2020 C L C 963
[Balochistan (Sibi Bench)]
Before Rozi Khan Barrech, J
ALLAH DINA and 21 others ----Petitioners
Versus
IKHTIAR KHAN and another ----Respondents
Civil Revision Petition No. (S)35 of 2015, decided on 6th December, 2019.
(a) Balochistan Land Revenue Act (XVII of 1967) ---
----Ss.135 & 172--- Suit for declaration, partition and perpetual injunction--- Partition of
immovable property--- Exclusion of jurisdiction of Civil Courts in matters within the
jurisdiction of Revenue Officers ---Scope ---Plaintiffs filed suit for declaration, partition and
perpetual injunction claiming therein that the suit land was shamilat, however, the defendant
had occupied the land in excess of his share ---Trial C ourt returned the plaint with direction
to file a petition before Revenue Court ---Appeal filed thereagainst was dismissed ---Validity --
-Party interested in partition of his share in immovable property had to make an application
for partition to a Revenue Of ficer under S. 135 of Balochistan Land Revenue Act, 1967---
Revenue Officer was fully empowered to effect partition ---Matters pertaining to partition of
immovable property were exclusively vested in the Revenue Officer ---Clause (xviii) of
subsection (2) of S.172, Balochistan Land Revenue Act, 1967 excluded the jurisdiction of civil courts from the matter connected with or arising out of proceedings for partition---Parties had already approached the Revenue Officer for partition of property and the matter was pending adjudication before Assistant Commissioner ---Civil Court had no jurisdiction to
entertain the suit ---Revision petition was dismissed.
(b) Balochistan Land Revenue Act (XVII of 1967) ---
----Ss. 141, 135 & 53--- Disposal of questions as to title in the property to be partitioned---
Application for partition ---Suit for declaratory decree by persons aggrieved by an entry in the
record ---Scope ---Section 141 of Balochistan Land Revenue Act, 1967 provides a complete
procedure for determination of title of the parties, applying for partition---Subsection (2) of S.141, Balochistan Land Revenue Act, 1967 empowers the Revenue Officer with a discretion either to get determined the question of title by a civil court or himself proceed with the partition, but he i s fully empowered to determine the issue as provided in subsection (5) of
S.141, Balochistan Land Revenue Act, 1967--- Clause (b) of S.135 of Balochistan Land
Revenue Act, 1967 will also not be applicable in the matter because it applies in cases where the parties have already obtained a decree, whereby their shares have been established, and
partition is sought on that basis ---Ss.135 and 141 of Balochistan Land Revenue Act, 1967 are
not to be read in isolation, but they are to be read together ---Declaratory suit can be filed for
establishment of title under S.53 of Balochistan Land Revenue Act, 1967 but in the presence
of specific provision in special law, the general law will not prevail.
Abdul Hadi Tareen for Petitioner.
Anwar -ul-Haq Chaudhry for Respon dents.
Shahid Baloch AAG for the State.
Date of hearing: 25th September, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .----This Civil Revision Petition in terms of section 115
of The Code of Civil Procedure (V of 1908) (hereinafter referred as (C.P.C.) arises out of
judgment dated 30.04.2015 (hereinafter "impugned judgment") passed by Additional District Judge -I, Sibi (hereinafter "the appellate court"), while dismissing the appeal filed by the
appellant upheld the judgment dated 19.03.2015 passed by the learned S enior Civil Judge,
Sibi.
2. Epitomized facts necessary for adjudication of instant petition are that the
petitioners/plaintiffs filed a suit for declaration, partition and perpetual injunction before the trial court against the respondents with the averment that the petitioners/plaintiffs are owners of Mouza Khushkaba Khajjak, Tehsil and District Sibi while the respondent No.1 is also
shareholder in the said Mouza under Khasra No.1017 Khewat No.332, Khatooni No. Min
356 (1353/Rod and 17/Pole). It is further contended in the plaint that the said land is
Shamilat lands of the mouza which is common land of all the landowners according to their
share while respondent No.1 has only 31/Rod and 23/Pole out of the 1353/Rod and 17/Pole, but he has occupied almost who le the Khasra No.1017. The respondent No.1 resisted the suit,
being defendant. While submitting his written statement he controverted the assertions contained in the plaint. From divergent pleadings of the contested parties following multiple issues were f ramed:
"1. Whether suit of plaintiff is liable to be rejected in view of PLOs?
A. That no cause of action has been accrued to the plaintiff.
B. That the suit is barred by time.
C. That the jurisdiction of this Court is barred because the matter is sub-judice before
the Court of Commissioner.
D. That the suit of plaintiff is under value?
2. Whether property in question has been partitioned amongst the parties and in the result of the same the property in question became in the share of defendant?
3. Whether plaintiffs are joint owners in the Khasra No.1017, village Khushkaba Khajak (Ghazi)?
4. Whether the plaintiffs are entitled for the relief claimed for?
5. Relief?"
After framing issues, parties to the suit produced their respective evidence and o n
completion of the same the suit of petitioners/plaintiffs was returned under Order VII, Rule
10, C.P.C. with direction to file the same before the revenue court vide judgment dated 19.03.2015 by the trial court. Being aggrieved from the judgment the peti tioners filed appeal
under Order XLIII, Rule 1, C.P.C. before Additional District Judge -I Sibi, which was
dismissed vide judgment dated 30.04.2015, hence this petition.
3. Learned counsel for petitioners argued that when a question of title is raised then a
civil Court gets ample powers to entertain a claim and decide it on merits despite the bar contained under the law; that the impugned orders passed by the courts below are against the law, facts and dictates of justice; that the trial court has not cons idered that respondent No.1
denied the ownership rights of petitioners and in this respect the trial court also framed an issue, therefore, there was no occasion for the trial court to have returned the suit filed by petitioners for want of jurisdiction; t hat in view of the fact that the evidence led by the
parties were not considered in true perspective the courts below are not justified in rendering the impugned orders/judgments. He lastly contended that since the courts below have misinterpreted the prov isions of Sections 135 and 172 of Land Revenue Act, 1967, therefore
the judgment passed by the court below are liable to be set aside.
4. Learned counsel for the respondent No.1 contended that there is no denial of the fact
that the land in question is a S hamilat land, and all the parties have their respective shares
therein; that the possession over the property in dispute was challenged before the Revenue authorities which matter is pending before the revenue hierarchy, as such the trial court has
rightly returned the suit filed by the petitioners for want of jurisdiction. He further contended
that dispute between the parties can only be determined in an undivided landed property by an order of a Revenue Officer for which the matter is already pending adju dication before the
revenue court, as such the trial court lacked jurisdiction.
The learned AAG also endorsed and relied upon the arguments advanced by learned
counsel for respondent No.1.
5. I have heard the learned counsel for the parties and perused the available record with
their assistance.
6. The claim of the petitioners is that they are owners of Mouza Khushkaba Khajjak,
Tehsil and District Sibi while the respondent No.1 is also shareholder in the said Mouza under Khasra No.1017 Khewat No.332, Khatooni No. Min 356 (1353/Rod and 17/Pole). It is further contended in the plaint that the said land is Shamilat lands of the mouza which is common land of all the landowners according to their share while respondent No.1 has only 31/Rod and 23/Pole out of the 1353/Rod and 17/Pole, but he has occupied almost whole the
Khasra No.1017. The petitioners also prayed in the suit that:
"In these circumstances it is prayed that the Honourable Court be pleased to pass a
decree in favour of the plaintiffs and against the defendant No.1 declaring that the
plaintiffs are the joint owners of the Shamilat Land Khasra No.1017 village Khushkaba Khajjak (Gazi) according to their shares and have a right to get the same partitioned through defendant No.2 and get their separate possession and consequently the defendant No.1 may kindly be restrained from causing interference
in the shares of the plaintiffs and not to exceed than his own share. The defendant
No.2 be ordered to partition the lands in question and put the parties in their specific
shares and the share in crops be also given to the plaintiffs till actual partition. The defendant No.1 be restrained perpetually from interfering in the Shamilat land Khasra No.1017 beyond his own share. Costs be also allowed in the interest of justice."
7. The claim of respondent No.1 is that on 10.10.2011 all the share holders of Mouza
Gazi Khushkaba Khajjak including the petitioners moved an application before the Assistant commissioner Sibi for partition of the properties and the said appl ication is pending
adjudication before the Revenue Authorities, wherein the petitioners intentionally are not appearing and the matter could not be decided till today.
8. The trial court discussed the issue pertaining to jurisdiction of the court and there by
assessed that:
"As per available evidence it is establish that the matter does not come in jurisdiction of this court therefore, the suit of plaintiff is returned under Order VII, Rule 10, C.P.C. to plaintiff to file the same before the Revenue Court. "
After perusal of the record and evidence of the parties the respondent No.1 brought on
record revenue record of Khasra No. 1017 as Ex.D/3- A through DW -3. It is further evident
from the revenue record of Khewat No.332 Khatooni No.356 that there are hundr eds of share
holders and share of each is specifically mentioned in Ex.D/3- A and name of respondent
No.1 and his brothers are inserted therein as share holders to the extent of 66- 2/3 shares.
Admittedly there are more than hundred share holders in Khewat N o.332 Khatooni No. 356
total 88 Khasras among those one Khasra is numbered as 1017. Shares of respondent No.1 in Khasra No. 1017 have not been denied by the petitioners and the petitioner only alleged that the respondent No.1 has occupied almost all lands of Khasra No. 1017. Attorney of petitioners in his cross -examination admitted that a case in respect of the land in dispute was
pending before the Commissioner. According to Ex.D/3- B wherein Naib Tehsildar Sibi
reported in respect of Khasra No.1017 a case in respect of the applicants is subjudice before
the competent court. Even the petitioners/plaintiffs also prayed in their plaint for partition of the suit land.
9. Though it is a legal proposition that the Revenue Courts lack jurisdiction in the
matters whereby title of the 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 a court of competent jurisdiction. But in
present 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?
10. 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 shareholde rs, because in the revenue record
the suit -land is entered as Shamilat being jointly owned by several persons including
the parties to the suit. It is also admitted fact of the case that the dispute between the parties
is pending for partition before the Assistant Commissioner Sibi. 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 proce dure, which is to be observed by the concerned parties, and also by the Revenue
Officer while conducting proceedings for partition of land. Therefore, party 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 be 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 application for partition until the question has been determined by a competent court, or he may h imself 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 title 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 spe cified
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 the Court's order is produced before him.
(4) In case the party so required fails to file a sui t within the specified period, the
Revenue Officer may proceed with the partition and decide the question of title himself.
(5) Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply, namely: -
(a) If the que stion 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 Of ficer 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 required by the Code of Civil Procedure, 1908 Act (V of 1908), to be specified therein.
(c) An appeal shal l 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 t o 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 f or the time
being in force."
11. Keeping in view section 141 of the Act, 1967, a complete procedure provided for
determination of title of the parties applying for partition subsection (2) of the section empowers the Revenue Officer with a discretion eithe r 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. Furthermore, Clause (b) of section 135 of the Act, 1967 will also not be applicable in the matter. Beca use, 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. 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;"
12. Though a declaratory suit can be filed for establishment of title under section 53 of
the Act, 1967, but a ll 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 provi sions 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 the parties have already approached the Revenue Officer for t he purpose, and matter is pending
before the Assistant Commissioner Sibi. Therefore, in view of the facts the trial court had no jurisdiction.
In view of the above discussion, and concurrent findings of both the courts below the
learned counsel for the pe titioners has failed to point out any illegality, irregularity,
misreading and non- reading of evidence in the impugned judgments of both the courts below,
that both the courts below have properly attended the point in controversy and recorded the correct and legal conclusion, which warrant no interference by this court. Thus, the petition being devoid of any merits is dismissed with no order as to costs.
SA/185/Bal. Petition dismissed.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.