2016 PLP 831 (CLC)

MAZHAR ALAM KHAN MIANKHEL, C.J.

This judgment shall dispose of instant C.R. No.328/2013 as well as connected C.R. No.703/2014 as both the revision petitions have been filed by same parties on the same subject matter.

2. Facts of the case are that Khan Baz and Tura Baz, filed a suit No.141 in year, 2010, against their brothers, namely, Ranra Baz etc, for declaration and permanent injunction to the effect that they are owners in possession of the property bearing Khasra Nos.118, 1/119 and 1/115, measuring 27 K-3 M, on the basis of partition Mutation No.2101 attested on 23.6.2009 vide order of District Officer Revenue (J) passed in partition proceedings, therefore, the defendants have got no concern whatsoever with the disputed property and also sought for demolition of the house present in the suit property. Similarly, Ranra Baz and others, defendants in the above referred suit, also filed a suit No.143/1 against Khan Baz and others, plaintiffs in the above referred suit, on the same subject matter alleging therein that they are owners in possession of the house, situated in Khasra No.118, which had been constructed some sixty years back but the defendants Nos.1 and 2 in connivance with the defendants Nos.3 and 4 were successful in allocating the above said khasra numbers in their lot and partition mutation No.2101 dated 30.9.2009 was attested accordingly in their favour, so, the same is ineffective upon their rights and liable to cancellation.

3. Both the suits were contested by respective parties by filing written statements. Learned Trial Courts instead of consolidating both the suits, rejected suit No.143/1 under Order VII, rule 11, C.P.C. vide judgment/order dated 24.5.2012, while suit No.141/1 was proceeded and after recording pro and contra evidence, decreed the same vide judgment dated 15.12.2012. The order of dismissal of suit No.143/1 under Order VII, Rule 11 was challenged in appeal No.119/13,which was accepted by learned Additional District Judge-V, Kohat, vide its judgment/order dated 25.2.2013, resultantly the judgment/order of the Trial Court was set aside and the case was remanded back to the trial court for decision afresh after conducting the trial, whereas judgment and decree dated 15.12.2012, vide which suit No.141/1 was decreed, was challenged in appeal No.27/13, which was dismissed by learned Additional District Judge-III, Kohat, vide his judgment dated 17.6.2014. Unhappy therewith, both the parties filed Civil Revisions Nos.328/2013 and 703/2014 before this Court.

4. Learned counsel for the petitioners, Ranra Baz etc., argued that the house in question was jointly constructed by the parties in the disputed khasra number some sixty years back and after private settlement (private partition) amongst the brothers, possession of the same was also delivered to them and they have been residing in it since long but the respondents Khan Baz etc with the connivance of Revenue staff got attested partition Mutation No. 2101 on 23.6.2009 on the order of DOR (J) passed in a partition proceedings. He further argued that neither the petitioners were arrayed as party in the partition proceedings nor they were in knowledge of the partition proceedings or attestation of disputed mutation, therefore, the disputed mutation is wrong and liable to cancellation.

5. Learned counsel for the respondents, Khan Baz etc, on the other hand, submitted that mutation No.2101 was correctly attested in the light of partition proceedings and the petitioners, if aggrieved from the order of the DOR (J), should have challenged the same before the Revenue hierarchy. He also submitted that under section 172 of the Land Revenue Act, Civil Court has got no jurisdiction to entertain such like suits.

6. Learned counsel for the parties were heard and record of the case was perused.

7. Admittedly, both the suits have been filed against the same subject matter by the same parties but astonishingly, the same were not consolidated and were tried separately by different Courts. This aspect of the case is noted with great concern. It was the bounden duty of the lawyers concerned to have informed the courts or have applied for consolidation of the suits. This in a way amounts to professional misconduct. It is expected that such like practice would be avoided in future. The perusal of record reveals that learned Trial Court rejected the plaint of suit No. 143/1 under Order VII, Rule 11, C.P.C. on ground that under section 172 of the Land Revenue Act, Civil Court has got no jurisdiction to entertain such like suits as the mutation has been attested in the light of partition proceedings and the proper forum for filing appeal/revision was the revenue hierarchy and not the Civil Court. Learned appellate Court vide judgment/order dated 25.2.2013 while reversing the judgment/order of the Trial Court, remanded the case back to the Trial Court to decide the same on merits after recording pro and contra evidence and has rightly done so because where question of title is involved, the Civil Court has got the jurisdiction. Jurisdiction of Civil Court is ousted under section 172 of the Land Revenue Act (XVII of 1967) "The Act" only to the extent of correction of the entries made by the Revenue Officer in performance of its duties without touching the rights of the persons in land record or in the record of rights. It is well settled that mutation entries do not establish title and if title of a party is under clouds then such party has got every right to approach the Court of plenary jurisdiction for enforcement of its right under section 53 of the Act. No doubt, under section 135 of the Act, any joint owner of land can approach Revenue Officer for partition of his share in a jointly owned land and under clause (xviii) of Subsection (2) of Section 172, Civil Court shall not exercise jurisdiction over any claim for partition or any question connected with or arising out of proceedings for partition provided his title is not denied by other co-sharers and if question of title is there then the Revenue Officer under section 141(1) of the Act can either take cognizance of that objection himself or stop the partition proceedings and ask a party to approach Civil Court and get resolved the question of title as required under section 141(2) of the Act. It would also be not out of place to mention here that if the land is agricultural one then the Revenue Officer has the jurisdiction to entertain application for partition and if there is building or residential houses over it, then in that case the Civil Court has the jurisdiction to entertain suit for partition. In the case in hand, the suit of the petitioners regarding declaration and permanent injunction revolves around the question of title as they claim that they are owners of a residential house which is situated in the khasra numbers under partition and the partition proceedings were conducted in their back/absence, therefore, such a suit can only be entertained and decided by a competent civil court.

8. As far as Civil Revision No.703/2014 filed by Ranra Baz etc. is concerned, the perusal of file would reveal that Mutation No.2101, on the strength of which, the respondents have sought demolition of house of the petitioners, has been attested in partition proceedings wherein the petitioners were neither made party nor notice was served upon them in spite of the fact that they were having a residential house in the disputed property, which fact has also been admitted by the DWs in their statements by deposing that the house in question was present in disputed property for the last sixty years. It has also been admitted by the DWs that the house was constructed jointly and in private settlement the same devolved upon Ranra Baz etc, the petitioners. The record further reveals that during pendency of suit No.141/1, commission was appointed, who submitted his report, according to which the disputed house is situated in khasra Nos.118 and

119. In the given circumstances, the important question of law arises as to whether Revenue Officer could order partition of a khasra number where any building/residential house is situated or whether it was not his legal duty to withdraw the khasra number from partition scheme. To get the proper answers of the above questions, remand of both the cases has become inevitable.

9. Without touching other merits of the cases, lest it may prejudice the case of either side, the instant C.R. No.328/2013 filed by Khan Baz and other is dismissed by maintaining the judgment and decree of the appellate Court while C.R No.703/2014 filed by Ranra Baz and others is accepted, judgments and decrees of both the courts below are set aside and record of both the cases be sent to learned Senior Civil Judge concerned for further transmission of the same to one Court who, after consolidating both the suits, should decide the same on merits by recording evidence of both the parties. Parties are left to bear their own costs. SL/441/P Case remanded.