SAJEED KHAN and 8 others vs FAZAL SATTAR KHAN and 53 others

' CH. MUHAMMAD ARIF, J.---Respondents Fazal Sattar and 3 others brought a suit against the petitioners on 14-10-1979 claiming a declaration to the effect that they are in possession of a hillock to the extent of 17 Puchas (shares) out of 160 Puchas (shares) situated near about Batkhela, Malakand Agency with consequential relief to the effect that defendants should not deny such rights and they be restrained from interfering in the same through decree for perpetual injunction.

The suit was contested by the petitioners and after its trial by the learned Senior Civil Judge, Malakand at Batkhela the same (Suit No.210/1 of 1985) was disposed of on 17-3-1988 under Order XV, C.P.C. Under 'Relief , the learned trial Court held that the plaintiffs had failed to prove their case.

"Regarding declaration their case is disposed of under Order XV and the rest of the suit is dismissed".

2. On the respondent-plaintiff's appeal against the judgment and decree, dated 17-3-1988, the learned District Judge, Swat Camp at Batkhela, allowed the same with the following observations:- - "From the above narration of facts, I am satisfied that the partition regarding the Shamilat i.e. Disputed land has not taken place between the parties and the suit 'Shamilat' consisting of 160 Pachas is jointly owned by Kandi Ibrahimkhei in which the entitlement of the plaintitfs-appellants is to the extent of 17 Pachas. herefore, hold that the plaintiffs-appellants have got a cause of action and they are owners to the extent of 17 'Pachas' in the suit Shamilat and are entitled to the decree as prayed for.

This judgment was handed down on 14-7-1988.

3. On the petitioners-defendants Revision under section 115, C.P.C., a learned Single Judge of the Peshawar High Court, Peshawar came to the conclusion, on 14-3-1995, that as the possession of the plaintiffs is joint, the decree for perpetual injunction could not be granted. "The property in dispute i.e. Hillock can be partitioned under Chapter XI of the Land Revenue Act, 1-967 (Act XVII of 1967) as the Act, has been applied in Malakand Agency. The Revenue Officers in case of application before them for partition under Chapter XI of the Act can easily decide the respective shares of the parties in the partition proceedings in the light of the judgment and decree, dated 14-7-1988 of the learned District Judge, Swat Camp Court, Malakand at Batkhela."

4. Leave is claimed against judgment, dated 14-3-1995 on the ground that the suit of the respondents plaintiffs was not competent in its present form and therefore, the relief granted them i.e. a direction to the parties to approach to Revenue Authorities for partition," without a proper decree for partition" cannot be sustained in law.

5. Mr. Saeed Baig, learned counsel appearing in support of this petition, has tried to make a reference to report of the Local Commissioner, dated 25-5-1986 to contend, that the position on the spot is that a major portion of the suit land has undergone a change in the past with the result that permanent structures have been raised and the same has lost all characteristics of 'agricultural land'. According to him, Ghulam Rasool v. Ikram Ullah and another (PLD 1965 (W.P.)

Lahore 429) helps the petitioners. The precise plea is that the plaintiffs could not be provided with an opportunity to seek the change of nature of the property at this juncture by resorting the Chapter XI of the Land Revenue Act, 1967.

6. A perusal of the report in Ghulam Rasool (supra) shows that the suit brought before the Civil Courts was for possession by 'partition' of 1/2 share of the land measuring two Kanals five Marlas on the allegation that the parties were joint owners thereof in equal shares and as it was lying vacant since 1955 one of the defendants in the suit had illegally let it out to the other defendant by a registered deed "who has constructed a factory on the premises in the absence of" the plaintiffs.

Here, the plaintiffs have been declared to be owners to the extent of 17 Puchas and property is joint and not yet partitioned. So, the property in dispute, i.e. 'hillock' can be partitioned under Chapter XI of the Land Revenue Act, 1967. It is not the case of the petitioners that the Revenue Authorities in Malakand Agency are not possessed of the jurisdiction to entertain or resolve the question regarding partition of the suit property, between the parties on a proper move being made there in terms of impugned judgment, dated 14-3-1995. Substantial justice having been done between the parties, who have to follow the law applicable in relation to partitioning the disputed property in terms of the Land Revenue Act, 1967, we are not inclined to the view that any ground for interference therein, in these proceedings, has been made out.

7. The petition is sans merit and is liable to be dismissed. Order accordingly.