T. Amirthalingam vs Dr. Sir A. Lakshmanaswami Mudaliar

Ramaswami, J.—This Civil Revision Petition is sought to be filed against the decree and judgment of the learned District Munsif of Periyakulam in O. S. No. 204 of 1957 (O. S. No. 5 of 1956, D. M. C, Kodaikanal). The facts are: The plaintiff Sri T. Amirthalingam purchased his bungalow "Lynwood" from the owners Miss. Grimes who reserved a portion for her use. She demarcated the sold property by means of stones and wire-fencing. She later sold the portion so reserved to Dr. Sir A. Lakshmanaswami Mudaliar, the first defendant, who has put up a building by name "Chistlewood" The second defendant is the wife of the first defendant. The third defendant is Lady Ramaswami Mudaliar. The case for the plaintiff is that he put up a stone wall in the line of the worn-out wire-fencing put up by the common owner Miss Grimes. He is stated to have also planted trees along the line of the original fence. In June, 1956 the defendants are stated to have demolished a portion of the stone wall and put up a new fence to a certain extent encroaching upon the plaintiff''s property. The plaintiff filed a sketch along with his plaint illustrating his claim. The defendants contended that shortly after the purchase from Miss. Grimes they put up a wire-fencing to demarcate their western boundary. It became worn out in due course. There was no fence put up by the owner as alleged by the plaintiff. The plaintiff put up a stone wall without the knowledge of the first defendant. Due to his preoccupations the first defendant had no time to re-erect the wire fence for want of technical personnel. In June, 1956 Lady Lakshmanaswami Mudaliar demarcated the boundary line with the help of the revenue and survey officials in the presence of the plaintiff''s men and re-erected the fence on the portion now objected in the place of the original worn-out fence.

The learned District Munsif on the pleadings framed the following issues:

Whether the suit is properly valued and whether proper Court-fee paid?

Whether the suit is sustainable under S. 9 of the Specific Relief Act for the reliefs prayed for in the plaint?

Was the plaintiff in possession of the portion C-2 C-7 and E before the suit and whether he has dispossessed by defendants as alleged by plaintiff?

What is the correct position of the boundary line, between the two properties "Lynwood" and "Chistlewood"?

What relief is the plaintiff entitled to?"

It was agreed that the suit be treated as one bases on title and the deficit court-fee was paid by the plaintiff and since the suit was one for recovery of possession and the plaintiff claimed title not only on the sale deed Ex. A-1 but also by prescription and the first defendant claimed title in himself and also claimed adverse possession for more than the statutory period, the parties agreed before the learned District Munsif that the following questions (1) whether the plaintiff has title to the suit site under the sale deed or by prescription, (2) whether the plaintiff is in possession within the statutory period, and (3) whether the first defendant has prescriptive title by adverse possession should be considered under Issues 2 and 3 without specifically recasting the issues. The learned District Munsif came to the conclusion on the turn the suit had taken by the invitation of the parties issue 2 framed in the suit did not arise for consideration.

On an elaborate examination of the evidence, the learned District Munsif came to the conclusion that the plaintiff has not established his title to the suit site by the sale deed or by prescription and secondly that the plaintiff has not shown possession within the statutory period and thirdly, that the first defendant has not established title by prescription. The learned District Munsif found that the plaintiff has not proved the putting up of the wire fence by the common owner, or that the stone wall was put up in the place of the original wire fence and that in fact both parties had not demarcating fence prior to 1950 and that along the boundary there was spontaneous growth of plants and the parties did not worry about the exact boundary line. The learned District Munsif also found that both parties were not willing for actually measuring the extent of each property with reference to their title deeds since both parties felt that the extent of each property would be in excess of the extents purchased under their respective sale deeds. The learned District Munsif finally found that the intervening no-man''s space between the two properties was not in any party''s exclusive enjoyment so as to confer prescriptive title on that party and that even if the demarcation of the plaintiff or the defendants is accepted there will be no appreciable change in the extent of the plaintiff''s land. The learned District Munsif therefore dismissed the plaintiff''s suit.

On the foot of this decree and judgment the plaintiff has filed this civil revision petition. Thereupon the Registrar returned it asking that it should be made clear how a civil revision petition is competent. The learned Advocate represented it with the representation that it was a suit under S. 9 of the Specific Relief Act and that as that section itself prescribes no appeal, the remedy of the plaintiff is only a civil revision petition.

If this is a suit for possession based on title under the sale deed Ex. A-1 and/or possessory title, a civil revision petition would not lie against the dismissal of the suit. In Gokam Chinna Nagaiah v. Nagaram Baliga AIR 1956 Hyd. 170 it was held as follows : A distinction has to be drawn between a suit based upon possessor title and a suit under S. 9 of the Specific Relief Act. In the former case the plaintiff would be entitled to a decree only where plaintiff''s possession was sufficient proof of his title while in the latter case the Court has merely to see whether the plaintiff was in possession six months prior to the date of the suit. Where a plaintiff sues for possession on the basis of title and fails to establish title he cannot be granted a decree for possession under S. 9, Specific Relief Act. It would not be in the interests of justice to grant such a decree to the plaintiff as the Court having gone into the question of title and given a finding if a simple decree for possession were given, the defendants would necessarily have to go and establish his title over again. The parties in this case having invited the learned District Munsif to treat the suit as one for possession based on title, it is not now open to the plaintiff to turn round and treat is as a suit under S. 9 of the Specific Relief Act and deliberately prefer a Civil Revision Petition against the dismissal of his suit. Therefore, on this short ground this Civil Revision Petition is incompetent and it has got to be dismissed.

But even assuming that this was a suit filed, tried and disposed of in essence and substance under S. 9 of the Specific Relief Act, there are no grounds for admitting this Civil Revision Petition. The law relating to revision is now well settled. As a party aggrieved by a decree in a suit under S. 9 of the Specific Relief Act can bring a title suit, the Courts would decline to exercise the powers of revision under S. 115, Civil Procedure Code, Thus, there can be no doubt that as a matter of law revision would be under S. 115, Civil Procedure Code, from any decree or order that may be passed under S. 9 of the Specific Relief Act by any subordinate Court, the High Court will as a matter of practice refuse to exercise its discretionary power of revision excepting in cases of very exceptional nature or where very grave injustice is being done, or where there has been a grave abuse of jurisdiction or material illegality or irregularity. The discretion of this Court will be decided in the circumstances of each case as to whether it is expected to interfere or not. In short, applications for revision though not legally barred are not lightly entertained; Shyama Churn Ghosh Vs. Mahomed Ali and Others, ; Rajkrishna, 12 C. L. J. 615; Muluk Patooni Vs. Bharat Chandra Das and Others Bindubashini Chaudhurani and Another Vs. Srimati Jahnavi Chaudhurani, Rudrappa, 29 Bom. 213; Abdul Bari, AIR 1953 Ass 158; AIR 1949 126 (Nagpur) ; Bhadridas, AIR 1934 All. 541 AIR 1942 179 (Oudh) Manikkath Chinnu Amma''s Daughter Ammalu Kutti Amma Vs. Ramunni Menon alias R.M. Palat and Others, Babu Ram, 1946 A.L.J. 30; Suraj Bali, AIR 1932 Oudh 39; Mt. Rajwanta Kuer Vs. Mahabir Rai, .

These principles will be found set out at page 754 of Polloak and Mulla''s Indian Contract and Specific Relief Acts, Eighth Edition page 754; Harnam Singh''s " The Law of Specific Relief in India", Third Edition (1958) at page 98; Iyer & Anand''s "The law of Specific Relief" 4th Edition (1955) at page 67 and the M. L. J''s. commentaries on the Specific Relief Act, Ninth Edition, Volume V (Civil Court Manual, Central Acts) page 6587.

To sum up, in the language of the decision in Abdul Bari v. Asrab Ali AIR 1953 Ass. 158 An order under S. 9, Specific Relief Act, is not appealable and is also not open to review. These remedies are not allowed to an aggrieved party under S. 9 of the Act. The aggrieved party can institute a suit on the basis of title. Interference in revision, therefore, has been generally declined even though S. 9 does not exclude the remedy by way of revision altogether. Whether interference in a particular case is justified would depend on the circumstances of that case. The rights of the aggrieved party may be so clear that it may not be desirable to force him to institute another suit. The case may have been disposed of on an obvious misapprehension as to the legal position. There may be some defect of jurisdiction. But where no exceptional circumstances are brought out and the only contention raised is that the finding on a question of fact is not based on adequate evidence or is erroneous, interference would not be justified. It would be going against the spirit of S. 9 and in effect would be to convert a petition of revision into an appeal which the law expressly disallows.

Bearing these principles in mind, if we examine the facts of this case, we find that on adequate and relevant evidence the learned District Munsif came to the conclusion, which on the materials is the only possible conclusion in this case, that the plaintiff had neither proved possession nor dispossession of the disputed triangular plot entitling him to obtain relief under S. 9 of the Specific Relief Act. This Civil Revision Petition is dismissed.