2012 PLP 284 (CLC)

ABDUL WAHEED KHAN, J.

Against the sale of land measuring 53-Kanals, 1-Marla, described in para-1 of the plaint, situated in village Rajuvaal, Tehsil Kharian for consideration of Rs.7,00,000 vide Mutation No.1918 dated 28-7-2001 the petitioner/plaintiff filed a suit for possession through pre-emption which was contested by respondent No. l/ defendant by filing the written statement. During proceedings before the civil court, the legal heirs of respondent No.1/defendant filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on the grounds that there was a sale of occupancy rights and that it was not a sale of ownership rights. The said application was resisted by the petitioner and ultimately the civil court vide order dated 16-11-2005 dismissed the same. The order of the civil court was assailed in revision and the Additional District Judge, Kharian through the impugned judgment dated 15-6-2006 allowed the said petition as a result of which the plaint before the civil court was rejected, hence this petition.

2. The contentions of the counsel for the petitioner are that after the year 1952, sale of occupancy rights was a sale of ownership rights and not occupancy rights and that the revisional court was not competent, in exercising its revisional jurisdiction under' section 115, C.P.C., to pass the impugned judgment for rejection of the plaint, thus, the impugned judgment be set aside and the matter be remanded to the civil court for adjudication of the suit on merits.

3. Conversely, the contentions of the counsel for respondent No.1 are that' the mutation itself shows that it was a sale of occupancy rights and not transfer of ownership rights, therefore; the revisional court has rightly passed the impugned judgment and the same does not call for any interference.

4. Arguments of the counsel for the parties have been heard and record perused. The revisional court while passing the impugned judgment has observed as under:

"It is specifically stated that petitioner vide Mutation No.1918 dated 28-7-2001 is purchased from the occupancy tenants. Copy of impugned Mutation No.1918 is annexed with the file, where it' is specifically mentioned that occupancy rights in the suit property measuring 53 kanals, 1 marla are sold for consideration of Rs. 7,00,000 by occupancy tenants in favour of Ahmad Khan." It has further been observed that, "From the afore going discussion, it is evident that in the instant suit, mutation was sanctioned regarding occupancy rights, which are not pre-emptable. Though learned counsel for the respondent has stated that issues have been framed in this regard and learned trial court has observed that same will be decided after recording the evidence. In this regard, I am of the view that recording of the evidence would be a futile exercise because wording of Order VII, rule 11,. C.P.C. is clear and specific. . According to Order VII, Rule 11, C.P.C. if plaint does not disclose cause of action, same is liable to be rejected."

5. From the bare perusal of the aforementioned findings of the revisional court, It manifests that the plaint was rejected for the reasons that copy of the Mutation No.1918 shows that the occupancy rights were transferred and the same was not pre-emptable. The revisional court, merely by appreciating, the contents of the said mutation, appended with the plaint, formed its opinion and rejected the plaint. From the pleadings of the parties, the civil court settled as many as nine issues. Issue No.6 was framed about the controversy in hand and the same is reproduced hereinunder:

"Whether pre-emption has no effect on the "transfer of right of Moroosiat"? OPD"

6. In the circumstances, when the matter was contested by the parties before the civil court, where issues had already been settled, it was unjustified for the revisional court to appreciate the document itself, which had not yet been brought on record as a piece of evidence. The ,same was to be seen by the civil court and not by the revisional court that the sale was either that of transfer of occupancy rights or ownership rights.

7. The revisional court exercised beyond its jurisdiction while.rejecting the plaint itself. There is no denial to the fact that the suit was not entrusted to the Additional District Judge by the District Judge within the contemplation of section 24, C.P.C. The revisional court was entrusted the revision petition and thus it could not reject the plaint while exercising its revisional jurisdiction. The power to reject the plaint is vested. with the civil court and not the revisional court. The revisional court while passing the impugned judgment committed gross illegality and fell in error by allowing the revision filed by respondent No.1 /defendant.

8. Consequently, the impugned judgment dated 15-6-2006 passed by the Additional District Judge, Kharian is set aside. The application filed by respondent No.1/defendant for rejection of plaint is dismissed. The case is remanded to the civil court who shall proceed in the matter and decide the same on merits within six months from the date of receipt of a certified copy of this judgment.

9. With these observations and directions, this petition is accepted and disposed of in the above terms. S.A.K./M-332/L Case remanded.