2014 PLP 2130 (YLR)

IKRAM ULLAH KHAN J.

Through the instant Civil Revision, petitioner has impugned the judgment dated 17-9-2008 of the learned Additional District Judge, Tangi, Charsadda, whereby the judgment dated 30-10-2007, of the Civil Judge, Tangi, was upheld and consequently the appeal of the petitioner was dismissed.

2. Facts, giving rise to the instant revision as briefly stated are that that the respondents brought a declaratory suit against the petitioner, therebefore the learned Civil Judge, Tangi, wherein challenged the possession of the petitioner over the suit property, to the extent of his legal shares and also prayed therefor, possession of the suit-land, duly scheduled therein the head note of the plaint.

3. The petitioner, accordingly contested the suit, whereas, submitted its written statement.

4. The learned Trial Court, therefrom the divergent pleadings of the parties, casted the respective issues, but in the meanwhile, the petitioner, moved therein, an application thereunder Order VII, Rule 11 of C.P.C., for rejection of the plaint, on the ground of the matter being adjudicated upon there before the Revenue hierarchy. The learned Trial Court dismissed the aforestated application, while on appeal the learned Additional District Judge, Tangi, upheld the judgment of the learned Civil Judge, hence the instant Revision Petition.

5. The learned counsel who made appearance on behalf of the petitioner, made submission that, the subject-matter of dispute has already been resolved by the Revenue hierarchy, being in their exclusive jurisdiction, thereunder the provisions of Land Revenue Act, contained in section 172(vi) and Civil Court has got no jurisdiction over the dispute. But both the learned lower Courts, misconstrued the law on the subject, whereby assumed jurisdiction not vested in the Civil Court. Further contended that Section 9 of the C.P.C., exclude the jurisdiction of Civil Court, in a matter which is either expressly or impliedly bars the jurisdiction of Civil Court there over the subject-matter of the suit.

6. On the other hand, the learned counsel on behalf of the respondents, seriously raised objection over the maintainability of the instant Civil Revision, contended that no appeal is provided thereunder section 104 read with order XLIII of C.P.C., against the rejection of an application, preferred thereunder Order VII, Rule 11 of C.P.C. Also argued, that the subject-matter of the suit has never been finally adjudicated by the Revenue Courts, while the provisions contained thereunder section 53 of the Land Revenue Act conferred rights upon the respondents to approach the Civil Court for redressal of its grievance.

7. I anxiously considered the arguments and carefully gone through the record with the able assistance of the learned counsel.

8. It is unrebutted fact that the respondents motivated their grievance pertains to correction of khasra Girdawari, before the Revenue authorities thereunder the provisions of Land Revenue Act and when, found themselves not satisfied therefrom the orders of the Revenue hierarchy, instituted a declaratory suit before the Civil Court, there under the provisions of section 53 of the Land Revenue Act.

9. The subject-matter as deducible from the averment, contained therein the pleadings of the parties, pertained to dispute of ownership over the suit property. The first round of litigation between the parties, therein the Revenue Authorities was in regard to the correction of Khasra Girdawri, but when during course of litigation thereover, before the Revenue authorities, when the question of ownership was agitated by the petitioner, the Revenue authorities withdrew their hands further to proceed into the matter and respondent was directed to seek its remedy before the Civil Court.

10. The provisions contained thereunder subsection (1), of section 172 of the Land Revenue Act reads as:-- "172(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 matter in which the Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act. (2) (i). 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:-- (v) the framing of a record of right or periodical records, or the preparation, signing or attestation of any of the documents included in such a record. (vi) the correction of any entry in a record of Rights, periodical rights or register of mutations. Record of rights is well-defined thereunder section 39 of the Land Revenue Act, 1967, which includes Khasra Girdawari.

11. Simple question pertainable to correction of undisputed entries falls within the jurisdiction of the Revenue authorities, as envisaged thereunder item (vi) of section 172 of the Land Revenue Act, but complicated and intrinsic, question of dispute whereas such entries interfere with the rights of a person in that land, record of rights and such person feels aggrieved by correction of such entries, he has to approach the Civil Courts for declaration under section 53 of the Act. Reliance be placed in this regard on the judgment of the Apex Court, delivered thereof in case of Rastamal Khan v. Nabi Sarwar Khan (1996/SCMR 78).

12. The provisions contained therein section 53 of the Act reads as:-- "if any person considers himself aggrieved by entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for declaration of his right under chapter VI of the Specific Relief Act, 1877."

13. Section 172 of the Act, applies to a person aggrieved by some entry in record of rights, but would not apply to a suit questioning order of cancellation of an entry. Mst. Bano alias Gul Bano v. Begum Dilshad Alam (2011 CLC 88).

14. As, it is very much clear from the pleadings of both the parties, that the subject-matter of dispute between the parties are not simple question of correction of entries thereto the Record of Rights but undoubtedly, pertains to the claim of ownership, alleged by both the parties thereto the suit, over the disputed property, certainly a matter, falls within the exclusive jurisdiction of the Civil Court, vested with such jurisdiction thereunder the provisions contained in section 9 of C.P.C. Rule 1 of Order XLIII of C.P.C. or section 104 of C.P.C. does not classify an order dismissing an application filed thereunder Rule 11 of Order VII, C.P.C. as an appealable order, but the petitioner instead of filing a revision petition, against the judgment of the learned Civil Judge, whereby the application filed thereunder Rule 11 of Order VII, C.P.C. when dismissed, assailed the said impugned judgment/order through filing an appeal before the learned Additional District Judge, Tangi, which could not be filed, however the learned lower Appellate Court did not notice such illegality and decided the matter, which shall be treated as a Revision petition, and as such no second revision could be filed before this Court. The instant revision petition is not maintainable as the petitioner has already been availed an opportunity of revision, though in pattern of an appeal before the learned Lower Court of Additional District Judge, Tangi. No any patent illegality or irregularity, has been pointed out by the learned counsel for petitioner, therein the impugned judgment, therefore, keeping in view the above mentioned reasons, this Civil Revision is accordingly dismissed being devoid of merit and non-maintainable too. AG/127/P Revision dismissed.