P L D (PLP)

Kh. Abdur Rahim assisted by Shaukat Ali for Petitioners. Khizar Tamimi for Respondents Nos. 1 to

14. Respondents Nos. 15 and 16 : Ex parte. This order will dispose of the two Revision Petitions Nos. 593 and 594 of 1961‑

62. The facts briefly are that the property in dispute was willed by Jamal Din the last holder in favour of the petitioners, who are his grandsons and Mst. Rehmat Bibi, his daughter‑in‑law. The respondents claimed a share in it on the strength of Muslim Personal Law and subsequently applied for its partition. The petitioners claim the property on the strength of the will but the Civil Courts decided against them and the matter, I am given to understand, is now pending with the Supreme Court. In the meanwhile partition proceedings were revived after the decision given by the High Court. The petitioners have now raised the plea of adverse possession, The Assistant Collector refused to take this plea into considera tion and proceeded with the partition in spite of the fact that a civil suit based on the plea of adverse possession had beer lodged. The Assistant Collector's decision has been upheld it appeal and in revision and a second revision has now beer filed. The sole point that has been taken up before me is that once a question of title is raised in partition proceedings on two courses are open to a Revenue Officer : either to constitute himself into a Civil Court and determine this question or refer the parties to a competent Court of civil jurisdiction. There is no third alternative. The ground that has been urged o~ behalf of the respondents is that the question of title had already been decided by the High Court and the plea of adverse possession is merely frivolous in character. The Revenue Officer, therefore, was right in proceeding with the partition. In this connection reliance is also placed on the provisions of Order II, rule 2, Civil Procedure Code which lays down as follows :‑ " (i) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action‑ . . . . . . . . , . It is argued on the strength of this rule that the second suit based on the plea of adverse possession is barred though it has been admit ted by the Civil Court where this plea does not seem to have been taken. It is contended that if frivolous pleas of title are allowed to be raised there will be no limit to litigation and matters would not have a finality. However, law admittedly is that a second suit based on different cause of action is maintainable and in the case before me the second cause of action has arisen, only after the expiry of a period of 12 years. In my opinion the plea of adverse possession is not maintainable before me and is a matter for determination by the Civil Courts. There is, however, no doubt in my mind that the procedure which has been adopted in continuing the parti tion proceedings when a Civil Court is dealing with the question of title raised during the proceedings is contrary to the provisions of section 117 of the Land Revenue Act. It has been held time and again that when a question of title is raised no third course of action is open to a Revenue Officer. He has either to determine the matter himself as a Civil Court or refer the parties to a competent Civil Court and await its decision. I would accordingly accept both the revision petitions set aside the order passed by the officers below and direct that the partition proceeding be stayed till the question of the title pending with the Civil Court has been determined. K. B. A. Revisions accepted.