ZIA ULLAH Versus LIAQAT ALI ZIA
ABID HUSSAIN CHATTHA, J .---Through Judgment and Decree dated 14.4.2009 passed by Civil Judge, Sargodha, the suit for declaration along with permanent injunction instituted by the Petitioners was dismissed by rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code, 1908 (the "C.P.C."). The appeal of the Petitioners was also dismissed by Additional District Judge, Sargodha on 17.2.2010. Aggrieved from the aforesaid Judgments and Decrees passed by the Trial Court and the Appellate Court, the Petitioners were constrained to institute the present Revision Petition.
2. Notice was issued to the private Respondent No. 1 who entered appearance on 17.12.2019 and was eventually proceeded against ex-parte on 30.11.2020.
3. It was alleged by the Petitioners in the plaint that they are owners in possession of agricultural land in khewet No. 46, Khatuni Nos. 152 to 167 in total land measuring 4701/2 kanals to the extent of 113 kanal 11 marlas situated in chak No. 81 Janoobi, Tehsil and District Sargodha, according to record of rights pertaining to the year 2003-2004. In this behalf, claiming possession over specific killa Nos., the Petitioners maintained that Respondent No. 1 had no right to pose as owner in possession of any specific killa and Mutation No.371-1 dated 14-12-1999 ought to be cancelled since Respondents Nos. 2-4 (Revenue Officers) have passed orders dated 28-04-2007, 05-06-2007 and 29-09-2007 against the law.
4. In the application under Order VII, Rule 11 of the C.P.C., respective ownership and possession of the Petitioners and the Respondent No. 1 in the joint or common khata was stated to be admitted and distinct. It was stated that property purchased on 14-12- 1999 by Respondent No. 1 is not regarding specific killas, Revenue Officers have lawfully demarcated the land on site which has attained finality and the Respondent No. 1 is occupying the land of his predecessor as he has stepped into his shoes after the purchase of property from him. The suit filed on 11.03.2008 is time barred against Mutation No. 371-1 sanctioned in 1999.
5. In the above background and context, the Courts below examined the contents of the plaint, the original sale deed and the revenue record. The Courts below concurrently found that there was no dispute to be adjudicated between the Petitioners and the Respondent No.1 as their respective ownership and possession is not in dispute. Accordingly, the plaint was rejected under the provisions of Order VII, Rule 11, C.P.C.
6. The learned counsel for the Petitioners submitted that the impugned Judgments have been concurrently passed against the record, hence the Revision may be accepted and the matter be remanded for regular trial as the Petitioners have been non-suited by rejecting the 'plaint. His emphasis and focus was on one point that the plaint sought two distinct reliefs, that is, declaration and permanent injunction in part one; and partition in part two in the title of the plaint and it was prayed that the suit be decreed as sought in the title of the plaint. However, the impugned Judgments have ignored the sought relief of partition altogether and this aspect has completely escaped attention of the Courts below. As such, not a single word has been written in the impugned Judgments regarding the said claimed relief. It is settled law that there cannot be partial rejection of plaint and in order to apply the provisions of Order VII Rule 11 of the C.P.C., the entire plaint and only the contents of the plaint are taken into consideration. Reliance was placed on case reported as, Mst. Iqbal Begum v. Farooq Inayat and others, PLD 1993 Lahore 183, wherein, it has been held that the whole suit has to be looked into while rejecting the plaint under Order VII, Rule 11 of the C.P.C.
7. The minute examination of the record reveals that just three words, were written in part two in the title of the plaint and it was prayed in the relief part that the suit be decreed 'for declaration and permanent injunction as per title of the suit'. However, the entire reading of the plaint makes it clear that this was not a suit for partition. In fact, it was stated that the Respondent No. I could not have purchased the property through sale deed in joint khata with specific khasra numbers without seeking partition. The body of the plaint does not say anything about seeking partition and the basic ingredients of the suit for partition were conspicuously missing. Paragraphs 5 and 6 of the plaint regarding cause of action do not say anything regarding partition. Even in the memorandum of appeal, this ground was not advanced but only pressed in this Revision Petition. Even otherwise, the learned counsel failed to demonstrate as to how the right of the Petitioners or for that matter, any other co-owner in the joint khata not party in the present proceedings, to seek partition of the joint property has been curtailed through the passing of the impugned Judgements. Therefore, there is no substance in the above argument that record has been misread by ignoring the plea of partition. The principle of law as enunciated in the Iqbal Begum's case (supra) was adhered to in letter and spirit and it was rightly held that the plaint did not disclose any cause of action. The entire plaint was looked into by the Courts below and only the plaint was taken into consideration for rejecting the plaint except the perusal of the original sale deed and revenue record by the Court to observe that entries regarding specific khasra numbers were scored off before registering the sale deed and to ascertain or verify the facts pleaded in the plaint to see if there was any dispute to be adjudicated. Not only the Courts were within their right to do so but correctly followed the proactive approach, thereby, saving the litigants from the agony of futile and unwarranted litigation which is the spirit of the provisions of Order VII, Rule 11 of the C.P.C.
8. The learned counsel has drawn my attention to the word "pre-emption" written in line 6 of paragraph 8 of the impugned Judgment dated 17.2.2010 and asserted that since pre-emption was never an issue in the suit, this shows complete absence of application of mind by the Appellate Court, hence, this is the case of total misreading of record. In this behalf, it is noted that the word "pre-emption" was merely a typographical error and in fact is to be read as "partition". This is evident from the overall intent and context of the sentence in which typographical error occurred which is reproduced as follows:
"The Respondent/Defendant has purchased the suit land on 14.12.1999 and the Appellants/Plaintiffs had not filed the suit for pre-emption (partition) against him"
9. From above, it is also clear that the assertion of the learned counsel that the prayer of partition was not adverted to is also not correct. Needless to reiterate that the suit in question was not a suit for partition. The respective properties of the Petitioners and the Respondent No.1 were separate and distinct in terms of their ownership and possession in the joint holding along with other co-sharers subject to partition in accordance with law. The same could not have been partitioned between them in the absence of other co-sharers. The option of seeking partition remains open to all concerned in accordance with law which right has not been extinguished, prejudiced or impaired through the passing of the impugned Judgments.
10. The second question posed in the Revision Petition before this Court as to whether a co-sharer who has purchased share can seek demarcation through the Revenue Officer without notice to the other co-sharers and whether the same can be assailed before the Civil Court in a suit for Declaration was not pressed or argued before us. Hence, there is no need to answer this question. However, in this respect, it is noted that the Petitioners invoked the jurisdiction of the Revenue Authorities themselves and remained unsuccessful till the end up to the level of Member Board of Revenue which is the highest office in revenue hierarchy. Hence, the argument that the Revenue Authorities had no jurisdiction has no force. It is, importantly observed that all the decisions of the Revenue Authorities are not appended with this Revision Petition in violation of the binding mandate of Section 115 of the C.P.C. It is importantly noted that no report of Revenue Authorities was neither placed before this Court nor relied upon by the Petitioners.
11. The impugned Judgment dated 17.2.2010 rightly concluded that no cause of action is disclosed in the plaint because the Respondent No. 1 had purchased the suit land on 14.12.1999 and the Petitioners had not filed the suit for partition (inadvertently typed as pre-emption) against him. The Respondent No. 1 is in possession of Killas Nos.22, 23 and 24 from the date, he has purchased the same from Muhammad Nawaz and it is settled principle of law that in a common Khata when any co-sharer sells his share, the vendee steps in the shoes of his predecessor. When the vendee has not occupied any other land than which the vendor was in possession, then nobody can challenge the possession of the vendee. It was not disputed that Muhammad Nawaz who sold his share of 20-Kanals 10-Marlas land in favour of the Respondent No. 1 was in possession of Killas Nos. 22, 23 and 24. It was also noted that the sale deed in favour of Respondent No.1 was originally executed with regard to specific Killa and Square numbers, but while registering the sale deed in favour of Respondent No. 1, the specific numbers were scored off. The sale deed and revenue record was seen by the Courts in original and after being satisfied that this transaction in favour of Respondent No. 1 did not pertain to specific Killa numbers and Square numbers, there is no dispute regarding respective ownership and possession between the Petitioners and the Respondent No. 1 and the Respondent No. 1 is in possession with respect to land previously occupied by the seller, the plaint was dismissed. Reliance is placed on case titled Muhammad Muzaffar Khan v. Muhammad Yusuf Khan, PLD 1959 Supreme Court (Pak) 9; case titled Muhammad Sharif and 3 others v. Ghulam Muhammad and another, 1995 SCMR 514; case titled Amir Shah v. Ziarat Gul, 1998 SCMR 593; Fazal Din v. Mst. Umar Bibi and another 1994 MLD 550; case titled Chaudhary Ghulam Abbas v. Barkat Ali and another 1999 YLR 2190; case titled Mst. Zakia Begum v. Nadir Khan and others 2011 YLR 1397 and case titled Wahid Zaman and others v. Misal Khan and others 2013 YLR 2732.
12. It therefore, follows that rights in the joint khata are protected till partition is effected in accordance with law. Vendee of the property has all the rights which the vendor had at the time of sale. The entries of a joint owner in possession of specific khasra numbers in the column of cultivation have legal sanctity and preference over other co-shares. As such, co-owner in exclusive possession of specific field number can transfer entire field provided area of said field is not more than his entitlement in the joint khata. Partition of joint holding must be undertaken by including entire land of property. Since, it was admitted that Respondent No. 1 is a co-sharer in the joint khata, therefore, he rightly occupied the subject property that was previously occupied by his predecessor. Hence, it was rightly concluded that there is no dispute between the Petitioners and the Respondent No.1 that required adjudication in a regular trial and the provisions under Order VII, Rule 11 of the C.P.C. were rightly invoked.
13. For what has been discussed above, there is no misreading or non-reading of record. There is no irregularity or illegality in the impugned Judgments which have been passed in accordance with law. Accordingly, this Revision is dismissed.
SA/Z-12/L Petition dismissed.