2011 PLP 1724 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN J.

Through this constitutional petition the petitioner has challenged the order dated 21-10-2009 passed by respondent No.1.

2. Briefly stated the facts of petition are that petitioner filed an application for partition of land being the part of holding No.499 Jahangir Abad Tehsil and District Multan. The Tehsildar passed an ex parte order of partition on 18-7-1995. Tehsildar on the basis of ex parte order prepared 'Wanda' of square No.58 Kila No.1/1,10/2 Square No.59 Kila Nos.3/2, 5/2, 6/1, 6/2 measuring 9 kanals and 16 marlas on 26-3-1996. The respondents coming to know about an ex parte order filed an appeal before District Officer (Revenue) Multan who rejected the appeal on 4-2-2009. The revision petition was filed before E.D.O(R) Revenue Multan that too was dismissed on 18-3-2009. The respondents filed R.O.R No.500 of 2009 which was allowed vide impugned order dated 21-10-2009. The petitioner has challenged the Order dated 21-10-2009 through the present Constitutional petition.

3. Learned counsel for the petitioner submits that impugned order dated 21-10-2009 is against law and facts. Learned counsel further submits that learned Member Board of Revenue erred in law by holding that service of petitioner was not effected u/s 24 of Land Revenue Act. He relied on Saifullah and 2 others v. Mst. Kausar Parveen (2006 YLR 526). He submits that respondents filed two civil suits which were dismissed and the ex parte order attained finality, the revision petition before the respondent No.1 was hopelessly barred by time.

4. Learned counsel for the respondent submits that original order passed by the Tehsildar on 26-3-1996 was void, as the respondents were never served in terms of section 24 of Land Revenue Act. Submits that property subject matter of impugned order falls in Abadi Deh and under section 3 of Land Revenue Act and as such order dated 26-3-1996 is void, ab initio, without jurisdiction and as such is not operative against the respondents rights. Reliance is placed on Pervaiz Ahmed Khan Burki and 3 others v. Assistant Commissioner Lahore Cantt., and 2 others (PLD 1999 Lahore 31), Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue) Kharian, District Gujrat and 6 others (2005 MLD 814). Further submits that void order could not sustain in the eye of law. The order dated 26-3-1996 is without jurisdiction and as such that is in-operative against the petitioner's rights. Further submits that there is no limitation applicable against a void order. He relied on Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818). Learned counsel submits that writ petition is not maintainable for the simple reason that impugned order is remand order and matter has to be decided by the trial Court. Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab Lahore and 5 others (PLD 1973 Lahore 495), Akbar Ali and 18 others v. Mukhtar Ahmed and 14 others (2007 CLC 708), Muhammad Ilyas Khan v. Muhammad and others (1986 SCMR 251). Lastly adds that principle of res judicata will not apply as both the plaints have been rejected under Order VII Rule 11, C.P.C.

5. It is an admitted fact between the parties that petitioner as well as respondents Nos.2 to 4 are co-sharer in the property in dispute. It is also an admitted fact that order of partition is ex parte and 'Wandas ' were prepared on 26-3-1996 under an ex parte order. The respondents filed an application for setting aside the ex parte order which was dismissed. The respondents filed two suits for setting aside the ex parte partition order, both the plaints were rejected. While rejecting the plaint learned trial Court held as under:-- "In fact the plaintiff has challenged the validity of order dated 26-3-1996 passed by a competent Court of Law under the garb of present suit. No appeal has ever been preferred by the plaintiffs/respondents till date. When a matter has conclusively decided by a court of competent jurisdiction in which the parties were heard then the principle of res judicata is applicable and the plaint is hit by the principle of res judicata, therefore, the petition Order VII Rule 11, C.P.C. is accepted and plaint is rejected being barred by law." 6 The perusal of civil court's order shows that without recording the evidence the learned trial Court assumed that Tehsildar was competent for passing an order of partition whereas the main ground of respondents was that land in dispute is situated in 'Abadi Deh' and Tehsildar was not competent person to pass the order of partition. 7 It is an admitted fact between the parties that property is 'Abadi Deh' and is not an agriculture one. The only question require resolution is whether Tehsildar was competent to entertain the application of partition of land situated in 'Abadi Deh' or not? Under section 3 of West Pakistan Land Revenue Act, 1967, the Revenue Court has no power or jurisdiction to pass a partition order of land which is not agricultural land and is 'Abadi Deh'. For better appreciation of proposition of law section 3 is reproduced as under:-- "(3) Exclusion of certain land from operation of this Act.

(1) Except so far as many be necessary for the record, recovery and administration of village-cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land revenue. (2) It shall be lawful for the Collector acting under the general or special orders of the Board of Revenue, to determine, for the purposes of this Act, which lands are included within the site of a town or village and to fix and from time to time to vary the limits of the same, regard being had to all the subsisting rights of the land owners."

8. The perusal of this provision of law shows that important word is land. The word "land" has not been defined in the West Pakistan Land Revenue Act. This term, therefore, has to be construed according to the ordinary dictionary meaning. Under the Punjab Tenancy Act, 1877 "land" has been defined in the following terms:- "Land which is not occupied as the site of any building in a town or village and is occupied or has let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes the sites of buildings and other structures on such lands".

9. The term "land" under Land Reforms Regulations, 1972 means which is not occupied as the site of a town, village, factory or industrial establishment and is occupied or has been or can be let for agricultural purposes allied or subservient to agriculture and includes the sites of buildings and other structure on such land.

10. Section 2(3) of the Punjab Alienation Act defines the term "land" as under:-- "The expression land means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agricultural or for pasture and includes the sites of buildings and other structures on such land; a share in the profits of an estate or holding; any dues or any fixed percentage of the land revenue payable by an inferior land-owner to a superior land owner; a right to receive rent; any right to water enjoyed by the owner or occupier of land as such; any right of occupancy; all trees standing on such land."

11. From the perusal of above said provision of law the definition of agricultural land is its agricultural or pasture character.

12. As this is not dispute between the parties that land in dispute is not situated in 'Abadi Deh' and the parties are using the said land for residential purposes, the jurisdiction of Tehsildar with reference to its partition in terms of section 3 of West Pakistan Land Revenue Act, 1967 was barred this shows that original order dated 26-3-1996 passed by the Tehsildar was without jurisdiction. It is a settled principle of law that an order passed by a Court not competent to pass is a void order and against void order the bar of limitation is not applicable.

13. The other argument of learned counsel for respondents is that under section 24 of West Pakistan Land Revenue Act, 1967 the petitioners were not served. Section 24 of West Pakistan Land Revenue Act, 1967 is reproduced as under:-- "

24. Mode of service of summons.

(1) A summons issued by a Revenue Officer shall if practicable be served (a) personally on the person to whom it is addressed or, failing him, (b) on his authorized agent or (c) and adult male member of his family usually residing with him. (2) If service cannot be effected in the manner provided in subjection (1) or if acceptance of service is refused, the summons may be served by affixing a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or, if that person does not reside in the District in which the Revenue Officer is employed and the case to which the summons relates has reference to land in that District, the summons may be served by-- (a) sending it by post to the Collector of the District in which that person has his usual residence who shall cause it to be served in accordance with the provisions contained in subsection (1); and (b) affixing a copy of the summons on some conspicuous place in or near the estate wherein the land is situate. (3) If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may if the Revenue Officer so directs be served by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested. (4) A summons may, if the Revenue Officer so directs, be served on the person named therein, either in addition to, or in substitution for, any other mode of service by forwarding the summons by registered post to the person concerned. (5) When summons is forwarded as aforesaid the Revenue Officers may presume that the summons was served at the time when the letter would be delivered in the ordinary course of post."

14. The perusal of said provision of law shows that object of service of summons is that defendant should have notice of case against him and of the court in which he has to appear. If he is given the requisite information at a time when he is able to appear and defend the suit the service would be sufficient. For due service all that is required is that there should be substantial compliance with the provisions relating to service of summons. Due service of summons is a matter of such importance that the courts before deciding the service to be sufficient must be satisfied that all requirements of law have been strictly complied with. This is all the more necessary in a case where the service is not personal but substituted.

15. In the present case when petitioners filed an application for partition the Tehsildar passed the following order:--

16. The order passed by Tehsildar shows that he has not issued any summons for the service of respondents and straightaway on the date of hearing proclamation was issued in the newspaper for their service and as such it is a proven fact on record that respondents were not served, further it is not mentioned in any interim order that News paper management has provided postal certificate confirming that News paper has been delivered to the respondents. This shows that an ex parte order was managed by the petitioners only to avoid the respondents objection about the character of land. The Tehsildar has also failed to attend this aspect of case that land in dispute is situated in 'Abadi Deh' and the respondents as well as other co-sharers have constructed their houses on the said land.

17. As admittedly the property in dispute is situated within the urban limits of Multan and as such the original order dated 30-6-1996 passed by the Tehsildar is without jurisdiction and is void ab initio. The learned Member Board of Revenue after examining the file has rightly held that requirement of section 24 of West Pakistan Land Revenue Act 1967 has not been complied with and as such he rightly remanded the case to Tehsildar for re- deciding the same after hearing all the parties.

18. When the parties will appear before Tehsildar they will raise their respective objections qua the character of land and then Tehsildar will be in a better position to decide the dispute between the parties.

19. The order impugned in view of above said discussion is perfectly in accordance with law. Further by remanding the case to Tehsildar no prejudice has been caused to the petitioner. If as per claim of petitioner the land in dispute is the agricultural land Tehsildar will again pass the order on merits.

20. The upshot of above said discussion is that this petition fails and is dismissed with no order as to costs. M.H./R-7/L Petition dismissed.