2021 PLP 1141 (MLD)

ABDUL HAMEED BALOCH, J.

Through this judgment I intend to dispose of above tilted civil revision petition filed by the petitioners/ defendants against the judgment and decree dated 14th March, 2019 (impugned judgment and decree) passed by learned Senior Civil Judge, Sibi (trial court) whereby the suit of the respondent/plaintiff was decreed and against the judgment and decree (impugned judgment and decree) dated 19th April, 2019 passed by learned Additional District Judge-I, Sibi, (appellate court), whereby the appeal filed by the petitioners/defendants was dismissed.

2. Concise facts of the case were that the respondent/plaintiff filed a suit for declaration, partition, separation of possession and consequential relief against the petitioners/ defendants in respect of joint agricultural land bearing khata khatooni No.1/2, Qita No.47 measuring 692 rods 01 pole situated at Mouza Talli Tehsil and District Sibi with following prayer: i. Declaration be made that the suit land is joint land of the parties. ii. Declaration be also made that the plaintiff is the joint owner of the suit land and has 1-1/2 share in the suit land. iii. Declaration be also made that the defendants Nos. 1 to 15 have no legal right to deny the partition of the suit land according to Revenue Record being joint owners and share holders. iv. Declaration be also made that the plaintiff is entitled to get suit land partitioned and put in separate possession of his share. v. As a consequential relief the defendant No. 16 is liable to be directed to make partition of suit land according to Revenue Record and the further the share of plaintiff be entered in the Revenue Record. vi. Any other relief being fit and proper may also be awarded.

3. The petitioners/defendants contested the suit on legal as well as factual grounds by filing written statements.

4. The learned trial court framed following four issues: i. Whether this court has got jurisdiction over the matter in hand? ii. Whether the disputed property has already been partitioned among the share holders? iii. Whether plaintiff is entitled for the relief claimed for? iv. Relief?

5. Initially on application of petitioners/defendants under Order VII, Rule 11, C.P.C., the suit of the respondent/plaintiff was returned under Order VII, Rule 10, C.P.C., for filing the same before Revenue Court vide order and decree dated 28th April, 2016, against which the respondent/plaintiff filed appeal before District Judge, Sibi, who vide order and decree dated 19th January, 2017 set aside the order and decree of the trial court and remanded the matter to the trial court with direction to frame proper issues arising out of the pleadings of the parties and record evidence of the parties and thereafter, decide the same on merit in accordance with law.

6. The parties to the lis produced their respective evidence, whereafter, the learned trial court heard arguments of the parties and decreed the suit of the respondent/plaintiff vide judgment and decree dated 14th March, 2019. Being aggrieved the petitioners/ defendants preferred appeal before District Judge, Sibi, which was transferred to the files of learned Additional District Judge-I, Quetta. The learned appellate court vide judgment and decree dated 19th April, 2019 dismissed the appeal, hence the petitioners/defendants are before this court.

7. Heard and perused the record. The dispute between the parties pertains to partition of joint agricultural land entered in the record of rights in the names of the parties. The respondent/ plaintiff filed an application to Tehsildar/Assistant Collector for partition, but due to non attendance of petitioners/defendants the Tehsildar/ Assistant Collector directed to approach civil court. It would be appropriate to reproduce Section 135 of the West Pakistan Land Revenue Act, 1967 (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 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 acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.

8. Admittedly Khata/Khatooni No.1/2, Qita 47, measuring/ 692 rods 01 pole is still in the name of contesting parties to the suit. Under Section 135 of the Act 1967, the partition of joint agricultural land is exclusive jurisdiction of Revenue Authority. Under subsection (1) of Section 172 of the Act 1967 in cases where the Board of Revenue or any officer take cognizance of the matter the civil court has no jurisdiction to dispose off such cases. Though under Section 9 of the Code of Civil Procedure (CPC) civil court has jurisdiction to try all civil cases except either expressly or impliedly barred. Under the above referred provision of the Act 1967 the jurisdiction of civil court is ousted in partition proceeding. The Honorable Supreme Court of Pakistan in case Qamar Sultan v. Mst. Bibi Sufaidan 2012 SCMR 695 held: "

10. 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 .."

9. The suit property required to be partitioned as jointly owned by the parties. The Revenue Authority while adopting the mode' of partition under Section 135 of the Act 1967 described the procedure. When any party interested in partition of his/their share in the joint landed property has to approach the Revenue Authority. The Revenue Authority is fully empowered to effect partition for which the party applied. Reliance is placed on the case of Jamaluddin v. Haji Gul Khan 2012 CLC 1353, in which it was held: "

Furthermore, sections 135 and 141 of the Act, 1967 are not to be read in isolation, but they are to be read together. In view of the same the matters pertaining to partition of landed property exclusively vests with Revenue Officer. Therefore, complete bar on jurisdiction of civil courts, as provided in section 172 of the Act, 1967 will be in the way. Subsection (1) of section 172 of the Act, 1967 generally excluded the jurisdiction of civil courts from the matters in which the Government, Board of Revenue, or Revenue Officer is empowered by the Act, 1967 to dispose of or to take cognizance of a matter while exercising powers under the Act. But subsection (2) clause (xviii) specifically excludes the jurisdiction, which reads as under:-- "Section 172(2)(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 trial court without giving a serious thought to the relevant provisions of law, summarily concluded that in case of denial of title the civil court has jurisdiction in the matter. Though a declaratory suit can be filed for establishment of title under section 53 of the Act, 1967, but all these sections are not to be read in isolation, rather in presence of specific provision the general law will not prevail. In view of above discussion, the question of title during course of partition can only be decided by a civil court under the provisions of section 145 of the Act, 1967, otherwise it lacks jurisdiction in the matter. Keeping in view the legal aspect the facts of instant case are to be considered. Admittedly in present case none of the parties approached the Revenue Officer for the purpose, as no application to the effect was moved. Therefore, in view of the facts the trial court had no jurisdiction, therefore, the findings given on merits of the case are of no legal effect, therefore, liable to be set aside. It is further observed that though through suit partition of the land was sought, which was allowed by the trial court with a direction to the concerned Authorities for effecting the partition. But the trial court failed to take notice of the fact that the concerned authorities were not party to the suit, and in absence thereof what would be the legal sanctity of the order/decree so made?"

10. The respondent/plaintiff filed application which was not decided by Tehsildar/Assistant Collector Sibi and directed the respondent / plaintiff to approach civil court which is not according to law. The partition of joint agricultural property is exclusive jurisdiction of revenue officer. The revenue officer is bound to act as per Land Revenue Act, 1967. The reason mentioned in the order by the Assistant Collector Sibi is mockery with law. If a party willfully failed to appear in partition proceeding the revenue officer could not wait for him/them, but act under the law and proceed with the partition proceeding. In view of the above the judgment and decree dated 14th March, 2019 passed by learned Senior Civil Jude, Sibi and judgment and decree dated 19th April, 2019 passed by learned Additional District Judge-I Sibi, are set aside. The suit filed by the respondent/plaintiff is hereby dismissed for want of jurisdiction. However, the respondent/ plaintiff is at liberty to approach the Tehsildar/Assistant Collector for partition. However, the revenue authority is directed that if the respondent/plaintiff approach for partition the same should be decided expeditiously within a period of two months. The parties are left to bear their own costs. MQ/259/Bal. Order accordingly.