1. This is a revision under Section 115 of the CPC against the order of the City Munsiff Srinagar dismissing the suit of the petitioner-plaintiff under Section 9 of the Specific Relief Act. The case of the plaintiff was that he was in exclusive possession of a plot of land on which was erected a shed. During his absence, the defendant-respondent pulled down a portion of the shed and took wrongful possession of a portion of the land. As he was thus wrongfully dispossessed, he laid the suit under Section 9 of the Specific Relief Act.
2. The material pleas set up in defence were (a) that the shed and the land in question were in the joint possession of the plaintiff and the defendant, (b) that no portion of the shed was ever pulled down by the defendant and (c) that the suit was barred by limitation.
3. The trial court found the issues relating to joint possession and demolition of the shed against the defendant, but it came to the conclusion that the suit was instituted beyond the statutory period of six months and, therefore, dismissed it. The aggrieved plaintiff has come up in revision.
4. The plaintiff-petitioner's learned counsel has strenuously urged that the conclusion of the trial court on the question of limitation has absolutely no relation to the evidence on the record. The trial court has stated that the plaintiff admitted that he was dispossessed more than six months before the institution of the suit. It further observed that the evidence on the record showed that possession of the property in dispute was taken by the defendant more than six months before the suit was laid.
5. These statements are vigorously challenged by the petitioner's learned counsel as wholly incorrect and contrary to the express and affirmative evidence on the record. He has taken me through the evidence of the plaintiff and his witness, Omkar Nath. The conclusion reached by the trial court on the point of limitation is plainly contrary to the evidence adduced on the side of the plaintiff. Nowhere has the trial court said that the evidence on the side of the plaintiff is not acceptable.
6. It has proceeded on the erroneous basis that the plaintiff himself admitted that the suit was instituted more than six months after the date of his dispossession. It proceeded to make another sweeping statement that the evidence on the record was to the same effect. These statements clearly show that the trial court has not taken care to read the evidence in the case. In other words, its decision was arrived at without any reference to the evidence in the case. The question then is whether this is a sufficient ground for interferring under Section 115 of the CPC? I am clearly of the view that it is.
7. If a court has come to a conclusion without going through the evidence bearing on the point on which the conclusion is reached and the conclusion is opposed to the evidence on the record, it has acted with material irregularity in the exercise of its jurisdiction. The order passed by it can, therefore, be properly revised under S. 115. If any authority is needed for this proposition, I may cite Mihirlal v. Panchkari Santra, AIR 1950 Cal 520 where a Division Bench of the Calcutta High Court observed as follows:
“In my judgment the omission to look into the record in the case is a gross irregularity in the exercise of jurisdiction and the learned Judge's decision based upon a faulty reading or rather a non-reading of the record that the auction purchaser was guilty of fraud cannot be allowed to stand”.
8. I may also refer to the decision of Wadia, J. in Haidaraii v. Ghulam Mohiuddin, AIR 1934 Bom 343 where more or less the same principle has been enunciated.
9. It is, therefore, clear that the decision of the trial court on the point of limitation has to be set aside.
10. This does not, however, mean that I should in this revision pass an order for restoration of possession to the plaintiff. There is no specific allegation in the plaint itself as to the actual date of the plaintiffs' dispossession; nor was an issue framed on the question of limitation. It, therefore, appears to me that the defendant-respondent was unable to focus adequate attention on the question of limitation and lead appropriate evidence in respect of it. In the circumstances, the proper course appears to me to remit the case to the trial court directing it to frame a specific issue on the point of limitation and give opportunity to both sides to adduce further evidence if any, in respect of it, and then come to a conclusion on the evidence on record and the probabilities of the case.
11. The learned counsel for the respondent has urged that the findings of the trial court on the questions of joint possession and demolition of part of the shed are erroneous. He has, therefore, invited me to set aside these findings and direct the trial court to arrive at fresh findings on the questions.
12. The petitioner's learned counsel has pressed upon me that the respondent is not entitled to make this request. According to him the respondent is concluded by the findings against him and cannot be heard to convass their correctness in these proceedings. It is argued that unlike an appeal, anything like cross-objections are not known to proceedings in revision. I am not satisfied this is a correct stand as a matter of law.
13. No doubt, R. 22 of O. 41 of the CPC under which a memorandum of objections can be preferred by a respondent in an appeal does not extend to revision petition. But the High Court has sufficient powers, when it is seized of a competent revision and when all the parties are before it, to entertain questions which may be raised by the respondent and deal with those questions as it thinks tit. When the petitioner is entitled to show that a portion of the judgment which is against him has to be revised, it will also be open to the respondent to make out that another part of the judgment which is against him should be set aside. And the court is competent to consider the case put forward by the respondent and that set up by the petitioner, and give a decision on both.
14. This position is pointed out in Pattammal… v. Krishnaswami Iyer…., AIR 1928 Mad 794 and I am in respectful agreement with it. It is, therefore, open to the respondent to urge that the findings recorded by the trial court against him on the issues relating to joint possession and demolition of the shed should be set aside and the trial Court directed to arrive at fresh findings in the light of the evidence on the record. But in order to succeed, the respondent is bound to show that the grounds on which he attacks the findings of the trial court fall within the purview of Section 115 of the CPC. This requirement applies to him as much as it applies to the petitioner.
15. We have now to examine whether the respondent has made out any ground for interference under S. 115. His learned counsel has argued at length on the basis of the evidence adduced in the case. He has not been able to show that the findings in question were reached without any regard to the relevant evidence on the record. His case is not that the trial court did not at all refer to the evidence on the record in coming to its conclusions or that it eschewed from consideration the material evidence adduced in the case. The gist of his grievance is that the trial court has not correctly appreciated the evidence adduced by the parties.
16. According to him, on the same evidence a conclusion favourable to him could well have been reached by the court. This line of argument overlooks the important aspect that a court of revision is not a court of fact in the sense of a court of first appeal is. It is not within the province of a court sitting in revision to try to substitute its own findings of fact for those arrived at by the trial court. The proper approach is surely not to consider what findings of fact if would have come to, if it were sitting as a trial court.
17. Any such approach would be contrary to and in excess of the powers conferred by S. 115. The trial court after considering the evidence in the case might reach its own findings of fact. The High Court will not interfere with such findings merely on the ground that another court could possibly have arrived at a different finding on the same evidence. The learned counsel for the respondent is, therefore, not entitled to invite this court sitting in revision to subvert a finding of fact which was arrived at by the trial court on the basis of the evidence on the record, on the ground that as a matter of mere appreciation of evidence it is perhaps possible to come to a different findings. J am, therefore, not satisfied that the findings recorded by the trial court against the respondent should be interfered with.
18. The result is that the order of the trial court is set aside and the trial court is directed to frame a fresh issue on the question of limitation and afford a fresh opportunity to both sides to adduce evidence in respect of it and come to a finding on the basis of such evidence and the probabilities of the case, and dispose of the suit on the basis of that finding. Costs will abide and follow the result.
IC/V.R.B
19. Suit remanded.