MUHAMMAD RAFIQUE Versus MUHAMMAD ROSHAN
1. RAZA ALI KHAN, J.--- This appeal has been filed against the judgment and decree dated 26.10.2017 passed by the learned District Judge Jhelum Valley.
2. Brief facts of the case are that appellants herein filed a suit for declaration cum perpetual injunction and possession against respondents herein in the Court of Senior Civil Judge Jhelum Valley on 23.01.2016. It was averred that land comprising khewat No.15 measuring 57 kanals 17 marlas situated in village Hail Tehsil and District Hattian Bala was in the ownership of Faqeer son of Sawaria alias Faqeer Janjua predecessor in interest plaintiff and proforma defendant. It was further averred that defendants Nos.20 to 27 during settlement wrongly entered khewat No.15 renumbered as 11, as 39 kanals 14 marlas in the revenue record and illegally got entered khasra No.135 in the name of defendants in the recent settlement who have no concern with the suit land. It is also stated that khasra No.127 measuring 2 kanals 2 marlas and khasra No.128 measuring 6 kanals 1 marla is in the ownership and possession of the plaintiffs and proforma defendants. The defendants Nos.1 to 15, 18 and 19 contested the suit by filing written statement, wherein they refuted the claim of the plaintiffs and submitted that plaintiffs have no cause of action and the suit is liable to be rejected under Order VII Rule 11, Code of Civil Procedure. Along with the suit, an application for interim relief was also filed by the plaintiffs. The other side filed objections on the application. The learned trial Court heard the learned counsel for the parties on the application filed under Order XXXIX Rules 1 and 2 Code of Civil Procedure and rejected the suit under Order VII Rule 11 Code of Civil Procedure, vide judgment and decree dated 28.04.2017. Feeling aggrieved, the appellants herein, preferred an appeal before District Judge Jhelum Valley. The learned District Judge after hearing the parties, dismissed the appeal through impugned judgment and decree dated 26.01.2017.
3. The learned counsel appearing for the appellants argued that the Court below heard the arguments on the application for interim relief and illegally rejected the suit under Order VII rule 11, Code of Civil Procedure. The learned Advocate further argued that under Section 53 of the Land Revenue Act the civil Court is competent to pass a decree regarding correction in the revenue record. The learned Advocate contended that the questions raised in the suit can only be resolved after recording evidence of the parties but the Courts below illegally rejected the suit without providing the parties an opportunity to lead evidence. The learned Advocate in support of his submissions placed reliance on following cases:-
2. 2003 YLR 2677.
3. 2013 SCR 172
4. 2001 CLC 373.
5. Unreported judgment rendered in Civil Appeal No.100 of 2017 titled Abdul Qayyum v. Muhammad Rafique and others decided on 06.12.2017.
4. The learned counsel for the respondents supported the impugned judgments and decrees and submitted that plaintiffs have no concern with the suit land hence, they have no cause of action to file the suit. The learned Advocate further argued that matter as is agitated in the suit, requires correction and the proper forum for correction in the revenue record is Revenue Courts and the Civil Court has no jurisdiction to entertain the suit for correction in the revenue record.
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. There is no cavil that plaint can be rejected at any time in terms of Order VII Rule 11 of the Code of Civil Procedure, 1908 if the same comes within the purview of clauses incorporated therein but while penalizing a plaintiff it is the basic duty of the Court to take all the possible care and caution before invoking the said provision because rejection of plaint would amount to disarm the plaintiff right at inception of the proceedings. While resorting to Order VII rule 11 Code of Civil Procedure the Court must ensure that plaint is clearly hit by barring clauses of the said provision of law. In the case in hand, the learned Senior Civil Judge, Jhelum Valley rejected the plaint under clause (a) of Order VII rule 11 of Code of Civil Procedure and while doing so observed as under:
7. There is no denial that Section 172 of Land Revenue Act, 1967 excludes the jurisdiction of civil Court in the matter relating to the correction of any entry in record of rights, periodical record of right and Register of mutation, but whenever any such entry interferes with the right of a person pertaining to the land in question, he can approach to the civil Court for declaration of his right in terms of Section 53 of Land Revenue Act, 1967. For proper appreciation section 53 of the Land Revenue Act, 1967 is reproduced as under:-
8. "53. Suit for declaratory decrees by persons aggrieved by an entry in record.----If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877.
9. Provided that no such declaration shall be made in respect of land which is Khalsa Sarkar or is owned by the Government."
10. A perusal of plaint clearly reflects that matter at issue canvassed in the plaint is not restricted to correction of entries made by revenue authorities in ordinary course of his business but the plaintiff questioned the entries in the revenue record on the ground that those were made illegally which adversely affect his rights. In such situation bar contained in section 172 of Land Revenue Act, 1967 cannot be pleaded as hurdle in exercise of jurisdiction of the civil Court. Hon'ble Supreme Court of Pakistan in case titled Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78 observed as under:
11. "Regarding bar of jurisdiction of the Civil Court under section 172, subsection (2), clause VI of the West Pakistan Land Revenue Act, 1967 it may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of his duty without touching the right of the persons in the land, but whenever such entries interfere with the rights of a person in the land record in the Record of Rights, and such person feels aggrieved, for correction of such entries he has to approach Civil Court for declaration under section 53 of the Act or in other words under section 42 of the Specific Relief Act both the relief available being of the same nature and identical. Dispute herein pertained to the nature of transactions in the suits for pre-emption based on the impugned mutation. The suit were therefore rightly held triable by the Civil Court."
12. The plaintiffs also sought decree for possession and perpetual injunction. The Courts below have rejected the suit on the ground that suit for correction in the revenue record is not competent before the civil Court. It is well settled principle of law that mere on the ground that one of the prayed remedy in the plaint cannot be granted, the suit cannot be dismissed while ignoring the other prayers made in the plaint. The matter of remedies has to be resolved by the trial Court at the time of final disposal of the suit as to which of the remedy has to be granted or refused and while picking one of the remedies out of the several ones, the suit cannot be dismissed. A reference can be made to case titled Maqsood Kausar v. Revenue Department and 91 others 2017 YLR 1492. The relevant observation recorded by the apex Court in para 6 of the judgment is reproduced as under:-
13. "In the instant case, the statement of the facts made in the plaint is composite and complex one. The plaintiff has attributed some acts of tampering with record to the officials of Revenue Department and has also prayed for declaratory decree as well as a decree for possession. Thus, merely on the ground that one of the prayed remedy in the plaint cannot be granted, the suit cannot be dismissed while ignoring the other prayers made in the plaint. The matter of remedies has to be resolved by the trial Court at the time of final disposal of the suit as to which of the remedy has to be granted or refused, but while picking one of the remedies out of several ones, the suit cannot be dismissed if the others are permissible under law."
14. A perusal of the record further reveals that the trial Court rejected the suit while entertaining the application for interim relief and no opportunity was afforded to respondent No.1/plaintiff to explain the competency of the suit. The provisions of Order VII rule 11 Code of Civil Procedure were not meant to surprise the plaintiffs by invoking said provision in order to non-suit him in terms of Order VII Rule 11 of Code of Civil Procedure. A reference can be made to 2003 MLD 109 wherein, the learned Judge of Lahore High Court Lahore, observed as under:
15. "But when a plaint is rejected after the commencement of the suit while deciding an application under Order XXXIX, Rules 1 and 2, Code of Civil Procedure, the Court acts at the back of the plaintiff. Because the case is then fixed for passing of an interlocutory order and not for determination of the question pertaining to the maintainability of the suit."
16. It also reflects from the record that the learned trial Court earlier rejected the application filed under Order VII rule 11 Code of Civil Procedure, thereafter, obtained written statement. The proper course for the trial Court was to frame issues and then provide opportunity of leading evidence to the parties in support of their respective claim and thereafter decide the controversy on merit. After commencement of proceedings by the trial Court, the rejection of the suit was not justified nor was lawful. My this view lends support from judgment of the apex Court rendered in Civil Appeal No.229/17 titled Muhammad Akram v. Shakoor and others decided on 25.04.2018 wherein, the apex Court of Azad Jammu and Kashmir in similar circumstances observed as under:-
17. "In the present case, the learned trial Court has rejected the application earlier filed by under Order VII Rule 11 Code of Civil Procedure, thereafter obtained written statement and framed issues. The proper course for the trial Court was to provide opportunity of leading evidence to the parties in support of their respective claim and thereafter decide the controversy on merit. The learned Additional District Judge, as well High Court has properly exercised their discretion while remanding the case in view of the factual controversy, we are also of the same view that the plaint could not be rejected under Order VII Rule 11 Code of Civil Procedure after obtaining written statement and framing issues."
18. The learned 1st Appellate Court also failed to appreciate the controversy and illegally maintained the order of rejection of the plaint passed by the trial Court. It may also be stated here that the learned First Appellate Court illegally held that the suit is time barred because the limitation is always considered as mix question of facts and law and the same can be resolved after recording evidence of the parties.
19. In view of above, appeal stands accepted and the case is remanded to the trial Court for fresh decision after providing the parties opportunity to lead evidence.
20. ZC/11/HC(AJK) Case remanded.