ORDER S.D. Agarwala, J.
1. These are two civil revisions filed under Section 115 of the Code of Civil Procedure. The property in dispute initially belonged to one Ramlali Devi. She died on 21st March, 1979. In May, 1979 Sri Dharam Sukh Tewari filed an application under Section 192 of the Indian Succession Act before the District Judge, Allahabad for issue of a direction that the possession of the properties belonging to Ramlali Devi be delivered to Dharam Sukh Tewari. This application was filed against Sri Ramapati Tewari and Sri Girja Prasad Tewari. Sri Ramapati Tewari and Sri Girja Prasad Tewari are the sons of Paramsukh Tewari who was the real brother of the husband of Ram Lali Devi. Dharamsukh Tewari is the real brother of Tribhuwan Nath, the husband of Ramlali Devi. In essence the dispute is Beteen the uncle Dharamsukh Tewari and his nephews Girja Prasad Tewari and Ramapati Tewari in respect of the property of late Smt. Ramlali Devi. This application under Section 192 of the Succession Act was allowed by the District Judge by judgment dated 22nd May, 1982. Sri Ramapati Tewari filed Civil Revision No. 368 of 1982 challenging the said judgment. Sri Girja Prasad Tewari filed Civil Revision No. 400 of 1982 against the same judgment. Since both these revisions involved common question of fact and law and, as such, they are being decided by a common judgment.
2. I have heard the learned counsel for the revisionists in both the revisions and the learned counsel for the opposite party Dharam Sukh Tewari.
3. In the application, which was moved Under Section 192 of the Indian Succession Act, it has been categorically admitted by the opposite party that Ramapati Tewari and Girja Prasad Tewari had been residing in the property in dispute much prior to the death of Smt. Ramlali Devi, when admittedly, the revisionists were in possession of the property for quite a long time, a heavy duty was cast upon the opposite party, who has moved the application under Section 192 of the Succession Act, to establish before the Court as to under what circumstance a summary remedy was being availed of in the case in question. In normal circumstances, if a person is in possession of the property, he cannot be evicted by means of adopting a summary remedy, as rights flow by virtue of long possession. It is, consequently, incumbent upon the applicant under Section 192 of the Succession Act to establish categorically and by positive evidence that he is availing of the summary remedy for special reasons alleged by him.
4. Section 193 of the Indian Succession Act is quoted below : --
"193. The District Judge, to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is a sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies, is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide."
5. Under the above Section 193, it is clear that the District Judge, has to make an enquiry. Particularly on the question as to whether the applicant is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit and that the application is made bona fide. The finding in regard to the material prejudice as well as bona fides are conditions precedent for the maintenance of an application under Section 192 of the Indian Succession Act.
6. On a reading of Part VII of the Succession Act, which includes Section 192, also, it is apparent that summary remedy was provided by the Legislature only in special cases where in case a person is left to the ordinary remedy of a suit, he would be materially prejudiced. This summary remedy was not contemplated I to be availed of in cases where a person is in possession and there is a dispute of title in j regard to the property. In the normal course, the ordinary remedy of a suit provided by law for evicting a person in possession cannot be bye-passed. This can at times, result in serious consequences. If a person is evicted by means of a summary procedure without there being any ground for invoking the summary procedure, it would be in violation of the intention of the Legislature in giving summary powers to the District Judge.
7. In the instant case, I have gone through the judgment of the District Judge. The District Judge has not recorded any finding as to whether any material prejudice will be caused to the applicant if he invokes the ordinary remedy of a suit and as to whether the application is bona fide. As stated above, both these conditions are precedent to the exercise of power and in the absence of these findings, the judgment of the District Judge cannot be sustained and is liable to be set aside.
8. Learned counsel for the revisionists has also contended that the findings recorded by the District Judge, that the wills in their favour do not establish the title, is vitiated in law. It is not necessary for me to go into the validity of the findings recorded by the Court below. Prima facie, I find that if the will dated 11th March, 1979, is not prima facie valid then the revisionists can rely upon the will dated 20th Feb. 1979. The will dated 20th Feb., 1979, has not been accepted by the Court below merely because there is a subsequent will dated list March, 1979. The subsequent will dated 11th March, 1979, having not been accepted as prima facie having been proved, the Court below should have gone into the validity of the earlier will dated 20th Feb., 1979.
9. In any case, since I am remanding the case to the Court below, I think it necessary in the interest of justice to set aside the findings recorded in regard to the prima facie title of the parties. The Court below shall re-assess the evidence and again determine the prima facie title of the parties.
10. In the result, both the revisions are allowed. The judgment of the first Additional District Judge, Allahabad, dated 22nd May, 1982, is set aside. The case is remanded to the Court below with a direction that the case shall be restored to their original numbers and decided in accordance with law after affording an opportunity to the parties to lead fresh evidence, if so required. The parties are directed to bear their own costs in both the revisions.