KHURSHI Vs. AHAD PAREY

JUDGEMENT

(1.) THIS is a civil revision petition under 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.

(2.) 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.

(3.) 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 focused its attention on the question of possession and enjoyment of the suit property by the plaintiffs, and in absence of any better or superior title residing in defendants and entitling them to the property or its possession, given judgment for plaintiffs, the appellate court got itself embroiled in comparatively unimportant aspects of the case and exceed 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.