2017 PLP 1629 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, C.J.

This petition for leave to appeal has been filed from the judgment of the High Court dated 29th March, 2017, whereby appeal filed by the petitioners herein, has been dismissed.

2. Precise facts of the case are that the plaintiffs-petitioners, herein, filed a suit for declaration and perpetual injunction against the defendants-respondents, herein, in Civil Court No.II, Muzaffarabad on 07.08.2012. It was averred in the plaint that plaintiff No.1 and defendant No.1 are real brothers and the other plaintiffs and defendants are real uncle and nephew. It was claimed that the land left over by Syed Asghar Ali Shah was divided in his life time between the parties through family settlement dated 30.05.1988. All the co-shares are in possession of the land on the basis of aforesaid family settlement. It was claimed that father of plaintiffs Nos.2 to 8 has died and now defendant No.1 has created a dispute regarding family settlement and filed an application for partition before the Revenue Assistant Muzaffarabad. The suit was contested by the defendants on the ground that family settlement has no legal value and land has to be divided by the Revenue Assistant among the co-shares. On 14.12.2013 an application was filed by the defendants under Order VII, Rule 11, C.P.C., stating therein that the Civil Court has no jurisdiction to hear the case and the plaintiffs have no cause of action because the matter is pending for partition before the Revenue Assistant. The learned trial Court after hearing the parties rejected the plaint vide judgment dated 31.03.2014. The petitioners feeling aggrieved from the said judgment filed an appeal before the Additional District Judge Muzaffarabad, on 26.04.2014, which was also dismissed. The petitioners filed second appeal before the High Court which also met the same fate through the impugned judgment dated 29.03.2017, hence this petition for leave to appeal.

3. Mr. Lakhi Zaman Khan, Advocate, the learned counsel for the petitioners after narration of necessary facts seriously objected to the impugned judgment and submitted that the plaint according to the rules was not liable to be rejected rather the suit was maintainable. The plaint has been wrongly rejected under the provisions of Order VII, Rule 11, C.P.C., whereas, according to the peculiar facts and circumstances of the case the said provisions are not attracted. He submitted that through the registered deed the property has been partitioned among the parties since long. The parties also by their conduct are estopped to dispute the partition. The respondents wrongly approached the revenue Court for partition of the property and the revenue Court despite pendency of civil suit and stay order conducted the proceeding. In this state of affairs, the impugned judgments are liable to be set aside while restoring the plaint.

4. Conversely, Mir Sharafat Hussain, Advocate, the learned counsel for the respondents forcefully defended the impugned judgment and submitted that according to law the revenue Courts are vested with the exclusive jurisdiction relating to the matters of partition of the property which has already attained finality. The civil suit has been filed with mala fide intention, thus, the plaint has rightly been rejected. All the three Courts have unanimously recorded the findings. There is no illegality in the impugned judgments. No question of law is involved, therefore, this petition is liable to be dismissed.

5. I have considered the arguments of learned counsel for the parties and examined the record made available. Admittedly, regarding the suit property the partition proceeding before the revenue Court was also initiated. According to the provisions of enforced West Pakistan Land Revenue Act, 1967 the revenue Courts are not only vested with the powers of partition of the land but under the provisions of section 141 of this Act the question of title can also be determined by a revenue officer himself as a Civil Court or the same may be referred to the civil Court. The petitioners have built their plaint on the main ground that the property has been partitioned among the parties vide registered deed on 30.05.1988. In this context, the provisions of section 147 of the West Pakistan Land Revenue Act, 1967 are attracted that any partition privately effected is subject to affirmation by the revenue officer and any of the parties may approach the revenue Officer for affirmation of such partition privately effected. In this context, whether there is question of title or any party wants affirmation of partition privately effected, in both the cases the jurisdiction vests in the revenue Court. In this state of affairs, the judgments of Courts below are quite consistent with the spirit of law not calling for any interference. Therefore, finding no force this petition along with application for interim relief stands dismissed. No order as to costs. ZC/66/SC(AJ&K) Petition dismissed.