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    Date of Hearing: - : Lal Jan Khattak, J

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    Malik Sohaib Awan

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    Date of Hearing: - : Lal Jan Khattak, J

    Uploaded by

    Malik Sohaib Awan
    11 views6 pages

    Original Title

    C.R.No.120-of-2013

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    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    11 views6 pages

    Date of Hearing: - : Lal Jan Khattak, J

    Uploaded by

    Malik Sohaib Awan

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 6

    1

    PESHAWAR HIGH COURT ABBOTTABAD BENCH

    JUDICIAL DEPARTMENT

    JUDGMENT SHEET

    C.R. No.120-A of 2013

    Date of hearing: ___________________________

    Petitioner _______________________________________

    Respondents _______________________________

    LAL JAN KHATTAK, J. This revision petition under

    Section 115 CPC is directed against the judgment and decree

    dated 02.04.2013 of the learned Additional District Judge-III,

    Abbottabad, whereby the respondents-plaintiffs’ appeal

    against judgment/order and decree dated 04.12.2012 of the

    learned Civil Judge-IX, Abbottabad, has been accepted and

    the case has been remanded to the trial Court for its decision

    on merits .

    2- Brief facts of the case are that the respondents

    No.1 to 6 filed a suit against the petitioners and others for

    declaration to the effect that they are owners-in-possession of

    the landed property measuring about 19 kanal 09 marlas

    falling in khasra No.2616 of Mauza Nawanshehr, Tehsil and

    District Abbottabad, which had come to them consequent

    upon a private partition effected between theirs and the

    petitioners’ predecessors. They had further prayed for setting


    2

    aside the orders dated 29.08.2009 and 07.03.2012 of the

    DDO(J), Abbottabad, alongwith cancellation of partition

    mutation No.555 attested on 12.06.2012, whereunder khasra

    No.2616 has been partitioned between parties to the suit.

    When summoned, petitioners filed an application under Order

    VII Rule 11 CPC for rejection of the plaint, which was

    accepted by the learned trial Court on 04.12.2012 and

    consequently the plaint was rejected. Respondents impugned

    rejection of the plaint in appeal and the learned appellate

    Court vide judgment and decree dated 02.04.2013 set aside

    the order of the learned trial Court and sent the case back to it

    for its disposal on merit, hence, the instant revision petition.

    3- Learned counsel for the petitioners contended

    that the respondents’ plaint was rightly rejected by the learned

    trial Court, as same was hit by section 172 (2) (xviii) of the

    Land Revenue Act, 1967. He further contended that private

    partition, if any, does not determine legal rights of the co-

    sharers in an undivided landed property unless same is

    affirmed by an order of a Revenue Officer. Learned counsel

    further contended that the partition proceedings were

    impugned by the respondents before proper forum and their

    such plea was turned down by the concerned Revenue Officer

    whose order was not further challenged in the revenue

    hierarchy and, as such, same has attained finality.


    3

    4- As against the above, learned counsel for the

    respondents, while defending the impugned judgment and

    decree of the learned appellate Court, contended that the

    respondents’ plaint was not barred by section 172(2)(xviii) of

    the Land Revenue Act, 1967, as a very live issue has been

    raised therein by them qua their proprietary rights in the suit

    land. He further 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 ibid provision of law

    5- I have heard arguments of learned counsel for

    the parties and gone through the case record.

    6- Respondents’ case against the petitioners is that

    suit khasra No.2616 and other landed property falling in

    khasra Nos.6419/1973/2, 1971, 6419/1973/1, 6419/1973/3,

    6370/1824/1/2, 1821, 1820, 6354/1823 were jointly owned by

    common predecessors of the parties to the suit, which long

    long ago were privately partitioned whereunder khasra

    No.2616 had come to their share while khasra

    Nos.6419/1973/2, 1971, 6419/1973/1, 6419/1973/3,

    6370/1824/1/2, 1821, 1820 and 6354/1823 were given to the

    petitioners and since then parties to the suit are enjoying their

    respective possession over the khasra numbers, as mentioned

    above, but in the revenue record the properties are still

    figuring as jointly owned by the parties. According to the

    averments of plaint, petitioners while taking advantage of the


    4

    entries appearing in the revenue record, applied for partition

    of khasra No.2616 and succeeded in getting an ex parte order

    on the back of the respondents from the Revenue Court,

    which, according to the respondents, was not only illegal but

    has affected their rights in the suit khasra, as it had come to

    them in private partition. Furthermore, as per the contents of

    the plaint, the respondents have raised construction on the suit

    property i.e. khasra No.2616.

    7- Moot question for determination in the instant

    case is whether the respondents’ suit is barred by section

    172(2)(xviii) of the Land Revenue Act, 1967 or the Civil

    Court has jurisdiction to adjudicate upon it? Answer to the

    above question is that as a question of title is involved in the

    case, therefore, civil Court is the only forum, which can

    resolve the controversy after recording pro and contra

    evidence. No doubt, according to the ibid section of law, a

    civil court shall not exercise jurisdiction over a 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 but when a question of title is raised in a suit then the

    provisions of section 172(2)(xviii) of the Land Revenue Act,

    1967 would not come in the way of a civil Court to decide the

    issue so raised by a plaintiff in his suit. What is a question of

    title and when it will arise? Question of title is the claim of a

    person as to his ownership in some property and it will arise


    5

    when someone denies his right or interest in his property. It

    may include when due rights of a person are jeopardized by

    any mode of partition or order of a Revenue Officer.

    8- In the instant case, plea of the respondents-

    plaintiffs was that from the time of their forefathers, the suit

    khasra had come to their shares by way of a private partition

    and since then they are its owners in possession and have

    raised construction thereon. It was also their plea that as a

    quid pro quo another set of property falling in khasra khasra

    Nos.6419/1973/2, 1971, 6419/1973/1, 6419/1973/3,

    6370/1824/1/2, 1821, 1820 and 6354/1823 has been given to

    the petitioners-defendants, which is possessed by them as

    owners.

    9- In the backdrop of above, suit of the

    respondents, challenging the partition proceedings and the

    partition mutation No.555, squarely falls within the domain of

    a civil court because the private partition, as claimed, has

    created title and interest for the respondents in the disputed

    land which fact has been denied by the petitioner. The denial

    can be resolved only by a civil court after recording pro and

    contra evidence qua the plea.

    10- Learned counsel for the petitioners vehemently

    argued that had there been any private partition amongst the

    co-owners then same should have been affirmed by the

    respondents from a Revenue Officer as envisaged under


    6

    section 147 of the Land Revenue Act, 1967 failing which no

    importance could be given to the plea of private partition. Ibid

    plea of the learned counsel is of no help to the petitioners, as

    seeking affirmation of a private partition under the ibid

    section of law is optional, as the section of law lays down that

    in any case in which a partition has been made without the

    intervention of a Revenue Officer, any party thereto may

    apply to a Revenue Officer for an order affirming the

    partition. The section of law nowhere postulates that in case

    no resort is made to a Revenue Officer for affirmation of the

    private partition then same will be of no legal effect. As resort

    to a Revenue Officer under Section 147 of the Land Revenue

    Act, 1967 is discretionary, and not mandatory, therefore, no

    prejudice would be caused to a party, which does not avail the

    benefits under the ibid section.

    11- The learned appellate court has properly

    analyzed the legal and factual aspects of the case whereafter it

    rightly allowed the respondents’ appeal. I do not see any

    illegality in the judgment and decree of the learned appellate

    Court, therefore, the instant revision petition, being bereft of

    any merit, is hereby dismissed.

    Announced.
    04.12.2015.
    JUDGE

    Muhammad Rustam,
    P/S

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