2011 CLC 490 (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner, plaintiff in a suit for declaration against the defendant/respondents wherein he has sought for declaration to the effect that he is owner in possession of the suit property on the strength of two mutations and the entry of sale mutations in favour of respondents 1 and 2 is wrong, based on fraud and has got no adverse effect upon his rights which is the result of collusion of defendant/respondents 1 and 2 with defendant/respondent No.3. The respondents 1 and 2 after putting appearance in the case, applied for rejection of plaint under Rule-11 of Order VII of C.P.C. being barred by the provisions of section 172(2)(vi) of the West Pakistan Land Revenue Act, 1967. The learned trial Court vide its order dated 29-7-2008 dismissed the said application where against the respondents approached the revisional Court who by accepting the revision petition of the respondents vide its judgment dated 4-7-2009 rejected the plaint of petitioner being barred by law. Hence, the petitioner has impugned the order of rejection of plaint through instant writ petition being illegal, unlawful and without jurisdiction having no adverse effects on the rights of the petitioner.

2. As against that, the learned counsel for the respondents 1 and 2 by placing reliance on the provisions of section 172(2)(vi) of the Act ibid submitted that the suit of the petitioner was not maintainable being barred by law and the civil Courts are not supposed to exercise jurisdiction over the matters relating to the correctness of any entry in a record of rights, periodical record or register of mutations and requested for dismissal of the instant writ petition.

3. We have heard the learned counsel for the parties and have gone through the record of the case. The record of the case would reveal that the petitioner on the strength of certain mutations in his favor has sought' for declaration to the effect that be is owner in possession of the property fully detailed in the head note of the plaint. Besides, the petitioner has also challenged the entry of two mutations in the names of defendants 1 and 2 being the result of collusion of the defendants with the Patwari Halqa, defendant No.3, and the same is wrong and based on fraud having no adverse effects. The plaint of the petitioner would further reveal that he got the cause of action on getting knowledge of said wrong and unlawful entry in the name of defendants and on the refusal of the defendants to correct the same.

4. On the other hand, the provisions of section 172 of West Pakistan Land Revenue Act, XIV of 1967, by explaining different situations have barred the jurisdiction of civil Courts. For the' purpose of this case, the relevant provisions of section 172(1)(2)(vi) are reproduced below:-: "

172. Exclusion of jurisdiction of Civil Courts, in matters within the jurisdiction of Revenue Officers.

(1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of or take cognizance of the matter in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act. (2) Without prejudice to the generality of the provisions of subsection (1), a Civil court shall not exercise jurisdiction over any of the following matters, namely: (i) .. (ii) .. (iii) .. (iv) .. (v) .. (vi) the correction of any entry in a record-of-rights, periodical record or register of mutations." The overall perusal of said provision would reveal that the civil Court if takes in hand the function assigned to the revenue Courts regarding discharge of their function, then in that case its jurisdiction would be barred. By specifically considering the above said provision of the Act ibid, it would reveal that Civil Court will have no jurisdiction in the matters wherein the Government, the Board of Revenue or any Revenue Officer is empowered by the Act ibid to dispose off or to take cognizance of the matter in which Government, the Board of Revenue or any Revenue Officer exercising any powers vested in it or him by order under this Act. The function of the Revenue Court, Revenue Officers etc. is to prepare and maintain the Revenue Record and the jurisdiction of the civil Court is barred to interfere in their functions specifically explained in section 172 of the Act ibid whereas the job of the civil Courts is to determine the civil rights and questions of title of the persons before the 'Court. Section 42 of the Specific Relief Act, 1877 confers the right upon an aggrieved person to seek such declaration from the civil Court. Section 53 of the Act ibid also empowers a person feeling aggrieved of the entries of the record-of-rights regarding any right in the property, to 'approach the civil Court and seek declaration under Specific Relief Act, 1877. So, the delicate difference of the two provisions i.e. section 53 and section 172 of the Act ibid should' always be kept in mind while confronting a question like one in hand.

5. So, while keeping in mind, the facts and circumstances of the instant case, nothing of the sort was going to happen which could suggest interference in the acts of revenue hierarchy as such. The plaint as it reflects is for a simple declaration of the petitioner's right and entitlement regarding the property and by alleging that the entry made by revenue officials in the names of respondents is wrong, fraudulent and is the result of collusion. It is simpliciter a suit under section 42 of the Specific Relief Act, section 53 of West Pakistan Land Revenue Act, 1967 provides such a remedy to an aggrieved person to approach the Civil Court through a suit for declaration for any wrong entry in the record of rights affecting his rights. So, the exercise of jurisdiction by the learned revisional Court under Order VII, rule-11, C.P.C. regarding bar of jurisdiction of civil Court under section 172 of the Act ibid on the face of it appears to be against the law which in our view is not maintainable.

6. While further evaluating the circumstances of the instant case, yet another aspect in exercise of jurisdiction under Order VII, rule-11, C.P.C. cannot be overlooked. The case of the petitioner which on the face of it involves a question of fact requiring further probe in the shape of recording of evidence and proving the same in accordance with law cannot be decided unless such an exercise is made. The rejection of plaint in a matter like one as discussed above has never been appreciated by the Superior Courts of the land, rather it has repeatedly been recommended that the matter involving question of fact requiring proof through production of evidence should not be rejected summarily but after framing of issues and recording of evidence pro and contra which in this case has not been done.

7. So, what has been discussed above, we are unanimous in our view that the jurisdiction exercised by the revisional Court is not based on proper appreciation of law which calls for interference by this Court in exercise of constitutional jurisdiction 'under Article 199 of the Constitution of Islamic Republic of Pakistan. Hence this petition is allowed and the impugned order of rejection of plaint is hereby set aside and the case is sent back to the learned trial Court to decide the matter in the light of observations made above. M.U.Y./331/P Petition accepted.