P L D 1954 Lahore 606 (PLP)

AKHLAQUE HUSAIN, J.‑The plaintiff‑appellant came to Court on the allegations that he and his three brothers, the defendant‑respondents Nos. 5 to 7, were owners of one fourth share in the property in dispute; the defendant respondents Nos. 1 to 4 owned another one‑fourth share and the remaining half belonged to defendants Nos. 5 to

7. In the beginning of 1950 the defendant No. 1 applied for partition of the property. The matter was referred for investigation to the Naib Tahsildar. Lodhram, who appointed arbitrators under section 127 of the Punjab Land Revenue Act. When the award was received it was forwarded by the Naib Tahsildar along with his report to E. A. C. O. who on the 20th of Decem ber 1950 accepted the mode of partition recommended by the former. The Assistant Collector accepted the partition on the 26th of April 1951. It is the case of the plaintiff‑appellant that on the receipt of the award the Naib Tahsildar did not fix, as required by section 134 of the Punjab Land Revenue Act, any date for the consideration of the award, nor was any notice given to him at any subsequent stage by the E. A. C. O. or the Assistant Collector, and that the partition was accepted behind his back without any notice to him. The plaintiff in this suit asks for declaration that the said arbitration award and the partition mutation are null and void against him on account of the misconduct of the arbitrators and partisanship on the part of the revenue officers concerned; and that, as before, he is still a co‑sharer in the property in dispute. An injunction restraining the defendants from interfering with the plaintiffs joint possession was also asked. The learned Senior Civil Judge, Multan, dismissed the suit on the 3rd November 1952 and the plaintiff has come up to this Court in appeal against his judgment and decree. Unfortunately the pleadings in this case are not happily drawn up, but there is no manner of doubt that the plaintiff's substantial allegation and grievance is that the partition proceedings were null and void for want of notice to him at certain material times and on account of collusion, amounting to fraud, between the revenue officers concerned and the respondents. Two issues were framed, namely (1) "Whether the suit is cognisable by the Civil Court ? and (2) Whether the award and the subsequent order of the revenue officer are not binding on the plaintiff and what is its effect?" The lower Court, without enquiring into the facts upon which the plaintiff's allegations were based, decided the first issue in the negative on the sole ground that a suit challenging a parti tion effected by a revenue officer on the ground of irregularities committed before him is not cognisable by a Civil Court. The learned judge completely failed to notice that the allegations of the plaintiff if true would render the entire partition proceedings a nullity. Proceedings held in contravention of elementary principles of natural justice or of the funda mental principles of judicial procedure are no proceedings at all in the eye of law, and the Civil Courts have jurisdiction to examine them. This proposition has never been doubted in any manner and is the very foundation of all administration of Justice vide Smith v. Queen (LR (1878) 3 AC 614 (2) AIR 1940 PC 105), Secretary of State v. Mask & Co. (PLD 1947 PC 317 = AIR 1948 PC 33) and Muhammad Din v. Imam Din (3). It is another s elemgntary principle of law that fraud vitiates the most solemn acts whether they are of individuals or of Courts. It was conceded before us by the learned counsel for the respondents that the Naib Tahsildar did not give any notice to the appellant after the receipt by him of the arbitrator's award, and that neither the E. A. C. O. nor the Assistant Collector gave any notice to him for the subsequent proceedings before them. He, however, contended that rule 18'11 in Chapter 18 of the Land Record Manual, which requires giving notice to the parties after the receipt of the report of the investigating officer, is not a statutory rule and is no more than a mere direction issued by the Financial Commis sioner to the subordinate revenue authorities. Even if no rule regarding notice, statutory or otherwise, had been framed the position would not be different. The exercise of his jurisdiction by the revenue officer or, for the matter of that by any Court, would still be dependent upon a meticulous observance of the elementary principles of natural justice and the fundamental principles of judicial procedure. The rule in question served the useful purpose of pointedly drawing the attention of the revenue officers to these principles. The only other point argued before us by the learned counsel for the respondents was that subsection (1) of section 118 of the Punjab Land Revenue Act does not make it obligatory upon a revenue officer to give notice. That subsection runs as follows :‑ "118. (1) when there is a question as to the property to be divided or the mode of making a partition, the Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and reasons for the decision." The argument is specious but without substance. There is nothing in the language of this section to show that an enquiry which has been carried on at the back of one party, or is vitiated by fraud, can be treated as an "enquiry" within the meaning of that section. For the above reasons we allow this appeal and set aside the judgment and decree of the lower Court and remand the case to it for decision according to law after investigating into the facts relating to the allegations of fraud and the absence of notice. Costs of this appeal will abide the result of the suit. The parties are directed to appear before the lower Court on the 21st June 1954. A. H. Case remanded