' MUHAMMAD AZAM KHAN, J.---This appeal, by leave of the Court, arises out of the judgment of the Azad Jammu and Kashmir High Court dated 18th April, 2006, whereby Civil Revision No, 22 of 2005 has been dismissed.
2. The necessary facts for the disposal of the present appeal are that the respondents, Shakeela Begum and others, filed a declaratory suit in the Court of Civil Judge, Mirpur, on 19th February, 2001, which was transferred to Civil Judge, Dadyal. They claimed that they are owners of half of the land falling in 'khewat. Nos. 11/11 and 12/12, situate in village Amb, Tehsil Dadyal. The defendants are co- owners. The land is presently in possession of plaintiff No,
4. They claimed that defendants Nos. 1 to 3 filed an application for the partition of the land. The plaintiffs consented for the partition. The Revenue Assistant, in derogation of conditions enumerated in the order of partition, issued partition deed (URDU TEXT) on 19th December, 1990 against law, facts, physical position, without hearing the applicants, without determining kind and quality of the land and also against determining real shares of the parties. The order is based on fraud. They challenged the order of Revenue Assistant dated 1-6-1996, order of Collector dated 13-1-1997, order of Commissioner dated 4-8-1999 and orders of Board of Revenue dated 20-5- 000 and 11-11-2000 to the extent of partition deed ( URDU TEXT) Mutation No, 63 was also challenged. It was further prayed that the Revenue Assistant, Mirpur, be directed to pass orders in accordance with law.
3. Zameer Begum and others, appellants herein, filed a suit against the rival plaintiffs for cancellation of gift-deed. Dated 2nd ,June, 1997. Both the suits were consolidated. After framing the issues and hearing the counsel for the parties, the Civil Judge, Dadyal, vide his order dated 11th October, 2004, dismissed the suit of Shakeela Begum and others on the ground that civil Court has no jurisdiction to hear and decide the case whereby proceedings before the Revenue Authorities have become final, while the other suit titled Zameer Begum and other v. Mir Afzal Khan and others was ordered to be proceeded according to law.'
4. Shakeela Begum and others, respondents herein, challenged the judgment of Civil Judge, Dadyal, in the Court of Additional District Judge, Dadyal. The Additional District Judge, Dadyal, accepted the appeal and declared that the civil Court has the jurisdiction to hear and decide the case and remanded the case to the trial Court for hearing the same from the stage it was dismissed vide judgment dated 21st March, 2005. Feeling aggrieved, the appellants, herein, filed a revision petition in the Azad Jammu and Kashmir High Court on 5th April, 2005. On objection that revision petition is not, competent, the High Court treated the revision petition as an appeal and dismissed the same vide impugned judgment on 18th April, 2006. Hence this appeal, by leave of the Court.
5. Ch. Jahandad Khan, the counsel for the appellants, contended that the appellants filed the application for partition before the Revenue Assistant. The respondents appeared before the Revenue Assistant and consented for partition of the land. In pursuance of the partition order, the partition deed{{URDU TEXT}} ( -4-4;) was issued. The respondents challenged the same before the Collector District Mirpur. On failure they filed a revision petition before the Commissioner Mirpur which was also dismissed. The revision petition and review petition filed before the Board of Revenue were also dismissed. After exhausting all the remedies before the Revenue Authorities, the respondents filed a suit before the Civil Judge whereby they challenged the decisions of the Revenue Authorities which have attained finality. The trial Court correctly reached to the conclusion that the plaintiffs, respondents herein, are precluded from filing civil suit on the ground of estoppel and acquiescence. The Additional District Judge and the High Court did not interpret the law correctly. Under section 172 of the Land Revenue Act, 1967, the civil Court has no jurisdiction to entertain a civil suit against the decisions of the Revenue Authorities. He argued that the respondents filed civil suit after 11 years of the order passed by the Revenue Assistant. It is hopelessly time-barred. Under law a civil suit can be filed after three months of the partition order and under section 146 of the Land Revenue Act if a party alleges fraud in partition proceedings, the civil suit can be filed within 9 years of the order but the plaintiffs, respondents herein, filed the suit after 11 years of order of partition. The Civil Court has no jurisdiction to entertain the suit. He relied upon a case reported as Mustafa Khan and 3 others v. Muhammad Khan and another (PLD 1978 SC (AJ&K) 75). In the referred case the question involved was estoppel and transfer of specific survey numbers. It was held that a co-sharer in possession of specific survey number can validly transfer the same if it does not exceed his overall share. The authority has no relevance to the facts of the case in hand.
6. While controverting the arguments, Ch. Lal Hussain, strenuously argued that no doubt the partition proceedings cannot be challenged in a civil suit if the same are conducted by the authorities according to the provisions of the Land Revenue Act but all the proceedings conducted in the present case by the Revenue Assistant are in derogation of the provisions of the Land Revenue Act and when the order of partition deed (URDU TEXT) offends the provisions of the Land Revenue Act, a civil suit can competently be filed by a party. He contended that the argument of the counsel for the appellants that the suit has been dismissed on the ground of estoppel and acquiescence is misconceived because the trial Court dismissed the suit only on the question of jurisdiction of civil Court. He argued that the civil Court has the jurisdiction to adjudicate the matter where the order passed by the Revenue Authorities is against the provisions of the Land Revenue Act. When the question of title is involved, section 53- of the Land Revenue Act is applicable and the party aggrieved can competently file a suit for declaration. He relied on the cases reported as Military Estate Officer and another v. Syed Qamoos Shah and 20 others (PLD 2004 SC (AJ&K) 40), Syed Shah V. Khuda Bakhsh known as Maulvi Shah and others (PLD 1954 Lah. 606).
7. We have heard the counsel for the parties, perused the record and case law referred to by the counsel for the parties.
8. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil Courts to hear, determine and adjudicate a cause by exercising their judicial power and authority. The civil Courts are granted general jurisdiction to try all suits of civil nature unless their cognizance is specifically of impliedly barred. For the purpose of determining the question of jurisdiction, the recitals in the plaint have to be considered and the question be decided on the basis of facts alleged in the plaint. The section confers wide powers in the civil Court to determine whether Court of special jurisdiction has acted in accordance with law and limits imposed upon it by law. Where the jurisdiction of civil Court is expressly barred and conferred upon special tribunal, civil Courts being Courts of ultimate jurisdiction have the jurisdiction to examine the acts of such forum whether these are in accordance with law, within sphere allotted to it by such law, illegal, mala fide or contrary to principle of natural justice. The civil Court may determine whether a judgment is obtained on the basis of fraud and a functionary has exceeded its jurisdiction and its order is a nullity in the eye of law. Where the statutory provision has not been complied with, the civil Court can set aside such judgment.
9. Under Chapter XI of the Punjab Land Revenue Act, 1967 Revenue Courts have exclusive jurisdiction to decide the question relating to the partition of land and the civil Courts cannot question the correctness of the decision of Revenue Court based on law, and valid exercise of jurisdiction, in that case the jurisdiction of the civil Courts is ousted. But if the decision is in violation of law, procedure, mala fide, based on fraud, against the statutory provisions, in violation of principle of natural justice, the civil Court has jurisdiction to entertain the suit and decide the same.
In the case titled Syed Shah v. Khuda Bakhsh known as Maulvi Shah and others (PLD 1954 Lah. 606), the partition proceedings were challenged by way of a civil suit on the allegation that no notice was issued to the plaintiffs and the partition order was the result of collusion between the defendant and Revenue Authorities which amounted to fraud. It was observed as under:- ' The learned Judge completely failed to notice that the allegations of the plaintiff if true would render the entire partition proceedings a nullity. Proceedings held in contravention of elementary principles of natural justice or of the fundamental principles of judicial procedure are no proceedings at all in the eye of law, and the Civil Courts have jurisdiction to examine them. This proposition has never been doubted in any manner and is the very foundation of all administration of justice vide Smith v. Queen (LR (1878) 3 AC 614), Secretary of State v. Mask and Co. (AIR 1940 PC 105), and Muhammad Din v. Imam Din (PLD 1947 PC 317 = AIR 1948 PC 33). It is another elementary principle of law that fraud vitiates the most solemn acts whether they are of individuals or of Courts."
' In the case titled Zafar-ul-Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan) (PLD 1960 'SC 113), while dealing with the question of ouster of jurisdiction, it was held as under:-- " If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute..."
' In the case titled Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671), it was observed as under:-- " We are quite familiar with the words 'under the Act' or 'under Chapter.... ' . No order is an order passed 'under the Act' if it was not passed in exercise of powers granted by the Act and was therefore without jurisdiction. In a particular Act the words 'under the Act' or 'under Chapter....' may not appear and words of similar import may be used. But whatever the phraseology employed, any provision in an enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction........ "
10. The plaintiffs in the present case have challenged the order of Revenue Assistant, Mirpur, on the ground that partition deed issued on 1st June, 1996 is contrary to order of partition passed on 19th December, 1990. It has been issued without hearing the plaintiffs, without notice, against law, mala fide and in violation of the provisidns of the Land Revenue Act. Had the plaintiffs challenged the correctness of the partition deed without alleging the above facts, then section 172 of the Land Revenue Act should have come in operation and in that case civil Court had no jurisdiction to entertain the suit. The plaintiffs have challenged the decision of the Revenue Authorities on the grounds which attract the jurisdiction of the civil Court and no ouster clause is attracted. The Civil Court has the jurisdiction to entertain and decide the present suit.
' The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.