P L D 1965 (W (PLP)

MUHAMMAD AKRAM, J.‑This is a regular first appeal against the judgment and decree passed by the Senior Civil Judge, 1st Class. Gujranwala, on the 12th of July 1956 by which he rejected the plaint of the appellant under Order VII, rule 11 of the Code of Civil Procedure on the ground that the civil Court had no jurisdiction to entertain the suit.

2. The suit was brought by the plaintiff‑appellant in the civil Court at Gujranwala for possession by partition of 1/2 share of the land measuring two kanals five marlas bearing khata No. 707, khatauni No. 1275, khasra No. 7043/4916/2474. situated in the estate of Gujranwala. It is alleged in the plaint that the plaintiff and defendant No. 1 are the joint owners of the land in suit in equal shares, that the land was lying vacant since 1955 in their joint possession, but that defendant No. I illegally let it out to defendant No. 2 by a registered deed dated 22nd of December 1954 who has constructed a factory on the premises in the absence of the appellant from Gujranwala. The plaintiff did not want to keep the land joint any longer and filed the suit for possession of his share by partition. The defendants filed separate written statements and contested the suit of the appellant. They raised a preliminary objection to the effect that the property in suit is land to which the provisions of section 4 of the Land Revenue Act are applicable, and, therefore, the civil Courts have no jurisdiction to entertain a suit for its partition. In the two written statements, it has been admitted by the defendants that the site in dispute was built upon with factories and shops by defendant No. 2 and his sub‑tenants at considerable expense. It was also alleged on behalf of the defendants that those sub‑tenants were necessary party to the suit. An objection to the valuation of the suit for the purposes of court‑fee and jurisdiction was also raised by the defendants.

3. The trial Court framed the following three preliminary issues on these objections: (1) What is the market value of the house in dispute and what will be the value for the purposes of court‑fee and jurisdiction? (2) Has not this Court jurisdiction to hear this suit? (3) Are the persons mentioned in para. 2‑A of the pre liminary objection in the written statement of defendant No. 2 necessary party?

4. The learned Senior Civil Judge, by a separate order dated 19th of June 1956 has held that the value of the suit for the purpose of jurisdiction would be Rs. 40,000, equivalent to the total value of the land and that its value for the purpose of court‑fee is Rs. 20,000 as the plaintiff claimed 1/2 share in it. These findings of the trial Court on issue No. 1 have not been challenged before us. As regards issue No. 2, the learned trial Court found that according to the evidence on record, the land was not cultivated for several years and is surrounded .by houses. It is held that the term 'land' has not been defined in the Land Revenue Act. Section 4 of that Act lays down that nothing in the Act applies to the land which is occupied as a site of a town or village and is not assessed to land revenue, and, therefore, these two conditions are necessary in order to exclude the land from the operation of that Act if the land is assessed to land revenue, even though it is occupied as a site of a town or a village, it cannot be excluded from the operation of that Act under section 4: The trial Court has, therefore, held that the Revenue Officer has jurisdiction to partition the land in suit which is assessed to land revenue, even though it may be occupied as a site of a town or a village, and under section 158, subsection (1) and subsection (2) (17), a civil Court is debarred from entertaining a suit for partition of the land. On this finding, the trial Court proceeded to reject the plaint under Order VII, rule 11 of the Code of Civil Procedure with costs. He did not go into preliminary issue No. 3, as it was not necessary four him to decide it.

5. It is clear from the entries in the jamabandi for the year 1951‑52 (Exh. P. 3) that the land in suit is assessed to land revenue. But it cannot be denied that the land has not been under cultivation for several years and the site is occupied by shops and other buildings of permanent nature constructed over it. Section 4 (1) of the Punjab Land Revenue Act (XVII of 1887) lays down that except so far as may be necessary for the record, recovery and administration of village‑ceases nothing in that Act applies to land which is occupied as the site of a town or village and is not assessed to land revenue. To exclude a certain land from the operation of the Act, two conditions must be fulfilled at one and the same time, viz. (1) it is occupied as the site of a town or village, and (2) it is not assessed to land revenue. It is equally clear that the provisions of that Act are applicable to 'land' within the meanings of the expression used in that Act. Under section 111 of the Act any joint owner of land may apply to a Revenue Officer for partition of his share in the land. This application has to be disposed of by the Revenue Officer in accordance with the powers vested in him under Chapter IX of the Act. Section 158 of the Act deals with the exclusion of the jurisdiction of the civil Courts in matters within the jurisdiction of Revenue. Officers. Subsection (1) of this section provides that a civil Court shall not have jurisdiction to entertain any matter which the Provincial Government or a Revenue Officer is empowered by that Act to dispose of or to take cognizance of the matter in which the Provincial Government or any Revenue Officer' exercises any power vested in it or him by or under the Act. In particular clause (xvii) of subsection (2) of section 158 lays down that a civil Court shall not exercise jurisdiction in respect of any claim for partition of an estate, holding or tenancy or any question connected with or arising out of the proceedings for partition not being a question as to title in any of the property of which partition is sought. Similarly, clause (xviii) excludes the jurisdic tion of civil Courts in respect of any question as to allotment of land or the partition of an estate, holding oz tenancy. The jurisdiction of the civil Courts to try the suit will be ousted only if it is found that the property in dispute is "land" within the purview of th‑se relevant provisions of the Land Revenue Act.

6. The expression "land" has not been defined anywhere in the Punjab Land Revenue Act. However, it is so defined in the Punjab Tenancy Act and a restricted meaning has been given to this expression in the later Act. Under the Punjab Tenancy Act "land" means any land occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes the site for buildings or other structures on such land. But there is nothing to show that this definition has been adopted for the purposes of Land Revenue Act as well. The expression "land" as used in section 141 of the Punjab Land Revenue Act came to be considered in Vir Bhan and another v. Sham Singh etc. (A I R 1944 Lah. 455). Section 141 of the Act provides that orders issued by any civil or criminal Court for attachment, sale or delivery of any "land" or interest in "land" shall be addressed to the Collector or such Revenue Officer as the Collector may appoint in this behalf. In the ruling just mentioned, a question arose as to whether this section would oust the jurisdiction of civil Court to execute decrees of attachment or sale of the land assessed to land revenue on which house and shops are built. It was held there that in drafting section 141, all that was envisaged by its draftsman was "land" in the plain sense of the term, that is, land that has not been built upon and was in its original state and the special procedure prescribed by section 141 of Act is not meant to be followed in cases where the property attached is not bare land but house and shops, etc. It was observed' in that judgment that the phrase "land" in section 141 has a special and restricted meaning and does not comprise sites assessed to land revenue on which buildings with structures of a permanent character have been constructed. It was also remarked that by virtue of the provisions of that section it was not intended to confer power on the Collector to sell house and shop property worth lacs of rupees constructed on a site paying an insignificant sum of money as revenue to the Government. In another case, Rameshawar Nath v. Jageshar Nath and other (A I R 1953 Punj. 250) from the Indian jurisdiction after reference to the identical provisions of the Land Revenue Act it was held that that Act does not exclude the jurisdiction of civil Courts in regard to lands on which houses, shops and factories have been built.

7. Agricultural land does not ipso facto cease to be liable for the payment of land revenue merely because houses, shops and factories have been built on it. In fact section 48(1) lays down that all land, to whatever purpose applied and wherever situate, is liable to payment of land revenue to the Government except such land as has been exempted from that liability and such land as is included in the village site. There is no denial of the fact that the mere inclusion of a certain area in the municipal limits for the purposes of administrative convenience does not ipso facto make it the site of a town or village and exclude it the purview of the Act. The relevant provisions for the assessment of land revenue merely refer to the rights of the Government to realise land revenue even on that portion of the land on which buildings have since been put up. It would be of interest to refer to a case, Shah Muhammad v. Mst. Pyari (A I R 1936 Lah. 202) in which the phrase "owners of the estate" as used in section 16(c) (thirdly) of the Punjab Pre‑emption Act came to be interpreted and it was held that the owner of a plot of land situated within the Municipal Limits of a town which was once agricultural‑ land and which was afterwards built upon and became urban immovable property, can no longer be deemed to be an "owner of the estate" within the meanings of that section. In that connection the Court gave restricted meaning to that expression and observed: "Moreover, the word `estate' as defined in the Punjab Land Revenue Act, to our opinion, applied to agricultural lands only and does not include any other class of property. As soon as agricultural land is converted into building site whether in a village or in a town, its owner, so to say, walks out of the estate and ceases to have any connection with it any longer. He establishes a new character for his possession and is, therefore, to be treated on that basis."

8. The learned counsel for the respondents has relied on Ahmad Yar Khan v. S. K. Bhose (A I R 1925 Lah. 583), to support his contention. In that case it was held that the word "land" has been used 'in the Punjab Land Revenue Act in its ordinary concept and includes everything which is above or beneath the surface of the earth. In that case an objection was taken against validity of the attachment of certain property on the ground that a copy of the order of attachment was not affixed in the office of the Collector as required under Order XXI, rule 54, C. P. C. In that connection it was held that rule 54 is of general application and specifically states that where the property is land paying revenue to the Government, the notice should be affixed in the Collector's office. In that context it was remarked that land comprises not only the site but also the building which has been erected upon the site. The case was considered and not followed in Vir Bhaij arid another Sham Singh, etc. and if he may say so with respect, for very good reasons. We fully agree with the learned Judges in holding that the phrase "land" in section 141 of the Land Revenue Act has a special and restricted meaning and does note comprise site assessed to land revenue on which buildings with structures of a permanent character have been constructed. It was not intended by the framers of the Act to confer powers on the Revenue Officers in respect of house and shop properties worth lacs of rupees constructed on a site paying insignificant sum of money as land revenue to the Government although the site may have completely lost all the characteristics oh agricultural land and has instead assumed its importance as a business centre. This is particularly true of the provisions in Chapter IX of the Land Revenue Act dealing with the partition of lands, Revenue Officer does not have any jurisdiction to entertain an application for the partition of the properties which have ceased to be land, notwithstanding the fact that they continue to be assessed to land revenue. Disputes for the partition of such properties can be properly dealt with in the civil Court.

9. For the reasons discussed above, this appeal is bound to succeed and is, accordingly, accepted. But under the circumstances of the case we have left the parties to bear their own costs in this Court. As w a have set aside the order passed by the trial Court, this case shall now go back to the Court below for the disposal of the suit between the parties in accordance with law. Since we have reversed the order of the trial Court rejecting the plaint and remanded the case for the disposal of the suit in accordance with law, the full amount of the Court fee paid on the memorandum of appeal in this Court should be refunded to the plaintiff‑appellant. K. B. A. Appeal accepted.