KARAM ALI Versus MUHAMMAD ASHRAF

The brief facts of the case are that the respondent filed a civil suit being Suit No.23/71 in the Court of the Civil Judge at Hala claiming therein the following reliefs:‑

"(a) Declare that the plaintiff is the rightful owner of the 66 paisa shore in the suit land,

(b) Decree the plaintiff's suit for partition of his 66 paisa share by metes and bounds and further direct the plaintiff to be put m separate possession of his share in the suit land,

(c) Costs of the suit be borne by the defendants, and

(d) Any other relief that this Honourable Court deems fit and proper."

2. The suit was based on the pleas amongst others, that in the agricultural land bearing survey Nos.496/1 to 4, 497/1,2 and 523/1 to 4 measuring 18.34 acres situated in Deh Wasan the plaintiff is a co‑sharer to the extent of 66 paisas and is in joint possession thereof alongwith the other co‑sharers, the petitioners, (hereafter referred as defendants). He further pleaded that the defendants have denied his right, title and interest and were creating hindrances and obstacles in the enjoyment of the suit land by him and were refusing to let the plaintiff have his share in the produce.

During the proceedings the defendants moved an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on the ground that the suit was barred by the West Pakistan Land Revenue Act, 1967. The learned Civil Judge after hearing the parties and placing reliance upon Section 172 of the aforesaid Act rejected the plaint on the ground that the Civil Court has no jurisdiction to grant the relief of partition to the plaintiff which is exclusively triable by the Revenue Court.

3. Against the above order, Appeal No.110 of 1977 was filed which was heard by the learned 1st Additional District Judge, Hyderabad, who by judgment passed on 29‑12‑1979 allowed the said appeal with the observation that the suit with the reliefs claimed could not be struck off as incompetent on the face of it. Accordingly the order of the learned Civil Judge was set aside and the case was remanded to the trial Court for disposal according to law.

4. Against the above judgment the present revision application has been filed.

5. I have considered the arguments advanced by the learned counsel for the parties in the light of pleas raised in the plaint and the reliefs claimed therein. The learned counsel for the petitioners/defendants reiterated the same grounds which found favour with the learned Civil Judge. On the other hand on behalf of the plaintiff/respondent it was contended that the judgment of the brat Appellate Court is in accordance with law and thus calls for no interference.

6. In order to appreciate the stand taken by the learned counsel for the parties it would be relevant in the first instance to refer to the principles which govern the powers of the Court to reject the plaint under Order VII, Rule 11, C.P.C. The learned counsel for the plaintiff rightly urged that while considering the plea for rejection of the plaint, for the sake of arguments the allegations of the plaintiff in the suit are to be treated as true in manner and form and that the questions or pleas raised m defence could not be taken in consideration. Another principle which has been enunciated in the case of Hasan Hena Akhtari Begum v. Dacca Improvement Trust and others P L D 1969 Dacca 82 followed in the case of Din Muhammad v. Mehar Ali P L D 1978 Kar. 267 may also be usefully referred to here. The learned Dacca High Court, dealing with similar application, observed as follows:‑ " the legislature has not restricted the enquiry by the Court under Order VII, Rule 11(d) to a consideration of the prayer portion of the plaint only. The clear mandate to the Court is that the conclusion that the Court must derive that a suit is barred by any law must be based on the statement in the plaint, that is the Court must apply its mind to the case of the plaintiff as set out in the body of the plaint."

Reference may also be made to the case of M.Moosa v. Mahmed and others P L D 1954 Sind 70 wherein the learned Court, held:‑

" In asking the Court to decide an issue like the present one the defendants must be taken to admit that for the sake of argument the allegations of the plaintiff in his plaint are true modo et forma in manner and form. In considering the present question the written statement has also not to be taken into consideration. It is only the plaintiff's allegations which if accepted to be true must disclose that the plaintiff has a cause of action against the defendants. The question for my determination, therefore, is if the allegations in the plaint are correct modo at forma in manner and form, is the plaintiff entitled to damages as claimed for."

Keeping the above principle I would now refer briefly to the relevant facts pleaded in the plaint, necessary for the disposal of the revision petition. After narrating the history of the ownership of the land owned originally by Nasir, Budho and Hassman all sons of Sonharo Lashari, the plaintiff pleaded that his father Khan Muhammad purchased 47 paisas share from one Gul, and 8 and 11 paisas shares were purchased from Mst.Bachi and Mst.Soomri in the undivided/jointly owned land and thus he became co‑owner in the suit land to extent of 66 paisas. The said Khan Muhammad, according to the averment in the plaint on 3‑3‑1971 transferred his, abovementioned undivided 66 paisas share in the suit land to the plaintiff by way of gift and delivered its possession to the plaintiff and his name was duly mutated in the Record of Rights. Since then according to the plaintiff he as one of the co‑owners, is in joint possession of the suit land alongwith the other co‑owners/the defendants, who some time before the suit denied his right, title and interest and started creating hindrances and obstacles in his enjoyment of the suit land and refused to give him his share of the produce. In the above circumstances pleaded in the plaint amongst others, the suit was filed in the Civil Court claiming reliefs as to declaration of title, partition and separate possession as reproduced above.

The learned trial Court rejected the plaint on the ground that main relief of partition and possession coupled with the relief of declaration for title is barred under section 172 of the Land Revenue Act which order was however set aside by the learned Ist Appellate Court, as already noted above with the observation that assertion of the plaintiff made in para. 10 of the plaint as to his title and interest in the suit land as joint owner was denied by the defendants/petitioners and that such a suit was maintainable under section 42 of the Specific Relief Act in the Civil Court. In the written statement as well, the petitioners/defendants have asserted that the plaintiff had no concern with the suit land and accordingly the learned appellate Court finding that the respondent's title was threatened by the petitioners, the suit filed for declaration that he is the rightful owner of 66 paisas share in the suit land could not be struck off as incompetent in an application under order VII, Rule 11, C.P.C.

In the present petition, therefore, the question arises, as to whether on the assertions made in the plaint, amongst others that plaintiff has been refused his share of produce, the relief of declaration as to the title and interest of the plaintiff in the suit land with consequential relief of ,partition and possession is barred under Section 172 of the Land Revenue Act. It would be pertinent to refer here the relevant provisions of Section 141 of the West Pakistan Land Revenue Act of 1967 which are reproduced herein below:‑

"Section 141. Disp osal of questions as to title in the prope rty to be divided : ‑ (1) When there is a question as to title m any property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court.

(2) Where the Revenue Officer does not himself proceed to determine the question of title as a civil Court, he may, for reasons to be recorded by him in this behalf, require a party specified by him to file a suit in a civil Court, within such period not exceeding ninety days from the date of his order as he may fix, for obtaining a decision regarding the question.

(3) On the filing of a civil suit by the party required so to do within the specified period, the Revenue Officer shall, suspend further action on the application for partition till the said civil suit is decided by the Court and a 'copy of the Court's order is produced before him.

(4) In case the party so required fails to file a suit within: the specified period, the Revenue Officer may proceed with the partition and decide the question of title himself."

Then follows subsection.(5) which lays down the rules which shall apply if the Revenue Officer proceeds to determine the question of title.

I have now reproduced hereinbelow section 172 (1) and (2) , (xviii) below:‑

"Section 172. Exclusion of jurisdiction of civil Courts in matters within the jurisdiction of Revenue Officers ;‑‑(1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of or take cognizance of the matter in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act.

(2) Without prejudice to the generality of the provisions of subsection (1), a civil Court shall not exercise jurisdiction over any of the following matters namely:‑

(xviii) any 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.

7. Perusal of the provisions of Land Revenue Act, 1967 reproduced above, would show that the jurisdiction of the civil Courts is barred only in specified cases. Jurisdiction of civil Courts to determine plaintiff to all lands held jointly and jurisdiction to grant a declaration that the plaintiff is the joint owner of lands in dispute is apparently not barred. In the present suit not only relief of partition of suit land has been claimed but the plaintiffs have also claimed possession of the land on partition and had pleaded that defendants denied his title and refused to give him share of the produce, and thus prayed for the grant of declaration of his plaintiffs title. Thus, the provisions referred to above on which the learned counsel for the defendants placed reliance in support of his contention that the suit filed by the plaintiffs as framed on the assertions made in the plaint for the grant of reliefs reproduced above is barred, do not find support from the language of the Land Revenue Act of 1967. It has been held time and again by the superior Courts of our country that the ouster of jurisdiction of civil Courts in respect of a civil suit is not to be readily inferred and unless that jurisdiction has either been expressly or impliedly taken away it will continue to vest in the civil Courts. Reference if need be, may be made to the case of M/s.Chalna Fibre Company Limited. Khulna and others v. Abdul Jabbar and others P L D 1968 S C 381.

8. Keeping in view the above principle laid down by the Honourable Supreme Court of Pakistan we once again revert to the wordings of item No.(XVIII) of subsection (2) of Section 172 of the Land Revenue and find that the said provisions themselves take care of the situation as involved in the present case, as the same do not contemplate taking of cognizance by the Revenue authorities of a suit which involves determination of question as to title in any property of which partition is sought and in which rights of plaintiff have been denied and he is refused share of produce. In the present suit relief of separate possession has also been claimed. As such the argument of the learned counsel that the suit was exclusively cognizable by the Revenue authorities and thus barred under section 17 1 2 of the Land Revenue cannot be sustained. I am I fortified in the view taken as above by the judgment in the case of Din Muhammad and others v. Mehar Ali Khan and others P L D 1978 Kar. 267 where while interpreting the item No.(XVIII) of subsection (2) of section 172 and repelling the contention that the cavil Court had no jurisdiction in a suit which was a suit for affirmation of the private partition it was observed:‑

......... clause (XVIII) provides for the bar of jurisdiction of civil Court to operate only in a case where questions connected with or arising out of proceedings for partition, not being a question as to title in the property of which partition is sought is raised. Accordingly, even if it be assumed that respondent No.1 had filed an application before the Deputy Collector for partition and this could be taken into consideration for the purpose of the jurisdictional bar even though it involved going beyond the plaint, it cannot be disputed that in the facts and circumstances of the case, a question of title in the land of which partition was sought by the respondent No.1 was involved. so that, even on this assumption the jurisdiction of the civil Court was not barred under the aforesaid clause (XVII1) of subsection (2;) of section 172 of the Act . The Courts below, do not, however, appear to have taken due notice of this exception provided in the clause. The Courts below were, therefore, wrong in holding that the jurisdiction of the‑civil Court was barred and acted in this jurisdiction with material irregularity by rejecting the plaint in the instant case."

9. The learned counsel for the petitioners was unable to cite any case in which the plaint involved the determination of disputes pleaded as herein with the reliefs as claimed, could be declared as barred under the Land Revenue Act and thus liable to be rejected under Order VII, Rule 11, C.P.C.

For the reasons discussed above I am satisfied that in the circumstances of the case and facts pleaded in the plaint the learned 1st Appellate Court rightly held that the civil Court has the jurisdiction to try the suit and that the suit is not barred by the provisions of the Land Revenue Act, 1967.

Thus, I find no merit in this petition which is accordingly dismissed. The case would accordingly go back to the trial Court for decision on merits.

AA./K‑81/K Revision dismissed.