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    2000 C L C 1626 (Lahore) Before Mian Saqib Nisar, J RESHAM BIBI and 2 Others Petitioners Versus FAZAL Through Legal Heirs Respondent

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    Mohammad Hussnain Ali Rana

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    2000 C L C 1626 (Lahore) Before Mian Saqib Nisar, J RESHAM BIBI and 2 Others Petitioners Versus FAZAL Through Legal Heirs Respondent

    Uploaded by

    Mohammad Hussnain Ali Rana
    71 views2 pages

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    2000 C L C 1626

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    71 views2 pages

    2000 C L C 1626 (Lahore) Before Mian Saqib Nisar, J RESHAM BIBI and 2 Others Petitioners Versus FAZAL Through Legal Heirs Respondent

    Uploaded by

    Mohammad Hussnain Ali Rana

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    of 2

    2000 C L C 1626

    [Lahore]

    Before Mian Saqib Nisar, J

    RESHAM BIBI and 2 others‑‑‑Petitioners

    versus

    FAZAL through Legal Heirs‑‑‑Respondent

    Civil Revision No.471‑D of 1998, decided on 9th May, 2000.

    West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

    ‑‑‑‑Ss. 135 & 172(2) (xviii)‑‑‑Civil Procedure Code (V of


    1908), 5.115‑‑‑Suit for partition‑‑‑Jurisdiction of Civil Court‑‑‑Suit for partition of land which had attained
    character of village immovable property, was allowed by Civil Court through preliminary decree holding
    that plaintiff was owner to the extent of 1/4th share‑‑‑Appellate Court found that the property including
    certain other Khasra numbers which was jointly held by parties had attained character of residential
    property and directed the plaintiff to include the said Khasra numbers also in partition and remanded the
    case
    ‑‑‑Validity‑‑‑Khasra numbers directed to be included by Appellate Court being agricultural land, Civil
    Court had no jurisdiction in respect thereof whereas land subject‑matter of suit was a built up property
    both properties, therefore, could not be joined in one suit‑‑‑Appellate Court below having committed
    jurisdictional error, in passing the judgment and decree, same were set aside by High Court and case was
    remanded to be decided afresh.

    1997 SCMR 1792 ref.

    Mehdi Khan Chohan for Petitioners. Shahid Hussain Qadri for Respondents.

    Date of hearing: 9th May; 2000.


    JUDGMENT

    The petitioner filed a suit for partition of land measuring


    2 Kanal and 7 Marlas comprised in Khasra No.1470, Mauza Shampur, Tehsil Kharian, District Gujrat. His
    claim is that this is a built‑up property and has attained the character of village immovable property. This
    suit was contested by the respondents and, after framing of issues and conducting the trial, learned Civil
    Judge, on 8‑10‑1997, allowed the suit holding that the petitioner is owner to the extent of 1/4th share, thus,
    preliminary decree was passed. Against the above, respondent preferred an appeal and the learned
    appellate Court vide judgment and decree dated 20‑1‑1990, has allowed the same concluding that Khasra
    Nos.266, 1546 and :552, are also joint between the parties. All the property has attained the character of
    residential property, thus, the plaintiff was directed to. include these Khasra numbers also in the partition
    suit and the Civil Judge to decide the matter afresh.

    2. The learned counsel for the petitioner has argued, byrelying upon 1997 SCMR 1792, that Khasra
    numbers, directed by the appellate Court, to be included, were still agricultural land and, therefore, Civil
    Court has no jurisdiction in this regard, whereas, land subject‑matter of the suit was built up property, in
    the shape of Havaili and other superstructure; both these properties cannot be joined in one suit.

    3. The learned counsel for the respondent, before makingsubmissions on merits, has objected to the
    maintainability of the present petition on the score that the impugned judgment and decree neither suffer
    from material irregularity nor is the result of erroneous exercise of jurisdiction, therefore, this revision
    petition is incompetent. However, the learned counsel for the respondent has not denied the fact that the
    property bearing Khasra No. 1470 is builted property while the land comprised in Khasra numbers 266,
    1546 and 1652 is agricultural as per Revenue Record.

    4. As regards the objection about the maintainability of this revision petition, suffice it to say that
    according to the Revenue Record, Khasra numbers mentioned above, are shown in the Revenue Record
    as agricultural land. Thus, these cannot be included in the suit for partition filed by the petitioner.
    Therefore, the learned Additional District Judge, while passing the judgment and decree has committed
    an error of jurisdiction, in the light of the judgment of the Honourable Supreme Court cited above.
    Therefore, A this objection has no merits.

    5. As the learned Additional . District Judge has committed jurisdictional error, by directing the
    inclusion of the aforementioned Khasra numbers in the suit for partition filed by the petitioner, therefore,
    such judgment and decree cannot sustain, which is hereby set aside, the case is, remanded to the learned
    Additional District Judge with the direction to I decide the matter in accordance with the law.
    H.B.T./R‑16/L Petition allowed

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