' The appellants in this Regular Second Appeal are Muhammad Sharif and another. They filed a suit against the respondents, Mst. Rasool Bibi and eight others, in regard to certain land which was originally the joint property of the parties. In that suit, the appellants had challenged the validity of a partition of the said land which had been ordered by a Tehsildar. It was alleged by the appellants that before the said partition was effected by the Tehsildar, the parties had partitioned the property privately and were in possession of the land which had fallen to their respective shares as a result of the private partition. The land which, in view of the averments of the appellants, had been taken possession of by the appellants in consequence of the private partition included the land of Khasra No, 1010 and half of the land of Khasra No, 1012 but the respondents had obtained possession of the said land on the score of the partition ordered by the Tehsildar. The appellants, therefore, prayed for a declaration to the effect that the mutation by which the partition was ordered by the Tehsildar was against law and facts. By way of consequential relief, they also asked for possession of the land of Khasra No, 1010 and half of the land of Khasra No, 1012.
2. The plaint of the suit brought by the appellants was rejected by the Civil Judge, Narowal, District Sialkot, before whom the said suit was filed. The 'view taken by him was that their suit was barred by clause (xviii) of subsection (2) of section 172 of the West Pakistan Land Revenue Act, 1967, hereinafter referred to as the said Act. The order of the learned trial Court was challenged by the appellants by means of an appeal before an Additional District Judge but in vain. They have, therefore, come up in second appeal to this Court.
3. Learned counsel for the appellants contended that since the appellants bad assailed the partition ordered by the Tehsildar on the basis of title derived by them in pursuance of the private partition which, according to them, had been effected before the partition was made by the Tehsildar, the appellants' suit was not hit by the aforementioned provisions of the said Act. He relied on Din Muhammad and 6 others v. Mehr Ali Khan and 2 others (I) to support his argument.
4. In reply, it was urged by the learned counsel for the respondents that no private partition of the disputed property had taken place before the partition in question was ordered by the Tehsildar and, therefore, the appellants' plaint was rightly rejected by the learned trial Court.
5. {{FOOT NOTE}}
(1) PLD 1978 Kar. 267 {{FOOT NOTE}}
5. Relevant provisions of section 172 of the said Act reads as follows: "172.-(1) Except as otherwise provided by this Act, no civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take cognizance of the matter in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generality of the provisions of subsection (1), a civil Court shall not exercise jurisdiction over any of the following matters-namely :- (xviii) any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought ; It is, therefore, evident that if the partition ordered by the Revenue Officer is challenged by means of a suit by raising the question as to title such suit is not barred by the above-quoted provisions of clause (xviii). By advancing the plea of private partition the appellants had also asserted that they had acquired title to the property which had fallen to their share as a result of the said partition.
Thus, they had assailed the partition ordered by the Revenue Officer (Tehsildar) by raising the question as to title in that land in dispute. It has been held in Radhu v. Mst. Nandu and another (1) and Malang v. Mst. Namitti and others (2) that when the plea of private partition is raised it involves a question of title. It has also been ruled in the case of Din Muhammad and 6 others, relied upon by the learned counsel for the appellants, that when in a suit any property is claimed on the basis of a private partition, the suit is not barred by clause (xviii) of subsection (2) of section 172 of the said Act Respectfully following the law laid down in the aforesaid precedent cases, I hold that in view of the statement of the appellants, as recorded in the plaint, the suit was not hit by clause (xviii).
6. No doubt the respondents had denied that the disputed land had been privately partitioned before its partition was ordered by the Tehsildar but the learned Civil Judge could not decide the controversy between the parties in regard to the private partition without framing an issue in this behalf and recording the parties' evidence thereon. For the purpose of rejecting the plaint he had to take into account the contents of the plaint only and not the pleadings of the respondents in defence of the suit. This is exactly what is contemplated by the provisions of clause (d) of rule 11 of Order VII of the Code of Civil Procedure. Since according to the averments of the appellants {{FOOT NOTE}}
(1) 150 P R 1890 (2)4 P R 1898 {{FOOT NOTE}} ' as embodied in the plaint, namely, that as a result of the private partition they had acquired title to some of the property which had been partitioned by the Tehsildar, their suit was not barred by clause (xviii) of subsection (2)c of section 172 of the said Act, the learned trial Court had erred in rejecting the plaint under clause (d) of rule 11 of Order VII of the Code of Civil Procedure.
7. In this view of the matter, I accept the appeal with costs, set aside the orders of the two Courts below and remand the case to the learned trial Court with the direction that it shall hear and decide the same afresh in the light of the above observations and according to law.