P L D 1962 Azad J & K 29 (PLP)

Respondent No. 2 in person. ABDUL HAMID KHAN, J.--‑This .is a revision petition against the judgment of the District Judge, Muzaffarabad, dated 15‑7‑1961. In this judgment, finding was given by the learned District Judge on two issues, namely :‑ (4) Whether the suit is cognizable by a Revenue Court ? (O P D) (5) In case issue No. 4 is not proved, whether the suit is triable by the Court of a Sub‑Judge ? (O P D) On issue No. 4 finding of the District Judge is that the suit is not triable by a Revenue Court. The finding on issue No. 5 is that the suit is not triable by a Sub‑Judge, as the land revenue of the land, the subject‑matter of the suit, is Rs. 192‑6‑0 and it 30 times comes to Rs. 5,771‑4‑0, whereas the Sub‑Judge's jurisdiction to hear cases is upto the value of Rs. 5,

000. It has been argued on behalf of the petitioners that since the suit is a suit for partition, it is cognizable by a Revenue Court, in view of the provisions of section 158 of the Land Revenue Act. It was further argued that even if there was a question of title involved, still the suit would be cognizable by a Revenue Court in view of the provisions of section 117, Punjab Land Revenue Act. In reply, it was stated that since the question of title was involved in the case and no application for partition had been made to the Revenue Court, it was open to the plaintiff to file this suit in a Civil Court. A I R 1936 Lah. 589 has been referred to in this connection. We have carefully read sections 117 and 158 of the Land Revenue Act and what we understand after reading these two sections is that when there is a question of title involved in any partition proceedings, the Revenue Court may decline to grant the application for partition until the question of title has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court. In the present case, no application for partition was ever made to a Revenue Officer and, therefore, any reference to section 117 or 158 of the Punjab Land Revenue Act seems to us to be unnecessary. A I R 1936 Lah. 589 has rightly been referred to by the counsel for the respondents. The question involved in the present case is a question of title pure and simple as is clear from averments in paras 7 and 8 of the plaint. We, therefore, see no reason to hold that the suit is cognizable by a Revenue Court and not by a Civil Court. The finding of the District Judge, that the suit is not triable by a Revenue Court, is correct and we confirm this finding. As for issue No. 5, it is admitted by the parties that it is 30 times the land revenue that determines the value of the suit for purposes of jurisdiction. But it is contended on behalf of the petitioners that 30 times the land revenue should be calculated not on the land revenue of the entire land but on the land revenue of the portion of the land claimed by the plaintiff and that if worked out in that manner the value for purposes of jurisdiction being less than Rs. 5,000, the suit would be cogniz able by the Sub‑Judge and not by the District Judge. On the other hand, it was contended by the respondents that since it was a suit for partition and the Court shall have to deal with every bit of the whole property and not merely with the portion of the plaintiff, hence the value for the purpose of jurisdiction of this suit would be 30 times the land revenue of the entire land. The land revenue of the whole land is Rs. 192‑6‑0 ; its 30 times would come to Rs. 5771‑4‑0 and would be cognizable by the District Judge. Now the question pivots round the fact whether 30 times is to be calculated on the land revenue of the entire land or the portion of the land claimed by the plaintiff. The view of the Calcutta and Patna High Courts has been that since the whole property is affected in a partition suit, therefore, the whole property becomes the subject matter of the suit. If the view of these two High Courts is taken then 30 times the land revenue in this case shall have to be calculated on the land revenue of the entire land. We have been referred to a Full Bench ruling P L D 1960 Dacca 789 by the learned counsel on behalf of the petitioners. In this ruling the learned Judges have dealt at length with the Calcutta and Patna view and after discussing the views of the different High Courts have come to the following conclusions :‑ (a) That in any suit for partition, where the plaintiff claims to be in joint possession, if the suit, as framed, discloses, that the object of suit is merely to separate the share of the plaintiff from that of the defendant, the value of the share would determine the forum of the suit. (b) On the other hand if the object of the suit is partition of the entire estate, the value of the entire land will determine the forum of the suit. After carefully reading the judgment of their Lordships of Dacca High Court, we feel convinced that the conclusions arrived at by them are the correct conclusions, we have no hesitation in finding ourselves in agreement with them and judging the present case in the light of those conclusions, We can say, without fear of contradiction, that the present suit, as framed, merely seeks to separate the share of the plaintiff from the defendant's and, therefore, it would be the value of the share of the plain tiffs as calculated by the petitioners that would determine the forum of the suit and that being the case since the value for purposes of jurisdiction is definitely less than Rs. 5,000, the suit would be triable by the Sub‑Judge. It may be mentioned for the sake of clarification, that the plaintiffs are already in possession of 105 kanals and 6 marlas of land out of the whole land measuring 512 kanals and 10 marlas but still claim possession of 155 kanals and 4 marlas more. The value for the purpose of jurisdiction in such a case would be 30 times the land revenue on 155 kanals and 4 marlas. For these reasons, we disagree with the learned District Judge with regard to his finding on issue No.

5. We, therefore, set it aside and hold that proper forum of the suit is the Court of Sub‑Judge, who should hear the suit and dispose it of. The revision thus stands accepted. Costs to follow the event. Petition accepted.