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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

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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.

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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

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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

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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

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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