BAPULAL Vs. BANSILAL

JUDGEMENT

(1.) THE only question involved in this revision is whether the civil suit is competent. Respondent Bansilal instituted a suit under Section 326, Qanoon Mal on June 9, 1951 in the Court of the Tehsildar, Susneer, on the allegation that he was in possession of 36 survey numbers in village Paili as his khud -kasht land; that on June 1, 1951 the Defendants Bapulal, Kanhaiyalal and Ram Prasad unlawfully took possession of the lands and that he was, therefore, entitled to restoration of possession. The defence was that the Plaintiff's father had led them into possession and that their possession was not unlawful. That suit was dismissed by the Tehsildar on June 9, 1952. Stage by stage the Plaintiff went up to the Board of Revenue but remained unsuccessful everywhere.

(2.) THEREAFTER , the Plaintiff instituted the present suit against the very same Defendants. Bapulal Defendant No. 1 is his step -brother and Kanhaiyalal and Ram Prasad Defendants are sons of Bapulal. The Defendants raised a preliminary objection as to the maintainability of the present suit. The trial Judge has held that the suit is competent. It is against this preliminary finding that the present revision has been filed.

(3.) SHRI Patankar, Learned Counsel for the Respondent, urges that his present suit cannot be dismissed on the ground that previously a suit was instituted under Section 326 of the Qanoon Mal. The argument of the Learned Counsel is that there is no provision in the Qanoon Mal for entertaining a suit for declaration of title. Section 326 of the Qanoon Mal contemplated a suit for restoration of possession on the basis of wrongful dispossession only and in other words, it corresponds to a suit under Section 9 of the Specific Relief Act. My attention is invited to the observation of the Board of Revenue in this very case namely "Madakhlat he mamle men istahqaq ke adhar par decree nahin dija sakti hai."