2016 PLP 1120 (YLR)

LAL JAN KHATTAK, J.

This revision petition under Section 115, C.P.C. is directed against the judgment and decree dated 02.04.2013 of the learned Additional District Judge-III, Abbottabad, whereby the respondents-plaintiffs' appeal against judgment/order and decree dated 04.12.2012 of the learned Civil Judge-IX, Abbottabad, has been accepted and the case has been remanded to the trial Court for its decision on merits.

2. Brief facts of the case are that the respondents Nos.1 to 6 filed a suit against the petitioners and others for declaration to the effect that they are owners-in-possession of the landed property measuring about 19 kanal 09 marlas falling in khasra No.2616 of Mauza Nawanshehr, Tehsil and District Abbottabad, which had come to them consequent upon a private partition effected between theirs and the petitioners' predecessors. They had further prayed for setting aside the orders dated 29.08.2009 and 07.03.2012 of the DDO(J), Abbottabad, along with cancellation of partition mutation No.555 attested on 12.06.2012, whereunder khasra No.2616 has been partitioned between parties to the suit. When summoned, petitioners filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint, which was accepted by the learned trial Court on 04.12.2012 and consequently the plaint was rejected. Respondents impugned rejection of the plaint in appeal and the learned appellate Court vide judgment and decree dated 02.04.2013 set aside the order of the learned trial Court and sent the case back to it for its disposal on merit, hence, the instant revision petition.

3. Learned counsel for the petitioners contended that the respondents' plaint was rightly rejected by the learned trial Court, as same was hit by section 172(2) (xviii) of the Land Revenue Act, 1967. He further contended that private partition, if any, does not determine legal rights of the co- sharers in an undivided landed property unless same is affirmed by an order of a Revenue Officer. Learned counsel further contended that the partition proceedings were impugned by the respondents before proper forum and their such plea was turned down by the concerned Revenue Officer whose order was not further challenged in the revenue hierarchy and, as such, same has attained finality.

4. As against the above, learned counsel for the respondents, while defending the impugned judgment and decree of the learned appellate Court, contended that the respondents' plaint was not barred by section 172(2)(xviii) of the Land Revenue Act, 1967, as a very live issue has been raised therein by them qua their proprietary rights in the suit land. He further argued that when a question of title is raised then a civil Court gets ample powers to entertain a claim and decide it on merits despite the ibid provision of law.

5. I have heard arguments of learned counsel for the parties and gone through the case record.

6. Respondents' case against the petitioners is that suit khasra No.2616 and other landed property falling in khasra Nos.6419/1973/2, 1971, 6419/1973/1, 6419/1973/3, 6370/1824/1/2, 1821, 1820, 6354/1823 were jointly owned by common predecessors of the parties to the suit, which long long ago were privately partitioned whereunder khasra No.2616 had come to their share while khasra Nos.6419/1973/2, 1971, 6419/1973/1, 6419/1973/3, 6370/1824/1/2, 1821, 1820 and 6354/1823 were given to the petitioners and since then parties to the suit are enjoying their respective possession over the khasra numbers, as mentioned above, but in the revenue record the properties are still figuring as jointly owned by the parties. According to the averments of plaint, petitioners while taking advantage of the entries appearing in the revenue record, applied for partition of khasra No.2616 and succeeded in getting an ex parte order on the back of the respondents from the Revenue Court, which, according to the respondents, was not only illegal but has affected their rights in the suit khasra, as it had come to them in private partition. Furthermore, as per the contents of the plaint, the respondents have raised construction on the suit property i.e. khasra No.2616.

7. Moot question for determination in the instant case is whether the respondents' suit is barred by section 172(2)(xviii) of the Land Revenue Act, 1967 or the Civil Court has jurisdiction to adjudicate upon it? Answer to the above question is that as a question of title is involved in the case, therefore, civil Court is the only forum, which can resolve the controversy after recording pro and contra evidence. No doubt, according to the ibid section of law, a civil court shall not exercise jurisdiction over a claim for partition of an estate or holding or any question connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought but when a question of title is raised in a suit then the provisions of section 172(2)(xviii) of the Land Revenue Act, 1967 would not come in the way of a civil Court to decide the issue so raised by a plaintiff in his suit. What is a question of title and when it will arise? Question of title is the claim of a person as to his ownership in some property and it will arise when someone denies his right or interest in his property. It may include when due rights of a person are jeopardized by any mode of partition or order of a Revenue Officer.

8. In the instant case, plea of the respondents-plaintiffs was that from the time of their forefathers, the suit khasra had come to their shares by way of a private partition and since then they are its owners in possession and have raised construction thereon. It was also their plea that as a quid pro quo another set of property falling in khasra khasra Nos.6419/1973/2, 1971, 6419/1973/1, 6419/1973/3, 6370/1824/1/2, 1821, 1820 and 6354/1823 has been given to the petitioners-defendants, which is possessed by them as owners.

9. In the backdrop of above, suit of the respondents, challenging the partition proceedings and the partition Mutation No.555, squarely falls within the domain of a civil court because the private partition, as claimed, has created title and interest for the respondents in the disputed land which fact has been denied by the petitioner. The denial can be resolved only by a civil court after recording pro and contra evidence qua the plea.

10. Learned counsel for the petitioners vehemently argued that had there been any private partition amongst the co-owners then same should have been affirmed by the respondents from a Revenue Officer as envisaged under section 147 of the Land Revenue Act, 1967 failing which no importance could be given to the plea of private partition. Ibid plea of the learned counsel is of no help to the petitioners, as seeking affirmation of a private partition under the ibid section of law is optional, as the section of law lays down that in any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. The section of law nowhere postulates that in case no resort is made to a Revenue Officer for affirmation of the private partition then same will be of no legal effect. As resort to a Revenue Officer under Section 147 of the Land Revenue Act, 1967 is discretionary, and not mandatory, therefore, no prejudice would be caused to a party, which does not avail the benefits under the ibid section.

11. The learned appellate court has properly analyzed the legal and factual aspects of the case whereafter it rightly allowed the respondents' appeal. I do not see any illegality in the judgment and decree of the learned appellate Court, therefore, the instant revision petition, being bereft of any merit, is hereby dismissed. SL/3/P Revision dismissed.