2013 M L D 708
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
Syed AIN ULAH and 4 others ---Petitioners
Versus
DILBAR and 2 others ---Respondents
Civil Revision No.398 of 2009, decided on 19th November, 2012.
West Pakistan Land Revenue Act (XVII of 1967) ---
----S.172, 141,117 & 54 ---Civil Procedure Code (V of 1908) O.I, R.9 ---Specific Relief Act (I of
1877) Ss. 42, 39 & 54 ---Suit for declaration, cancellation of mutation and permanent injunction
was dismissed on ground of non -joinder of ne cessary parties and lack of jurisdiction under S.172
of the West Pakistan Land Revenue Act, 1967 ---Validity ---While there was a bar on jurisdiction
of a civil court in matters provided under S. 172 of the West Pakistan Land Revenue Act, 1967
but it was wit h certain exceptions under Ss. 53, 141 and 117 of the Act; and said provisions were
ignored by courts below who only confined themselves to S. 172 ---No decision was given in the
matter by Revenue Authorities, rather there was a direction to the parties to approach the civil
court for determination of their rights in respect of possession of the disputed land ---Dispute
existed between the parties in respect of area of land in possession of the plaintiffs and
defendants, entitlement of the parties in the land in question was to be determined by a court of
general jurisdiction ---Dismissal of suit on basis of non -joinder of a necessary party was an
erroneous decision as under O. I, Rule 9, C.P.C., no suit shall be defeated by the reason of
misjoinder and non -joinder of parties and the Trial Court was empowered to implead a person to
the proceedings who it deemed to be necessary for determination of the matter in issue ---High
Court set aside order of courts below and remanded the matter to Trial Court with the dir ection
to proceed with the matter in accordance with law ---Revision was allowed, accordingly.
Abdul Qadir v. Sher Muhammad 2010 MLD 1596 and Hassan Shah v. Settlement Officer
2007 CLC 1609 ref.
Muhammad Yousaf v. Karam Elahi 2006 YLR 1196; Syed Mahb oob Ali Shah v.
Federation of Pakistan 2011 CLC 907; Farzand Ali v. Fateh Muhammad 2005 CLC 1223;
Muhammad Idress v. Muhammad Pervaiz 2010 SCMR 5; Bore Muhammad v. Mst Aziza Begum
PLD 2003 Kar. 466 and Tahir Hanif v. Member Board of Revenue 1982 CLC 1732
distinguished.
Munir Agha for Petitioners.
Abdul Khair Achakzai and Amanullah Tareen, Additional Advocate General for
Respondents.
Dates of hearing: 8th May and 19th November, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Feeling aggrieved of the order dated 30th April
2009 of the Senior Civil Judge, Pishin, whereby the suit filed by the petitioners was dismissed
for non joinder of parties, and for want of jurisdiction, and judgment dated 22nd July, 2009 of
District Judge, Pishin, whereby the appeal preferred was declined, resulted in filing of the instant
petition. The petitioner questioned both the judgments while contending that the courts below not
only failed to discuss the factual controversy between the parties, but a lso ignored the material
facts, and circumstances of the case, thereby committed error. Further, the fact that their
(petitioners') title of being owners of the property in question was uncontested, the suit was
decided in haphazard manner on hearing of th e parties only on the legal issues, which cannot be
done. Furthermore, the courts below over looked the fact that without producing of evidence it
cannot be ascertained that the suit filed by them (petitioners) was baseless, and filed with
misconceived con tentions. Therefore, the orders of the courts below were result of misreading,
and non -reading of the facts, and circumstances of the case, and also failed to fulfil the legal
requirements. It was contended that the courts below decided the matter on mere technicalities
instead of giving findings on merits of the case, thereby erred in law. It was prayed that both the
judgments be set aside, and case be remanded to the trial court for deciding it after recording of
the evidence.
2. The learned counsel for the parties were heard at length. It was argument of the learned
counsel for the petitioners that the courts below dismissed the suit on ground of non -joinder of
necessary party, the findings were in clear violation of Order I Rule 9 Civil Procedure Code
(C.P.C.). It was further his argument that civil court had the jurisdiction in the matter, because
the suit was for cancellation of mutation entry, with plea of fraud, and misrepresentation,
therefore, need evidence. The learned counsel urged that the suit might have been decided on
merits, instead of its dismissal on initial stage on mere technicalities. He placed reliance on: --
Abdul Qadir v. Sher Muhammad 2010 MLD page 1596
Hassan Shah v. Settlement Officer 2007 CLC page 1609
The learned counsel concluded that it is a case of remand.
3. In reply thereof the learned counsel for the respondents raised objection on
maintainability of the instant petition with contention that the petition is not maintainable for
want of filing of relevant document s. It was further his argument that the civil court lacks
jurisdiction in the matter due to the fact that the title of the petitioners in respect of the suit
property was not denied by the other party, rather the factual controversy between them was of
demarcation of their respective shares. The learned counsel placed reliance on: --
Muhammad Yousaf v. Karam Elahi 2006 YLR page 1196
Syed Mahboob Ali Shah v. Federation of Pakistan 2011 CLC page -907
Farzand Ali v. Fateh Muhammad 2005 CLC page 1223
Muhammad Idress v. Muhammad Pervaiz 2010 SCMR page 5
Bore Muhammad v. Mst. Aziza Begum 2003 PLD Kar. 466
Tahir Hanif v. Member Board of Revenue 1982 CLC Lahore 1732
The learned Additional Advocate General only stated that there was no dispute of title
between the parties, therefore, the parties were required to approach the competent forum under
the Revenue Laws. In reply it was only contention of the learned counsel for the petitioners that
the suit was wrongly dismissed, if there was lack of jur isdiction either the plaint be rejected, or
be returned instead of dismissal of the suit.
4. The facts as appeared from the papers attached with the petition that a suit for
declaration, cancellation of mutation Entry No.504, and permanent injunction was filed by the
present petitioners/plaintiffs. The suit property was described as land pertaining to khasra
No.201, measuring 26 rods, 22 poles. The petitioners claimed declaration of title of ownership in
suit land, with further prayer of cancellation of m utation entry No.504, claimed to had been
effected in the name of one Nazeer Ahmed. In reply thereof defendants Nos.1 and 2/present
respondents Nos.1 and 2 raised objection on maintainability of the suit being barred under
section 172 of the Land Revenue A ct, 1967 (hereinafter referred as Act, 1967), with further
objections on legal, and factual side. On merits though they admitted the plaintiffs/ petitioners
being co -sharers along with them in the property, total measurement of which was described as
531 r ods and 7 poles. But, with further assertion that the mentioned property was already
partitioned between the shareholders, consequent thereof each one of them were in possession of
their respective shares. It was also their plea that the matter remained su b judice before the
Revenue forum, whereby inquiry was held, and it was determined that the petitioners/plaintiffs
were owners only to the extent of 26 rods 22 poles, with further determination that an area of 9
rods 36 poles in excess of their (petitioner s') share were in their possession. They (respondents
Nos.1 and 2) asserted to be owners of the mentioned excess area. There was also a reference to
order of the Executive District Officer (Revenue). Pishin in respect of demarcation, and
separation of shar es of the parties, proceedings whereby had been completed. With further
assertion that the said order/ demarcation was challenged, but dismissed through order dated 12th
June, 2007. In addition a specific plea was raised to the effect that in khasra No.201 , the
questioned entry, the share of the petitioners was not 26 rods 22 poles, rather in all the five Kitas
their share consisted of 26 rods 22 poles.
5. The trial court framed issues on 26th September, 2007. Issue No.1 was jointly framed for
all the leg al objections raised in the written statement, while the remaining issues pertained to the
merits of the case. The record further revealed that the trial court after hearing the parties decided
two objections, pertaining to non -joinder of necessary parties , and lack of jurisdiction through
order dated 30th April. 2009. While deciding both the objections in affirmative, dismissed the
suit being not maintainable. The appellate court through judgment dated 22nd July 2009 though
concurred with the findings of t he trial court, but further held that as the proceedings were held
by the Revenue Authorities, and an order dated 12th June, 2007 was made during the course,
which was not challenged by the appellants/plaintiffs (present petitioners) before the proper
forum, therefore, the suit was rightly rejected. Because, the petitioners/plaintiffs were required to
file an appeal against the order to the Revenue Authorities for purpose of demarcation of the
property. The courts below dismissed the suit while applying the provisions of Section 172 of the
Land Revenue Act, 1967.
6. Though there is a complete bar on jurisdiction of a civil court in the matters provided in
the section 172 of the Act, 1967, but with certain exceptions. Section 53 of the Act, 1967 is an
examp le whereby an aggrieved person is allowed to file a suit for declaration to establish his
title, being aggrieved of an entry in the Revenue Record. Section 141 of the Act, 1967 is also an
exception to section 172 of the Act, 1967. Further, defining of boun daries surely exists in the
powers of the Revenue Officer, but under section 117 of the Act. 1967, also include the name of
"any court" in addition to Revenue Officer, or Forest Settlement Officer, who have already
determined the boundaries. But, these leg al provisions were missed by the courts below, who
only confined themselves to section 172 of the Act, 1967.
7. Furthermore, in their written statement defendants/respondents Nos.1 and 2 referred to an
order of Executive District Officer (Revenue), Pishi n dated 12th June 2007, whereby the matter
was decided by the Revenue Forum. The appellate court while placing full reliance on the order
arrived to the conclusion that civil court had no jurisdiction. But, it seemed that the appellate
court did not go thr ough the order. This order is available in the case file, along with other
documents filed by respondent No.1. The contents of the order disclosed that the appeal filed by
petitioner No.3 in the court of Executive District Officer (Revenue)/Collector, Pish in was
dismissed, but with further direction that: --
There was no decision of the matter by the concerned Authority, rather there was a
direction to the parties concerned to approach the civil court for determination of their right in
respect of possess ion of the disputed land. This order had already attained finality, as none of the
parties approach the higher forum for setting aside of the same. In view of the fact the petitioners
rightly approached the civil court for redressal of their grievance.
8. It is to be noted that both the parties though claimed themselves to be the shareholders in
the questioned property, and to be in possession of their respective shares on the basis of some
private partition, which had not yet been made official. But, sti ll a dispute exists between the
parties in respect of the area of the land in possession of the petitioners, who alleged to be in
excess of their share. The entitlement of both the parties in the land in question is to be
determined by a court of general j urisdiction. Same is the case with cancellation of mutation
entry effected in favour of Nazeer Ahmed, which was described to be as a result of fraud, and
misrepresentation. Only a civil court of general jurisdiction can decide this issue, and grant relief
thereof. The judgments relied on by the learned counsel for the respondents Nos.1 and 2 are not
attracted in case in hand, thus of no help.
9. As far as non -joinder of said Nazeer Ahmed is concerned. As a specific relief had been
claimed against him ther efore, he was a necessary party, and in his absence no effective decree
can be passed in the matter. To this extent the findings of the trial court was correct, but,
dismissal of suit on its basis was an erroneous decision. Because, in presence of a specif ic
provision i.e. Order I Rule 9, C.P.C. no suit shall be defeated by the reason of misjoinder and
non-joinder of parties. This rule empowered a court to implead a person to the proceedings, who
deemed to be necessary for determination of matter in issue. The courts below erred in law while
deciding it contarary.
10. In view of the above discussion it is determined that civil court had jurisdiction to
entertain the case in hand while the orders of the courts below were erroneous, therefore, liable
to be s et aside. The petition is hereby accepted. The judgments dated 30th April 2009 of Senior
Civil Judge, Pishin, and judgment dated 22nd July 2009 of District Judge, Pishin are hereby set
aside. The case is remanded to the trial court with direction to get am end the plaint by making
Nazeer Ahmed as defendant to the suit, and thereafter, proceed with the matter strictly in
accordance with law.
As it is a quite an old matter, therefore, the trial court is directed to conclude the same
within a period of six months from the date of this order.
There shall be no orders as to costs.
KMZ/109/Q Case remanded.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,
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