2011 PLP 1625 (YLR)

CH. MUHAMMAD TARIQ, J.

This civil revision has been directed against the judgment and decree dated 4-4-2000, passed by Mr. Hassan Mabrur, Additional District Judge, Gujrat whereby the appeal of the petitioners was dismissed and the judgment and decree passed by the learned trial court Gujrat was upheld.

2. Brief facts of the case are that the respondents-plaintiffs filed a suit for declaration with consequential relief on the ground that the parties are owner in possession of land measuring 684 kanal 16 marla fully described in para 4 of the plaint. According to the plaintiffs-respondents, a decree was passed in the year 1906 in favour of Moladad and others and shares of the parties were declared, however, these settled shares of the parties were changed by the consolidation authorities vide Mutations Nos.98 and 99 dated 2-6-1974.

3. Feeling aggrieved of Mutations Nos.98 and 99 dated 2-6-1974, the plaintiffs-respondents filed an appeal before the Collector. The plaintiffs-respondents alleged that the consolidation authorities were not competent to do so and the Mutations Nos.98 and 99 dated 2-6-1974 be declared illegal, void and ineffective on their rights. They also alleged that the said act was done without bringing the same into their knowledge which is against the principle of natural justice. However, the appeal of the plaintiffs- respondents was dismissed on the ground of limitation without touching the merits of the case. The order of the Collector was agitated in appeal before the Additional Commissioner, which was dismissed again on the ground of limitation and finally the revision petition was filed before the Board of Revenue which met the same fate. So, the plaintiffs-respondents filed a suit for declaration with consequential relief, which was resisted by the petitioners-defendants. After framing of issues and recording of evidence, learned Civil Judge, Gujrat vide his judgment and decree dated 6-6-1988 decreed the suit of the plaintiffs-respondents. The petitioners filed an appeal which was dismissed on 4-4-2000 by the learned Additional District Judge, Gujrat. Hence this civil revision.

4. Learned counsel for the petitioners contends that the judgments and decrees passed by the learned lower courts are against the law and facts and suffer from legal infirmities and inherent defect. He further contends that the exclusive jurisdiction in the matter vests in the revenue hierarchy under section 172 of Land Revenue Act and the jurisdiction of civil court is ousted. Further contends that the suit is not maintainable because of mis-joinder and non-joinder of necessary parties. According to the learned counsel, the Board of Revenue, the Executive District Officer (Revenue), etc. were the necessary parties and were not impleaded parties in the suit. Further contends that section 26 of the Consolidation of Holding Ordinance expressly bars the jurisdiction of the civil court and the impugned judgments and decrees are nullity in the eye of law because the documentary evidence produced by the petitioners, i.e. Exh.D-1 to Exh.D-13 were not discussed in the impugned judgments. He has also raised objection of limitation assertion that the suit is barred by limitation. In support of his contentions, the learned counsel has relied upon 2009 SCMR 753, 1970 SCMR 292, 2000 CLC 1752 and 2004 SCMR 1883 and has prayed that the civil revision be dismissed.

5. Arguments heard. Record perused.

6. Perusal of the record shows that the matter does not pertain to the consolidation of holding but the plaintiffs' claim is about their shares in the suit property on the basis of decree passed by the civil court in 1906, therefore, the revenue hierarchy had no authority to act against the verdict of the decree of civil court. Therefore, the law relied on by the learned counsel for the petitioners is not applicable in this case.

7. The perusal of the record further reveals that the dispute between the parties pertains to their share who claim on the basis of a decree passed in the year 1906 which has no nexus with the consolidation of holding, therefore, the objection of the petitioners that the provision of section 26 of the Consolidation of Holding Ordinance bars the jurisdiction of civil court is mis-conceived. The other objection of the petitioners that the suit is not maintainable for misjoinder and non-joinder of necessary parties because the Board of Revenue, Additional Commissioner (Consolidation) and Collector (Consolidation) were not made party is also misconceived because they are not necessary and proper parties.

8. Record reveals that the decree of civil court Exh.P-6 was not between the entire owners of the revenue estate but it was a matter between the parties to the suit and other fact is that the decree Exh.P-6 was an ex parte decree but despite the knowledge, none came forward to set aside the same and it was never challenged which means that the parties were satisfied with the ex parte decree. The argument of the learned counsel for the petitioners that the suit was badly time barred is not sustainable in the eye of law because the entries in the Revenue Record were incorporated contrary to the decree Exh.P-6 and longstanding entries could only be challenged in the civil court who has the exclusive jurisdiction to entertain such matters while under the Land Revenue Act, the revenue officer or the revenue court have no jurisdiction to entertain the matters where complicated question(s) of law or fact(s) are involved. Admittedly the plaintiffs- respondents are in possession of big chunk of the land and the lands which are joint amongst the petitioners and the respondents, in those lands, each co-sharer shall be presumed as owner in each and every inch of the joint holding till the partition takes place. Similarly, period of limitation does not run against a co-sharer. The parties had remained in litigation against each other at various forums till 1980. Thereafter, the instant suit for declaration with consequential relief was filed which is well in time. There is also concurrent finding of fact by both the learned courts below against the petitioners and the impugned judgments and decrees have been passed after recording of oral as well as documentary evidence and after careful perusal of evidence. Learned counsel for the petitioners has failed to point out any illegality, infirmity or jurisdictional error in the impugned judgments and decrees passed by the learned lower courts. No interference by this Court is called for.

9. Resultantly, this civil revision fails, the same is dismissed. No order as to costs. A.R.K./M-317/L Revision dismissed.