2012 C L C 1353
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
JAMALUDDIN and 3 others ----Appellants
Versus
Haji GUL KHAN and 6 others ----Respondents
Civil Miscellaneous Appeal No.14 of 2010, decided on 27th March, 2012.
West Pakistan Land Revenue Act (XVII of 1967) ---
----Ss. 135, 141 & 172 ---Suit for partition ---Shamilat land ---Jurisdiction of civil court ---
Plaintiffs who claimed themselves to be joi nt owners of suit -land filed suit in representative
capacity, praying that suit -land be declared as joint property and be partitioned between the
joint owners; so that they could be able to get their respective shares ---Defendants resisted
the suit claimin g that from the last twenty years they were in possession of 1/4th of the suit -
land, which devolved on them as their share during course of private partition ---Defendants
raised objection with regard to jurisdiction of the civil court to decide the matter ---Plaintiff
claimed relief of partition, but the parties were asserted to be the shareholders with no denial
of title ---Suit property which was shown to be jointly owned, not only by the parties to the
suit, but by other shareholders was Shamilat ---Relief of partition, in view of pleadings of the
parties, could only be granted while adopting the mode and observing the procedure as
provided in West Pakistan Land Revenue Act, 1967 ---Party interested in partition of his share
in suit property, had to make an a pplication for partition of the land to a Revenue Officer as
per provisions of S.135 of West Pakistan Land Revenue Act, 1967 ---Section 141 of West
Pakistan Land Revenue Act, 1967 had described the procedure for disposal of the questions
as to the title in the property ---Matters pertaining to partition of landed property, exclusively
vested with Revenue Officer, in circumstances; and complete bar on jurisdiction of civil
courts as provided in S.172 of West Pakistan Land Revenue Act, 1967 would be in the way ---
Question of title during course of partition, could only be decided by a civil court under
provisions of S.145 of West Pakistan Land Revenue Act, 1967, otherwise it lacked
jurisdiction in the matter ---Trial/civil court, in circumstances had no jurisdicti on in the
matter ---Judgment and decree passed by Majlis -e-Shoora/Trial Court, having no legal
effect, were set aside and suit filed by the plaintiffs was dismissed.
Ghulam Hussain v. Khan Muhammad PLD 1954 Lah. 655 ref.
Manzoor Ahmed Rehmani fo r Petitioners.
Asadullah Khan for Respondents.
Date of hearing: 16th November, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The appellants, being aggrieved of the judgment
dated 14th June, 2010 of Majlis -e-Shoora, Barkhan at Loralai, whereby the suit filed by the
respondents was decreed for effecting partition as prayed for, filed instant appeal. The
appellants challenged the decree while asserting that there was complete failure on part of the
trial court to consider the version of the respondent s/plaintiffs, and the legal proposition that a
suit in representative capacity in matter in hand is not maintainable. Further, the court of
Majlis -e-Shoora have no power to try a suit filed under representative capacity. Furthermore,
the objection pertaini ng to maintainability of the suit by non -joinder of Revenue authorities
being the necessary party, was not given due consideration. In addition the fact that the
plaintiffs/respondents with mala fide intention did not make the Revenue authorities party to
the suit just to bring the matter in issue within the jurisdiction of Majlis -e-Shoora was
overlooked. It was contended that the trial court ignored these legal aspects of the case, and
made an order, which is in contravention of law, thus not sustainable. The petitioners further
contended that the evidence available on record was not properly appreciated, while there are
instances of non -reading of the evidence. Furthermore, the Report of Local Commissioner
was considered without deciding the objections rai sed by them (appellants). Furthermore the
court -fee was not properly assessed. Further, the respondents were out of possession,
therefore, they were bound to file requisite court -fee for relief of possession. But the issue to
the effect was not properly de cided. Furthermore, the question of limitation also needs
consideration, because the mutual partition of the suit property was held twenty (20) years
back, but the trial court failed to record proper findings to the effect. It was contended that
due to the facts the judgment of the trial court is non -speaking, and ambiguous, therefore, not
sustainable. It has been prayed that the impugned judgment be set aside, and the suit filed by
the respondents/plaintiffs be dismissed.
2. Brief facts of the case are t hat a suit in representative capacity was filed by present
respondents/plaintiffs with contention that they being shareholders of land situated in Mouza
Olyani, Halqa Baqoo, Tehsil Barkhan, bearing Khasra Nos.43, 59, 214, 378, four pieces,
measuring 90 rod s 30 poles, Khata No.26, Khatooni No.35 and are in possession of the same.
It was further their case that from last one year the defendants/ present appellants started
interfering, and cultivating the land in question. In the suit it was prayer of the plai ntiffs/
respondents that: --
3. The present appellants/defendants in their joint reply raised plea that from the last
twenty (20) years they were in possession of 1/4th of Khasra No.378, which devolved on
them as their share during course of partition. It was further their plea that the land bearing
Khasra Nos.43, 59 and 214 were in fact non -existent. It was further their plea that the land
privately partitioned, and devolved on Wadera Nawaz, Mohiuddin, Gul Khan (plaintiff No.1)
and Lal, and all of them we re in possession of their respective shares, and cultivated the
same.. The appellants/defendants raised several legal objections pertaining to the jurisdiction
of the court, suit being time -barred, non -maintainability of the representative suit, and non -
specification of the respective shares of the parties in suit property. The trial court framed
issues on 12th October, 2009, while it appears that issues were framed on 15th December,
2009, but this fact is not mentioned in the judgment of the trial court, because findings were
given by the court below on issues framed earlier in time. The evidence of the parties were
called. Whereupon the respondents/plaintiffs produced five witnesses, and plaintiff No.1 Gul
Khan recorded his statement for himself, and as a ttorney of the remaining respondents. While
in rebuttal the appellants/defendants also produced five witnesses, and defendant
No.2/petitioner No.2 Ghulam Mohiuddin recorded his statement for himself, and on behalf of
the remaining petitioners. It is also a pparent that during course of trial Commission was
appointed for local inspection of the site. Report was submitted, while the
Commissioner was called, and the parties were allowed to cross -examine him. The trial court
through judgment d ated 14th June, 2006 decreed the suit in terms: ---
Through instant appeal this judgment has been challenged.
4. The learned counsel for the parties argued the matter at length. It was argument of the
learned counsel for the appellants that suit was def ective, only injunction, and partition was
sought without any relief of declaration of title, therefore, the suit was not maintainable. It
was further his argument that there was a specific objection pertaining to the jurisdiction of
the court, which was n ot properly decided, rather the findings arrived by the trial court was in
contravention of law, therefore, cannot remain in field. It was his contention that the trial
court lacks jurisdiction in the matter. The learned counsel referred to sections 135 an d 172 of
the Land Revenue Act, 1967 (hereinafter referred to Act 1967). It was further his argument
that the respondents/plaintiffs' claim and relief in their suit were without specifications,
therefore, on basis of such an ambiguous claim no relief can be granted. Further, the decree
passed in the instant case is also ambiguous, therefore, cannot able to be executed.
Furthermore, the trial court granted relief, which was not claimed in the suit, thereby
exceeded to the jurisdiction vested with it. He relie d on judgment in case titled as Ghulam
Hussain v. Khan Muhammad reported in PLD 1954 Lahore 655.
5. While replying to the arguments the learned counsel for the respondents urged
that there is no denial of the fact that the land in question is a Shamilat land, and all
the parties have their respective shares therein. It was further his argument that the
burden was on the appellants to establish their plea that in fact some private partition
was held between the shareholders, therefore, they (appellants) are in possession of their
respective shares. He relied on the Report of local inspection submitted by the Commission.
It was further his argument that except Khasra No.378 the remaining khasra numb ers are not
challenged. The learned counsel for the appellants while replying to the arguments only
stated that certain objections were raised on the Report of local inspection, which were
neither considered, nor decided by the trial court, therefore, no r eliance can be made on such
a report.
6. The respondents/ plaintiffs while claiming, themselves to be joint owners of land
bearing Khasra Nos.43, 59, 214 and 375, measuring 90 rods 30 poles, Khata No 26, Khatooni
No.35 situated at Monza Molyani Halqa Baq uo, Tehsil and District Barkhan made prayer that
the land in question be declared as joint property, and be partitioned between the joint
owners, so that they may be able to get their respective shares. The relief of injunction was to
the effect that the d efendants/present appellants be restrained from making interference in the
suit-land, or cultivating it until partition is effected between the parties. While in reply the
appellants/defendants only restricted their claim to the land bearing Khasra No.378, and
claimed to be in possession of 1/4th of the land bearing Khasra No.378, which devolved on
them through private partition, which was effected twenty (20) years back. It was also their
contention, that this partition was effected between the shareholder s, which were named as
Wadera Nawaz, Mohiuddin (appellant No.2), Gul Khan (respondent No.1), and Lal
(predecessor in interest of appellants Nos.3 and 4). Without going into the factual aspect of
the case the issue which requires consideration at first inst ance is jurisdiction of the court.
There was an specific objection pertaining to the effect, and issue No.6 framed on 12th
October, 2009, and Issue No.1 re -framed on 15th December, 2009, were to the same effect.
But the trial court first decided the issues pertaining to the merits of the case, thereafter,
discussed the issue pertaining to the jurisdiction of the court, and thereby assessed that: ---
Though it is a legal proposition that the Revenue courts lack jurisdiction in the matters
whereby title of t he parties is to be determined. Rather in respect of disputes pertaining to
title of a landed property, only civil courts have jurisdiction to make decision to the effect.
Declaration of title can only be made by a court of competent jurisdiction. But in p resent case
the matter in hand is distinguishable, because the relief of partition though had been claimed,
but the parties are asserted to be the shareholders with no denial of title. Therefore, the
relevant provisions are to be considered, whereby it is to be assessed that whether civil court
has jurisdiction in the matter or otherwise?
7. In present case a land is required to be partitioned, which is shown to be jointly
owned not only by the parties, but there are other shareholders, because in the rev enue record
the suit -land is entered as Shamilat ( ) being jointly owned by several persons including
the parties to the suit. In view of pleadings of the parties the relief of partition can only be
granted while adopting the mode, and observing the procedure as provided in the Act, 1967.
Section 135 to section 150 of the Act, 1967 describes the procedure, which is to be observed
by the concerned parties, and also by the Revenue Officer while conducting proceedings for
partition of land. Therefore, p arty interested in partition of his share in landed property has to
make an application for partition of the land to a Revenue Officer, as per provisions of
section 135 of the Act, 1967. The preceding sections specified the procedure; how the matter
is to he dealt with. The Revenue Officer is fully empowered to effect partition of land, for
which a party has applied. While section 141 of the Act, 1967 describes the procedure for
disposal of the questions as to title in the property, which is to be divided. Section 141 of the
Act 1967 reads as under:
"141 Disposal of questions as to title in the property to be divided. --- (1) When there is a
question as to title in any properly of which partition is sought, the Revenue Officer may
decline to grant the appli cation for partition until the question has been determined by a
competent court, or he may himself proceed to determine the question as though he were such
a Court.
(2) Where the Revenue Officer does not himself proceed to determine the question of titl e
as a Civil Court, for reasons to be recorded by him in this behalf, require a party specified by
him to file a suit in a Civil Court, within such period not exceeding ninety days from the date
of his order as he may fix, for obtaining decision regarding the question.
(3) On the filing of a civil suit by the party required so to do within the specified period,
the Revenue Officer shall suspend further action on the application for partition till the said
civil suit is decided by the Court and a copy of t he Court's order is produced before him.
(4) In case the party so required fails to file a suit within the specified period, the
Revenue Officer may proceed with the partition and decide the question of title himself.
(5) Where the Revenue Officer hims elf proceeds to determine the question, the following
rules shall apply, namely: ---
(a) If the question is one over which a Revenue Court has jurisdiction, the Revenue
Officer shall proceed as a Revenue Court under the law for the time being in force.
(b) If the question is one over which a civil Court has jurisdiction, the procedure of the
Revenue Officer shall be that applicable to trial of an original suit by a Civil Court, and he
shall record a judgment and a decree containing the particulars requir ed by the Code of Civil
Procedure, 1908 Act (V of 1908), to be specified therein.
(c) An appeal shall lie from the decree of the Revenue Officer under clause (b) as though
that decree were a decree of a Civil Judge in an original suit.
(d) Upon such an appeal being made, the District Court or the High Court, as the case
may be, may issue an injunction to the Revenue Officer requiring him to stay proceedings
pending the disposal of the appeal.
(e) From the appellate decree of a District Court upon such an appeal, a further appeal
shall lie to the High Court, if such further appeal is allowed by the law for the time being
in force."
Keeping in view section 141 of the Act, 1967, a complete procedure is provided for
determination of title of th e parties applying for partition. Subsection (2) of the section
empowers the Revenue Officer with a discretion either to get determine the question of title
by a civil court, but he is fully empowered to determine the same as provided in subsection
(5) of the section. The trial court though referred to sections 135 and 141 of the Act, 1967,
but failed to dilate the relevant provisions, and arrived to a conclusion, which is in
contravention of both the provisions. Furthermore, Clause (b) of section 135 of th e Act, 1967
will also not be applicable in the matter. Because, the application of it will be in cases where
the parties have already obtained a decree, whereby their shares had been established, and
partition had been sought on basis of the same. Furtherm ore, 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 juri sdiction 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 Reve nue 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 se rious 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 provis ions 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 purp ose, 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?
8. In view of the above discussion, the appeal is hereby accepted. The judgment and
decree dated 14th June, 2010 of Majlis -e-Shoora, Barkhan at Lo ralai is of no legal effect,
therefore, set aside. The trial court has no jurisdiction in the matter; therefore, the suit filed by
the respondents/plaintiffs is hereby dismissed for want of jurisdiction. Decree sheet be drawn.
The parties are left to bea r their own costs.
H.B.T./30/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.