1. ' TALAAT QAYUM QURESHI, J.--- Mst. Roshah and another, respondents Nos.1 and 2 filed Suit NO,414/1 of 1996 against the petitioners-defendants for declaration, perpetual injunction and possession through partition of the suit property in the Court of learned Senior Civil Judge/Aa'la Illaqa Qazi, Swat. The said suit was resisted by the petitioners-defendants by filing written statement. The learned trial Court, after framing issues, recording pro and contra evidence and hearing the learned counsel for the parties, decreed the suit with direction to deposit the court-fee within ninety (90) days vide judgment and decree, dated 3-3-2001.
2. ' Being not satisfied with the said judgment and decree, the petitioners-defendants filed Civil Appeal NO,137/13 of 2001 in the Court of learned District Judge/Zilla Qazi, Swat, which was entrusted to the learned Additional District Judge/Izafi Zilla Qazi, who after hearing the learned counsel for the parties, dismissed the appeal vide judgment and decree, dated 19-3-2002.
3. ' Being not contented with the judgments and decrees of the Courts below, the petitioners- defendants have filed the revision petition in hand.
4. 'Mr. Abdul Sattar Khan, Advocate, the learned counsel representing the petitioners, argued that respondent NO,1, being the widow of Rajab deceased is entitled to 1/8 share, while respondent NO,2, being daughter, is entitled to 1/2 share, which come to 3/24 and 12/24 respectively in the entire estate. The petitioners-defendants, being collateral are entitled to remaining 9/24 shares.
5. 'It was argued that the suit-land is agricultural property and for partition of agricultural land, the jurisdiction vests in the Revenue Court and in this regard has placed reliance on section 172(2) of the West Pakistan Land Revenue Act, 1967, which excludes the jurisdiction of the Civil Court.
6. ' It was also argued that for determining the rights of the parties, preliminary decree is required to be passed, which is lacking in the instant case.
7. ' It was further argued that in case of the share of each party is determined, then under Order XX, rule 18, C.P.C. The decree is to be sent to the Collector for partition of the suit-land.
8. ' On the other hand, Malik Ahmad Jan, Advocate the learned counsel representing respondents Nos.1 and 2, argued that the Courts below have rightly analyzed the evidence on record and their concurrent findings need no interference.
9. ' It was argued that the instant revision petition has been admitted for regular hearing only with regard to the grant of decree for possession through partition.
10. ' It was argued that under the Islamic Law of Inheritance, the daughter, if alone, is entitled to 1/2 share, while the widow is entitled to 1/8th share in the entire legacy, hence respondents Nos.1 and 2 are entitled to get 8/16 and 2/16 shares respectively in the suit-land and the petitioners, being residuaries are entitled to get the remaining shares.
11. ' I have heard the learned counsel for the parties at length and perused the available record.
12. ' The question of shares of the legal heirs of Rajab deceased has also been resolved in the admitting note in the following words:- "The Courts below have carefully and rightly analyzed the evidence and their concurrent findings on this question cannot be disturbed."
13. ' The 'only objection of the learned counsel for the petitioners with regard to the ascertainment of shares is that the shares of the widow as well as that of the daughter of Rajab have not been specifically mentioned in the decree, though he was in agreement that the widow (plaintiff NO,1) is entitled to 1/8th share and the daughter (plaintiff NO,2) to 1/2 share in the total legacy of Rajab. The remaining shall devolve upon the residuaries i.e, the defendants/ petitioners.
14. ' Another question was, under dispute between the learned counsel for the parties, that whether the shares of these ladies would be deducted first and then the remaining shall devolve upon the residuaries or out of the total shares each one of the L.Rs, would get his/her share. This question has a simple answer. If we just have a glance at the classes of heirs, there are three classes of heirs namely, (1) Sharers, (2) Residuaries and (3) distant kindred. Each has been defined as under:-- "Sharers" are those who are entitled to a prescribed share of the inheritance; "Residuaries" are those who takes no prescribed share, but succeed to the "resudue" after the claims of the sharers are satisfied.
15. "Distant Kindred" are those relations by blood who are neither Sharers nor Residuaries.
16. ' When we look at the definition and meaning of "residue" it is very clear that they succeed to the "residue" after the claims of the sharers are satisfied.
17. ' Keeping in view the above definitions it can easily be said that first the sharers will get according to their Shari entitlement out of the legacy of Rajab and then the residuaries shall take the "residue" after the claims of the sharers are satisfied. So the judgments and decrees of the Courts below are only modified to the extent that plaintiff NO,1 shall get 1/8th share and plaintiff NO,2 is held entitled to 1/2 share in the total legacy of Rajab and the remaining (residue) shall devolve upon the petitioners/defendants.
18. ' So far as the question of granting decree for possession through partition is concerned, while admitting the revision petition to regular hearing on 2-5-2002 it was held:-- "Under the circumstances, the revision is admitted to the extent regarding the grant of decree for possession through partition."
19. 'The only question requires to be determined in this case is the one mentioned above. Admittedly the suit-land is agricultural property. It is by now settled law that the jurisdiction of the Civil Courts to grant decree for possession was barred by the provisions of section 172(2), XVII of the West Pakistan Land Revenue Act as the said jurisdiction vests in Revenue Courts, therefore, no such decree for actual possession could be granted, however, symbolic possession's decree could be granted, however, symbolic possession's decree could be passed.
20. 'Moreover, the right of partition for entitlement of their shares could be determined and a preliminary decree for partition could be passed but so far as its actual possession was concerned, the decree was to be sent to Collector under Order XX, rule 18, C.P.C., which in the case in hand has not been done. I, therefore, modify the judgments and decrees of the Courts below in this regard to the extent that symbolic possession is given to the respondents/plaintiffs, but for actual possession the decree be sent to the Collector under the provisions of Order XX, rule 18, C.P.C., which Court alone has the jurisdiction to do the needful.
21. ' With the above modification the revision petition in hand is partially allowed, but with no orders as to costs.