' ABDUL SATTAR GORAYA, J.--- By means of this revision petition, the judgment and decree dated 5- 11-2003 passed by the learned District Judge, Layyah and order and decree dated 28-4-2003 of the learned trial Judge, have been brought under impeachment.
2. Facts in brief are that the land fully described in the plaint was owned by three brothers Manzoor Ahmad, Rafique Ahmad and Saeed Ahmad sons of Murad. Manzoor Ahmad died issueless and the share of the property fell on the remaining two brothers. Mutation No.365 was sanctioned on 30-5- 1991. These two brothers, it is stated, sold out the suit-land to the petitioners for an amount of Rs.3,23,000 through oral Mutation No.369 dated 31-7-1991 and possession thereof was also delivered. In the year, 1992, respondents NoS.2 to 4 with the similar name and parentage came out with the plea that they, in fact, are owners of the suit property and some body impersonating them on their behalf, sold out the property to the petitioner and in the Revenue Record the caste Joota was entered instead of Joiya. It was stated that Muhammad Rafique was still alive and the whole thing was the result of fraud. Petitioners to settle the title instituted the suit in the nature of declaration-cum-Permanent Injunction on 23-10-1992. The suit is shown to have been contested but later on the ex parte decree was passed. It is stated that the learned District Judge made entrustment of the suit vide order dated 18-12-1995 directing the parties to enter appearance before the Civil Judge, Layyah but they consciously absented themselves. The suit was decreed on 20-12-1995 in favour of the petitioners.
3. There was yet another round of litigation. The respondents moved an application before the District Collector for cancellation of Mutations Nos.365 and 369 on the basis of fraud. The District Collector vide his order dated 17-10-1994, accepted the application of respondents Nos.2 and 3 and cancelled the mutations accordingly. Petitioners filed a revision before the Commissioner, D.G.
Khan who accepted the revision an 21-12-1994 by having held that this was an intricate question of fact and the matter squarely falls within the jurisdiction of civil Court. Against the said order of the Commissioner, the revision application was instituted by the respondents (ROR No.1346 of 1995) which was accepted on 19-4-2000. Petitioners again instituted suit in the nature of declaration before the Civil Court at Layyah claiming that the order dated 19-4-2000 passed by the Member (Judicial) Board of Revenue was illegal and thus inoperative qua their rights. During the pendency of the suit, respondents Nos.2 to 4, it appears, made an application under Order VII, rule 11, C.P.C. On 27-10-2000 seeking rejection of plaint. After getting reply of the said miscellaneous application, the learned trial Judge vide order and decree dated 28-4-2003 rejected the plaint. Against the said order and decree, appeal was preferred by the petitioners which failed before the learned District Judge on 5-11-2003.
4. Learned counsel for the petitioners states that both the Courts below have fallen in error and committed serious illegalities and irregularities in reaching at the conclusion that jurisdiction of the Civil Court is barred. Further argued that the Member Board of Revenue had decided the matter finally on 19-4-2000 and at the time when initially the suit was decreed, the order of the Member Board of Revenue was not in the field. It being a case of fresh cause of action the subsequent suit was competent.
5. Learned counsel for the respondents states under section 172 of the West Pakistan Land Revenue Act, the jurisdiction is not available with the Civil Court to entertain the dispute.
6. I have heard the learned counsel for the parties and perused the record with their able assistance.
7. Under Rule 11 of Order VII, C.P.C., the plaint can only be rejected when it does not disclose cause of action or where the relief claimed is under valued and the suitor on being required by the Court to correct the valuation within a time to be fixed by the Court failed to do so or where the relief claimed is properly valued but the plaint is insufficiently stamped and the suit from the statement in the plaint appears to be barred by any law. For determination whether the suit is barred by law, the averments contained in the plaint can only be looked into and the decision in any case on the assertion of the defendants based on a material foreign to, the record cannot be made. It is a bounden duty of the Court to see whether from the statement made in the plaint there was another cause of action available and whether the suit is barred by law or not. Reference may be made to Cotenca Inspection SA and another v. Messrs Ismail and Co. And 6 others 2001 CLC 899 and Sajid Saeed v. Inam-ul-Haq 2007 M LD 1622. The jurisdiction of the Civil Court to rectify the wrong done or the entries made in the Revenue Record cannot be excluded merely by operation of section 172 of the West Pakistan Land Revenue Act. The jurisdiction is only barred in respect of those matters or functions which have been assigned to the Revenue Court. Every presumption should invariably be made in favour of the jurisdiction of the Court and all laws touching upon the usual jurisdiction of the case should be construed strictly. Ouster of jurisdiction of the Civil Court not to be interfered until and unless word used in the relevant Statute makes it clear that the intention was to take C away the jurisdiction in specific terms. In the case in hand, the question arose before the Revenue Court was with regard to the genuineness of the transaction or otherwise and the claim of the respondents was not based on merely correction of entries in the Revenue Record. In such like cases the jurisdiction is readily available with the Civil Court and with the none else. Reference may be made to Khawaja Muhammad Akbar and 5 others v. Khawaja Fateh Muhammad and 15 others 1993 MLD 76, Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCM R 78, Abdur Rehman and others v. Abdul Qadir and others 1998 CLC 401, Safdar and 5 others v. Rashid Ahmad and 12 others 1994 SCM R 1454 and Muhammad .Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCM R 2334. The Revenue Officers are bound to give affect to the decree passed by the Civil Court in the Revenue Record and ultimate jurisdiction remains with the Civil Court to settle the issue. In the case in hand, the claim of the respondents hinges on the validity of the mutation of sale and not something in the nature of correction of the record. Petitioner is holding an ex parte decree dated 20-12-1995 of the Civil Court. At the time when the Additional Commissioner Dera Ghazi Khan passed the order, the civil suit was pending. This fact has been noted in paragraph No.4 of the order of the Additional Commissioner. The learned counsel for the respondents states that he had no knowledge of the pendency of civil suit. When the order was passed by the Commissioner, D.G. Khan Division, even if it is assumed that earlier he had no notice of the pendency of the civil suit, it came in the knowledge of the respondents when Commissioner, D.G.
Khan Division passed an order on revision brought by the petitioners. In any case ex parte decree had been passed in favour of the petitioners and the affect of that decree is yet to be seen by the Civil Court. The Member Board of Revenue passed the order on 14-4-2000, which in any case gave a fresh cause of action to the suitor to maintain a lis before the Civil Court.
8. The reasons which weighed with the learned trial Judge was that the petitioners were holding an ex parte decree in their favour and there is no justification in law to file another suit on the same cause of action. Secondly the Revenue Record has been corrected by the revenue authorities and the decision of the Collector was maintained by the Board of Revenue; where after the jurisdiction is not available with the Civil E Court. These grounds on the basis of which the petitioners have been non-suited are not available and for these two reasons the plaint could not be rejected under Order VII, rule 11, C.P.C. That fact that the petitioners are holding a Civil Court decree in their hand, it cannot be make a relevant ground to non-suit them. Adverse attack has been made against the rights of the petitioners finally on 19-4-2000. The moment order has been passed by the Member Board of Revenue, the suit was competent. Whether the plaint is hit by the principle of Res Judicata or not, can only be determined after holding the trial and in no other manner. Both the Courts below have committed illegalities and irregularities ad infinitum in reaching at the impugned conclusion.
9. For whatever it has been stated above, I have come to the conclusion that the Courts below have acted illegally and with material irregularities in passing the impugned decisions to non-suit the petitioners. Both the impugned decrees are not sustainable at law. In nutshell the revision petition is accepted. The order and decree of the trial Court dated 28-4-2003 and the judgment and decree of the learned District Judge dated 5-11-2003 are set aside. The case will go back before the learned District Judge, Layyah who shall entrust the same to any of the Civil Judge or the Senior Civil Judge working under his command. There shall however be no order as to costs.