' MUHAMMAD ALAM KHAN, J.---The petitioners-defendants have filed the instant revision petition against the judgment dated 7-2-2004 of Additional District Judge-I Bannu whereby on acceptance of appeal filed by the respondents-plaintiffs against the order of the Senior Civil Judge Bannu dated 26-10-2002 the case was sent back to the trial Court with the directions to decide the same afresh after recording evidence of the parties.
2. Briefly narrated the facts of the case are that Sardar Khan and others plaintiffs-respondents herein, brought a suit for partition of land measuring 116 kanals 9 marlas previous Khasra No,1886/1887, present Khasra No,3012 entered in Khata No,693/3454 as per Jamabandi for the year 1992-93 and situated in Mouza Ara, Tehsil and District Bannu. It was averred in the plaint dated 1-9- 1997 that the parties being joint owners and the plaintiffs being out of possession were entitled to the partition of the suit-land. The defendants were summoned. They submitted the written statements in which the plea of jurisdiction was specifically raised on the ground that the suit-land being agricultural land which has not changed its nature into that of Abadi or commercial land and thus, under the provisions of section 172 of the West Pakistan Land Revenue Act, 1967 the civil Court is bereft of jurisdiction to try the present suit.
3. During the pendency of the lis the defendants also submitted an application under the provisions of Order VII, Rule 11, C.P.C. That the property as such is agricultural and is not amenable to the jurisdiction of the Civil Court. It was submitted that as the suit is barred under the provisions of section 172 of West Pakistan Land Revenue Act, 1967 thus, the plaint is liable to be rejected under Order VII, Rule 11, Civil Procedure Code.
4. In the meantime the written statements filed by the defendants-petitioners culminated into the framing of the issues upon which the evidence has to be led. In continuation of the earlier application petitioners-defendants also submitted an application for the dismissal of the suit but the same was rejected vide order dated 27-7-2000 by the learned trial Court. This order was impugned in Civi1 Revision before the District Judge, Bannu which was entrusted to Mrs. Zarqaish Sani, Additional District Judge Bannu who, vide her order in C.R.No,30/2000 decided on 4-6-2001, held that as a portion of the suit land is covered by Abadi and the same is partially cognizable by the civil Court with respect to the Abadi and that the remaining land being agricultural, can be partitioned by the Revenue Court through a proper application for partition. The plaintiffs were also directed to amend the plaint in order to add the prayers of declaration.
5. Again the petitioners submitted an application seeking the same relief involving the jurisdiction of the trial Court. It so happened that the trial Court heard the counsel for the parties and came to the conclusion that the plaintiffs-respondents should seek their remedy in the Revenue Court under the provisions of West Pakistan Land Revenue Court Act, 1967, vide order dated 26-10-2002.
This order was again impugned in appeal by the plaintiffs-respondents and the learned Additional District Judge-I Bannu accepted the appeal vide judgment dated 7-2-2004 in Civil Appeal No,52/13 of 2002 and held that the impugned order is in violation of the earlier order passed in revision, and thus, the matter was again referred to the trial Court for decision afresh after recording the evidence.
6. Mr. Sher Adat Khan attorney for the petitioners submitted that Sardar Khan has filed another suit regarding the same Khasra No,3012 bearing Suit No,74/i seeking declaration and perpetual injunction which is pending before Civil Judge-V, Banuu.
7. The petitioners being aggrieved have come to this Court challenging the judgment and decree of the learned Additional District Judge-I Bannu dated 7-2-2004. Mr. Sher Adat Khan, attorney for the petitioners is present in person and he was heard in detail in support of the contentions raised in the main revision petition.
8. There is no cavil with the proposition that if the land is agricultural then the partition of the same is exclusively amenable to the A jurisdiction of the Revenue Court and the jurisdiction of the Civil Court, in view of section 172 of West Pakistan Land Revenue Act, 1967, is barred. However, this proposition is subject to one exception that if the agricultural land loses its character and becomes building site or commercial area, then the Civil Court has the jurisdiction to entertain the suit with respect to the partition of that property.
9. In the case-in-hand strangely that the two suits, one for partition and the other for declaration, are pending in two different Courts as stated by attorney for the petitioners. If it is so, then it is the duty of the learned District Judge, Bannu to entrust the same to one Court for joint trial. The second important question is that whether the land or its major portion is covered by Abadi or the same is exclusively agricultural land is a spot related question, which can be determined by the trial Court after the appointment of a Local Commissioner who after visiting the spot will be in a position to determine the nature of the property. None of the Courts below have taken into consideration this important aspect of the case and the parties traversed the Court premises for their genuine rights for sufficiently long time.
10. In view of the facts and circumstances of the case narrated above, this revision petition is accepted, the impuped orders of the two Courts below are set aside and the case is remanded to the Senior Civil Judge, Bannu with the direction to appoint a Local Commissioner and to re- determine the factum and question of jurisdiction, keeping in view the observations recorded by this Court. A copy of this order be sent to the learned District Judge, Bannu so that both the suits are entrusted to one and the same Court. Petitioner No,1 is directed to appear before the Senior Civil Judge, Bannu on 20-2-2008 and it will be highly appreciated if the matter is expeditiously disposed of, as this litigation is lingering on since long time. No order as to costs.