ORDER :

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order passed in O.S.No.50 of 2013 dated 06.02.2019 on the file of the Court of District Munsif cum Judicial Magistrate, Nannilam.

Inveighing the order as one of without jurisdiction and not appealable, the present Civil Revision Petition has been preferred.

2. The defendants are the revision petitioners. The respondent/plaintiff filed a Suit for injunction restraining the defendants from interfering with his peaceful possession till he is lawfully evicted from his cultivating tenancy. The defendants contended that the plaintiff has surrendered possession and they are cultivating the lands on their own. The Trial Court framed three issues:

(1) Whether the plaintiff is entitled to permanent injunction as prayed for?

(2) To what other reliefs, the plaintiff is entitled to?

(3) Whether the plaintiff is entitled to get protection under the cultivating tenant?

3. Ultimately, after trial, with respect to issue nos.1 and 3 directed the plaintiff to work out his remedy before the Revenue Divisional Officer and in respect of issue no.2, it was found that the plaintiff is not entitled to any other relief, since the plaintiff was found to be cultivating tenant, the Civil Court has no jurisdiction and hence, the Suit was transferred.

4. According to the revision petitioners, the order passed by the Trial Court is one without jurisdiction. The Revenue Divisional Officer or any other authority under the Tamil Nadu Cultivating Tenants Protection Act, 1955 could not grant a relief of permanent injunction and it is only the petition for eviction of tenant or application for restoration of possession could be transferred. But, transferring an injunction application makes the order nullity and without jurisdiction. Instead of deciding the main issue of permanent injunction, the Trial Court usurped the powers of the Record Officer and rendered a finding which is illegal and contrary to the judgment of the Hon'ble Supreme Court as well as the judgment of the Full Bench of this Court. Since no decree was passed against the respondent, he could not prefer any appeal and therefore, the revision is maintainable.

5. Per contra, the learned counsel appearing for the respondent/plaintiff would contend that the Suit was decided after full-fledged trial and a decree and judgment was passed by the Trial Court. As long as the decree complies with the ingredients of Section 2(2) CPC, whether it is an order of transfer or not, it shall be considered as a decree and an appeal only is maintainable against the decree. In respect of issue no.3 there is a categorical finding that the plaintiff is a cultivating tenant and therefore, the revision petitioners cannot maintain this revision. Their only remedy is filing of an appeal against the judgment and decree. In order to overcome the limitation period, the revision petitioners have come up with the Civil Revision Petition under Article 227 of the Constitution of India.

6. The Hon'ble Supreme Court in VIRUDHUNAGAR HINDU NADARGAL DHARMA PARIBALANA SABAI VS. TUTICORIN EDUCATIONAL SOCIETY AND OTHERS [2019 (9) SCC 538] has categorically held that when a remedy is available under Order 43 Rule 1 CPC, the High Court shall not entertain the application under Article 226 / 227 of the Constitution and therefore, the revision shall not be entertained and the petitioners shall be directed to avail the remedy of appeal under Section 96 CPC.

7. Heard the submissions made on either side.

8. The Hon'ble Supreme Court in BANARSI AND OTHERS VS. RAM PHAL [2003 (9) SCC 606] has held thus:

"8.Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one ag