2000 PLP 1626 (CLC)

1997 SCMR 1792 ref. Mehdi Khan Chohan for Petitioners. Shahid Hussain Qadri for Respondents. Date of hearing: 9th May; 2000. The petitioner filed a suit for partition of land measuring 2 Kanal and 7 Marlas comprised in Khasra No.1470, Mauza Shampur, Tehsil Kharian, District Gujrat. His claim is that this is a built‑up property and has attained the character of village immovable property. This suit was contested by the respondents and, after framing of issues and conducting the trial, learned Civil Judge, on 8‑10‑1997, allowed the suit holding that the petitioner is owner to the extent of 1/4th share, thus, preliminary decree was passed. Against the above, respondent preferred an appeal and the learned appellate Court vide judgment and decree dated 20‑1‑1990, has allowed the same concluding that Khasra Nos.266, 1546 and :552, are also joint between the parties. All the property has attained the character of residential property, thus, the plaintiff was directed to. include these Khasra numbers also in the partition suit and the Civil Judge to decide the matter afresh.

2. The learned counsel for the petitioner has argued, by relying upon 1997 SCMR 1792, that Khasra numbers, directed by the appellate Court, to be included, were still agricultural land and, therefore, Civil Court has no jurisdiction in this regard, whereas, land subject‑matter of the suit was built up property, in the shape of Havaili and other superstructure; both these properties cannot be joined in one suit.

3. The learned counsel for the respondent, before making submissions on merits, has objected to the maintainability of the present petition on the score that the impugned judgment and decree neither suffer from material irregularity nor is the result of erroneous exercise of jurisdiction, therefore, this revision petition is incompetent. However, the learned counsel for the respondent has not denied the fact that the property bearing Khasra No. 1470 is builted property while the land comprised in Khasra numbers 266, 1546 and 1652 is agricultural as per Revenue Record.

4. As regards the objection about the maintainability of this revision petition, suffice it to say that according to the Revenue Record, Khasra numbers mentioned above, are shown in the Revenue Record as agricultural land. Thus, these cannot be included in the suit for partition filed by the petitioner. Therefore, the learned Additional District Judge, while passing the judgment and decree has committed an error of jurisdiction, in the light of the judgment of the Honourable Supreme Court cited above. Therefore, A this objection has no merits.

5. As the learned Additional . District Judge has committed jurisdictional error, by directing the inclusion of the aforementioned Khasra numbers in the suit for partition filed by the petitioner, therefore, such judgment and decree cannot sustain, which is hereby set aside, the case is, remanded to the learned Additional District Judge with the direction to I decide the matter in accordance with the law. H.B.T./R‑16/L Petition allowed