Full Judgment
Bennet, Ag. C.J.
1. This is a civil revision by two plaintiffs, Badrul Zaman and Mohammad Ayub, against a decree of the Munsif of Mohammadabad Gohna, District Azamgarh, dismissing their suit for possession under Section 9, Specific Belief Act. The suit was brought against Firm Haji Faizullah Ebadullah. The facts of the case are contained in the judgment of the Letters Patent Appeal No. 80 of 1935 which has been delivered by this Bench to-day and the judgment of the learned single Judge of this Court which dismissed the suit of this firm has been upheld. That suit was brought in 1931 by the firm claiming a plot of land 57 cubits long and 15 cubits wide in the town of Kopaganj on the ground that the firm had a right over this piece of ground for the purpose of carts going to the firm and standing on this piece of ground. Objection was taken to the action of Badrul Zaman and Mohammad Ayub defendants in that suit on the ground that they had obtained permission from the zamindar Bani Dandei Kuar and had begun constructing foundations for a new building measuring 44 ft. by 28 ft. and stored a large number of bricks and so on. The plaint was eventually taken as a claim of easement and the suit was decreed by the learned Munsif on 20th February 1932. An appeal was brought by the defendants and that appeal was dismissed. A second appeal was brought by the defendants and a learned single Judge of this Court allowed that second appeal on 13th September 1935. Subsequent to that date, the defendants in that suit, Badrul Zaman and Mohammad Ayub, brought this suit as plaintiffs being Suit No. 346 of 1936, claiming possession of the area in question on the ground that they had been in possession of it on obtaining it from the zamindar and that their possession had been interfered with and they had been dispossessed by the firm and that as they had eventually succeeded in the High Court, they should now be restored to possession. On this claim the Munsif noted 'the Letters Patent Appeal is yet undeoided.' Apparently he considered that as the Letters Patent Appeal was pending, therefore he was not bound to give effect to the decree of the learned single Judge which was in favour of Badrul Zaman and Mohammad Ayub. The defence of the firm was that the land was always in the defendants' possession and that the plaintiffs by sinking foundations did not get possession. The Court below framed the following issue:
Had the plaintiffs been in possession of the suit land and were they dispossessed without their consent within six months of the suit?
2. We may observe, in the first place, that the clause 'within six months of the suit' is evidently from Section 9, Specific Belief Act, which contained those words prior to the removal of those words by the Amending Act (Act 12 of 1891). The Munsif therefore made a mistake in considering that that period was part of the Section in question. Now learned Counsel for the firm has argued before us that as the Munsif has come to a decision on fact that the firm had all along been in possession and dismissed the suit on this ground, therefore this was a finding of fact and this Court should not interfere in revision. Further it is argued as a proposition of law that the High Court is not entitled under Section 115, Civil P.C., to interfere in revision with a decision of a subordinate Court under Section 9, Specific Belief Act. His ground for this proposition is that the Section provides that a suit may be brought for title by any one in spite of an order against them under the Section as the Section deals only with possession. The Section further says:
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 he allowed.
3. It is to be noted that the Section does not provide that there shall not be any revision. If it had been intended that there should be no revision, doubtless the Section would have made a provision to this effect. Now Section 115, Civil P.C., lays down three grounds on which a revision will lie in a suit which has been decided by a subordinate Court and in which no appeal lies. As noted, Section 9, Specific Belief Act, provides that no appeal lies. Now learned Counsel has shown us some rulings : Badri Das v. Mt. Dhanni : AIR1934 All541 and Ram Kishen Das v. Jai Kishen Das (1911) 33 All. 647. In each of these cases the Court recognized that a revision would lie from a decree under Section 9, Specific Relief Act, but the Court stated that in the particular case before it, it did not consider it necessary that it should exercise its power of revision. These rulings are authorities for the proposition that a revision does lie. We now come to consider the merits of this case. In the first place, the Munsif was wrong in ignoring the judgment of the learned single Judge of this Court which was between the parties and in regard to the same piece of ground. That decision was prior to the suit before the Munsif and the decision was that the firm had no right of easement in this piece of ground. Now where the claim was made of right of easement by the firm, it implies an admission that the firm did not possess the piece of ground. From the definition of easement in the Easements Act it seems that an easement is the exercise of certain, rights in a ground which is in the proprietary possession of another. The only rights which had been claimed in the land in question were rights of easement by the-firm and there was a finding by the learned Judge of this Court that they did not have those rights and that the land was not in their possession. That was a finding which would be binding under Section 11, Civil P.C., on the Munsif and he ignored it altogether. Where therefore the Munsif made a finding that the defendant firm had ever been in actual possession, that finding was not only contrary to the pleadings of the defendant firm but contrary also to the finding of the learned single Judge of this Court. We consider therefore that in arriving at such finding there was a distinct irregularity of the Munsif in his procedure and accordingly we consider that the finding of fact arrived at under such circumstance is in no way binding on us.
4. The further finding of the Munsif was that by digging the foundations there was no possession of the plaintiffs. The plain, tiffs admittedly had a permission from the zamindar for which they had paid nazarana and in the plaint of the Suit No. 378 of 1931, para. 5, the defendant firm had specifically admitted the existence of that per. mission. Learned Counsel areued that there was a registered lease given by the zamin. dar to the defendants at a later date on 27th November 1935. That registered lease is several years after the dispossession of the plaintiffs in 1931 and cannot be any justification for the action of the defendant firm on that account. For these reasons we consider that the plaintiffs have established their title to a decree under Section 9, Specific Relief Act, and we allow this revision with costs throughout and grant the plaintiffs a decree accordingly.