a court of revision I am unable to do this. For this reason I must however reluctantly dismiss this petition. But I should like to point out that

aspect of the case relating to possession and enjoyment of the suit property by the Plaintiffs and their predecessors-in-title and the presence or

absence of a better title in the Defendants must not be overlooked by the trial court or by the appellate court before whom this case may come up

again for disposal.

As already indicated this revision petition fails and is dismissed. In the circumstances of this case, I make no order as to costs.