2019 PLP 1343 (CLC)

ATIR MAHMOOD J.

Through this appeal appellant has challenged the judgment and decree dated 19.12.2016 passed by learned Additional District Judge, Gujranwala, whereby, appeal filed by the respondents was allowed.

2. Precisely, the facts of the case are that appellant/plaintiff filed a suit for declaration, partition and possession with permanent injunction against the respondents before learned Civil Judge, Gujranwala, alleging therein, that the appellant and respondents are co-sharers in the disputed property measuring 99-Kanals, 10-Marlas bearing khewat No.10, Khatooni Nos.22-28, qitat 18 situated at Ladhewala Goraya, District Gujranwala vide registered Haqdaran Zameen for the year 2007-08; that respondents are cultivating crops on the disputed land as well as illegally raising the construction over it and on request to restrain from this act, they refused to do so, hence, the present appellant filed the suit. The suit was resisted by the respondents. Out of the divergent pleadings of the parties, issues were framed. Thereafter, evidence from both the parties was called for which was adduced and recorded, accordingly. After hearing the arguments, learned trial Court vide judgment and decree dated 07.10.2015 decreed the suit. Feeling dissatisfied, respondents assailed this judgment and decree before learned lower appellate Court while filing an appeal which was accepted vide impugned judgment and decree dated 19.12.2016 and suit was dismissed. Hence, this appeal has been filed.

3. It is contended by the learned counsel for the appellant that impugned judgment and decree passed by learned lower appellate Court is the result of misreading and non-reading of evidence available on the record; that the learned lower appellate Court has committed illegality and material irregularity while passing the impugned judgment and decree; that the respondent No.13 has admitted in his written statement that there are illegal occupants in the disputed suit land, therefore, same could not be partitioned, however, this important aspect of the case has been overlooked by the learned lower appellate Court. Lastly, prayed for acceptance of this appeal and setting aside of impugned judgment and decree passed by learned Additional District Judge, Gujranwala.

4. On the other hand, learned counsel for the respondents has vehemently opposed this appeal and fully supported the impugned judgment and decree passed by learned lower appellate Court. He accordingly prays for dismissal of the instant appeal.

5. Arguments heard. Record perused.

6. There are two primary questions involved in this case which require determination: i) Whether the suit land is agricultural in nature, if yes, then, how the civil court has jurisdiction to adjudicate the matter. (ii) What type and extent of constructions on agricultural land do not exclude it from the purview of section 135 of the Punjab Land Revenue Act, 1967, for the purposes of partition proceedings?

7. Firstly, I come to the first question, that whether the suit land is agricultural land or not. In this regard, I perused the record available on the file wherein Jamanbandi for the year 2008 was exhibited as Ex.P-1 in which it is mentioned that whole Khewat is relating to land 99-Kanals, 10-Marlas and out of total said land, the land consisting of 93-Kanals and 19-Marlas is cultivable whereas only 5-Kanals, 11-Marlas is "Ghair Mumkan" (non-cultivable). Ex-P-2 which is Khasra Girdawri also shows that major part of land is cultivable. So, it is manifestly clear that the suit land is agricultural. It is settled law that the matter of partition of agricultural land falls within the exclusive domain of Revenue Officer and the jurisdiction of Civil Court, is barred under the law, therefore, a decree passed by a Civil Court relating to the partition of the agricultural land is without jurisdiction and nullity in the eye of law. In this regard, I am fortified with the judgment of august Supreme Court of Pakistan reported as "Qamar Sultan v. Mst. Bibi Sufaidan" (2012 SCMR 695), wherein it has been held that: "The proposition that when the relief vis-a-vis partition of an agricultural property lay within the jurisdiction of the Revenue Court, any decree passed by the Civil Court in this behalf is nullity in the eye of law, is no doubt correct, but in this case the Civil Court has not passed any such decree. Yes, no secondary evidence has been produced in the Court to prove the signature of the deceased on the application mentioned above but, to our mind that was not necessary, because it was a certified copy of the application thus moved. When considered in this background, we don't think the impugned finding can be said to have been based on misreading and non-reading of evidence or erroneous assumptions of law and facts. We, therefore, do not feel persuaded to grant leave in this case."

8. It would be advantageous to reproduce the sections 135 and 172 of the Punjab Land Revenue Act, 1967: "

135. Application for partition.- Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if- (a) at the date of the application the share is recorded under Chapter VI as belonging to him; or (b) his right to the share has been established by a decree which is still subsisting at the date; or (c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof." "

172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- (1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act. (2) Without prejudice to the generality of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters, namely:- (i) .. (ii) .. (iii) .. (iv) .. (v) .. (vi) .. (vii) .. (viii) .. (ix) .. (x) .. (xi) .. (xii) .. (xiii) .. (xiv) .. (xv) .. (xvi) .. (xvii) .. (xviii) any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought;" The bare reading of above quoted provisions of law makes it very much clear that section 135 of the Act ibid confers power upon a Revenue Officer to make partition of land, on application of any joint owner, whereas. Section 172 of the Act ibid excludes expressly jurisdiction of civil courts in any matter which the Government, Board of Revenue, or any Revenue Officer, is empowered by the Act to dispose of. Hence, in view of above provisions of law, there leaves no confusion to hold that a Civil Court has no jurisdiction to adjudicate upon a suit praying partition of agricultural land.

9. So far as the second question with regard to that what type and extent of constructions on agricultural land do not exclude it from the purview of section 135 of the Act, 1967, for the purposes of partition proceedings, is concerned, there is no any hard and fast rule in this regard, however, it is subject to the peculiar facts and circumstances of every case. However, guidance may be sought from the judgments of Apex Courts as well as of High Courts and from the definition of the term "land" given in section 2(3) of the Punjab Alienation of Land Act, 1900 which is re-produced hereinbelow for ready reference: Section-2: Definition (1) . (2) (3) 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 agriculture or for pasture, and includes- (a) the sites of buildings and other structures on such land; (b) a share in the profits of an estate or holding; (c) any dues or any fixed percentage of the land-revenue payable by an inferior landowner to a superior landowner; (d) a right to receive rent; (e) any right to water enjoyed by the owner or occupier of land as such; (f) any right of occupancy; and (g) all trees standing on such land," In view of above mentioned provision of law the term "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 agriculture or for pasture and further includes the above mentioned provisions of law i.e. 2(3)(a) to 2(3)(g). Whereas, in Section 3(1) of the Punjab Land Revenue Act, 1967 it has been stated that:

3. Exclusion of certain land from operation of this Act.

(1) Except so far as may be necessary for the record, recovery and administration of village cess, or for purposes for 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. Section 136(b) (iii) of the said Act provides that partition of any land which is occupied as the suit of a town or village, may be refused if, in the opinion of the Revenue Officer, the partition of such property is likely to cause inconvenience to the co-sharers or other persons directly or indirectly interest therein, or to diminish the utility thereof to those person. Plain reading of these enactments reveals that the expression "as the site of any building in a town or village" has been used in the Act of 1900 and the expression "as the site of a town or village" has been employed in the Act, 1967 which clearly shows the difference of both these expressions as in the first expression word "any building" has been used whereas in the second expression said words have been omitted which in my point of view has some rationale as it reflects that an agricultural land (not any building) which is occupied as the site of town or village still remains under the purview of the Act, 1967 unless and until it is not assessed to land revenue, however, agricultural land, viz, the agricultural land in a town or village, is built upon; the same comes out of the scope of the term "land" and quits from the purview of the Act of 1967. I would like to cite here the judgment of this Court in case titled "Muhammad Sadiq v. Abdul Aziz" (1990 CLC 1387) wherein it has been held that:

21. Reading the definitions of the expressions "land", "village immovable property" and "urban immovable property" together, in the light of the guidance to be gained from decided cases, it appears that the essence of the definition of agricultural land is its agricultural or pastural character. In order to determine whether the land is agricultural land, the definition prescribes two tests, one negative that is the property should not be occupied as the site of a building in town or village and the other positive that it should be occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture. Thus, if a land is occupied as the site of any building, the Court must approach the matter by asking itself objectively: (i) whether the locality where it is situate is a town or village; and (ii) whether it is occupied or let for agricultural purposes. If the answer to the first question be in the affirmative, then depending upon its' situation in a town or village, it is either urban or village immovable property; it is not agricultural land. But if it be land occupied or let for agricultural purposes, then the buildings on it are also agricultural land. If the land satisfies the test that it is a site of a building in a town or village, then it cannot be agricultural land and it appears to follow logically that in that case the second question would not arise. There may be difficulty in drawing the line between the two cases, but a judge of fact should be able to resolve the difficulty. As Lord Simonda said in 1954 A.C. 429, 445: .... I am not as a rule impressed by an argument about the difficulty of drawing the line since I remember the answer of a great Judge, that though he knew not when day ended and night began, he knew that mid-day was day and mid-night was night:'

22. There are many big bungalows and residential houses in the big cities such as Lahore and Faisalabad which have gardens and vacant lands attached to them; in those lands, sometimes crops are sown; but can it be reasonably predicated that such lands or gardens should be regarded as things apart from the bungalows or residential houses of which they form part. Even in some residential localities on The Mall, Lahore, there are houses in which vacant lands attached to them are sometimes used for crop sowing. Yet, they are occupied as the sites of the buildings to which they are attached, as much as the site actually under the building." The portion of said judgment as reproduced above manifestly determined the status of an agricultural land and extent of constructions on agriculture land.

10. In the present case, the appellant filed suit for declaration, partition and possession with permanent injunction against the respondents with regard to the land in dispute, wherein at paragraph No.4 of the plaint he mentioned as under: It is admitted by the appellant that the land is agricultural wherein the respondents have raised illegal construction of tubewell, daira, murgi khana and passage and remaining land is under cultivation by the respondents. The appellant in his examination in chief approximately taken the same stance, however, in place of "Abadi" he mentioned that some "Kothay" have been built. In his cross-examination he stated that there is no existence of poultry farm on the land and there are some houses on the said land. So, there is no any sound proof of Abadi at the disputed land which shows that the said land is not agricultural, rather the same is proved as cultivable. The learned lower appellate Court has rightly relied upon Section 3(2) of the Land Revenue Act, 1967 and held that appellant had not produced any notification of Collector, or special orders of Board of Revenue which show that the land in question has been included within the site of town and village, however, the documents produced by the appellant as Ex.P-1 and Ex.P-2 shows that major portion of disputed property as agricultural land and cultivable (mazrua). As stated above, the suit property being agricultural land comes under the exclusive jurisdiction of Revenue Court and the jurisdiction of Civil Court is barred in this regard.

11. From the above discussion, it can easily be observed that the learned lower appellate Court has passed the impugned judgment after properly evaluating the facts as well as available record. The said judgment is based on reasoning. No misreading or non-reading of evidence has been pointed out by the counsel for the appellant.

12. As a consequence of above discussion, this appeal is without any force which is accordingly dismissed. No order as to cost. SA/A-50/L Appeal dismissed.