' MRS. SYEDA TAHIRA SAFDAR, J.---Feeling aggrieved of the order dated 30th April 2009 of the Senior Civil Judge, Pishin, whereby the suit filed by the petitioners was dismissed for non-joinder of parties, and for want of jurisdiction, and judgment dated 22nd July, 2009 of District Judge, Pishin, whereby the appeal preferred was declined, resulted in filing of the instant petition. The petitioner questioned both the judgments while contending that the courts below not only failed to discuss the factual controversy between the parties, but also ignored the material facts, and circumstances of the case, thereby committed error. Further, the fact that their (petitioners') title of being owners of the property in question was uncontested, the suit was decided in haphazard manner on hearing of the parties only on the legal issues, which cannot be done. Furthermore, the courts below over looked the fact that without producing of evidence it cannot be ascertained that the suit filed by them (petitioners) was baseless, and filed with misconceived contentions.
Therefore, the orders of the courts below were result of misreading, and non-reading of the facts, and circumstances of the case, and also failed to fulfill the legal requirements. It was contended that the courts below decided the matter on mere technicalities instead of giving findings on merits of the case, thereby erred in law. It was prayed that both the judgments be set aside, and case be remanded to the trial court for deciding it after recording of the evidence.
2. The learned counsel for the parties was heard at length. It was argument of the learned counsel for the petitioners that the courts below dismissed the suit on ground of non-joinder of necessary party, the findings were in clear violation of Order I Rule 9 Civil Procedure Code (C.P.C.). It was further his argument that civil court had the jurisdiction in the matter, because the suit was for cancellation of mutation entry, with plea of fraud, and misrepresentation, therefore, need evidence.
The learned counsel urged that the suit might have been decided on merits, instead of its dismissal on initial stage on mere technicalities. He placed reliance on:-- ' Abdul Qadir v. Sher Muhammad 2010 MLD page 1596 Hassan Shah v. Settlement Officer 2007 CLC page 1609 The learned counsel concluded that it is a case. F remand.
3. In reply thereof the learned counsel for the respondents raised objection on maintainability of the instant petition with contention that the petition is not maintainable for want of filing of relevant documents. It was further his argument that the civil court lacks jurisdiction in the matter due to the fact that the title of the petitioners in respect of the suit property was not denied by the other party, rather the factual controversy between them was of demarcation of their respective shares.
The learned counsel placed reliance on:- ' Muhammad Yousaf v. Karam Elahi 2006 YLR page 1196 ' Syed Mahboob Ali Shah v. Federation of Pakistan 2011 CLC page-907 ' Farzand Ali v. Fateh Muhammad 2005 CLC page 1223 Muhammad Idress v. Muhammad Pervaiz 2010 SCMR page 5 Bore Muhammad v. Mst. Aziza Begum 2003 PLD Kar. 466 ' Tahir Hanif v. Member Board of Revenue 1982 CLC Lahore 1732 ' The learned Additional Advocate General only stated that there was no dispute of title between the parties, therefore, the parties were required to approach the competent forum under the Revenue Laws. In reply it was only contention of the learned counsel for the petitioners that the suit was wrongly dismissed, if there was lack of jurisdiction either the plaint be rejected, or be returned instead of dismissal of the suit.
4. The facts as appeared from the papers attached with the petition that a suit for declaration, cancellation of mutation Entry No,504, and permanent injunction was filed by the present petitioners/plaintiffs. The suit property was described as land pertaining to khasra No,201, measuring 26 rods, 22 poles. The petitioners claimed declaration of title of ownership in suit land, with further prayer of cancellation of mutation entry No,504, claimed to had been effected in the name of one Nazeer Ahmed. In reply thereof defendants Nos.1 and 2/present respondents Nos.1 and 2 raised objection on maintainability of the suit being barred under section 172 of the Land Revenue Act, 1967 (hereinafter referred as Act, 1967), with further objections on legal, and factual side. On merits though they admitted the plaintiffs/ petitioners being co-sharers along with them in the property, total measurement of which was described as 531 rods and 7 poles. But, with further assertion that the mentioned property was already partitioned between the shareholders, consequent thereof each one of them were in possession of their respective shares. It was also their plea that the matter remained sub judice before the Revenue forum, whereby inquiry was held, and it was determined that the petitioners/plaintiffs were owners only to the extent of 26 rods 22 poles, with further determination that an area of 9 rods 36 poles in excess of their (petitioners') share were in their possession. They (respondents Nos.1 and 2) asserted to be owners of the mentioned excess area. There was also a reference to order of the Executive District Officer (Revenue). Pishin in respect of demarcation, and separation of shares of the parties, proceedings whereby had been completed. With further assertion that the said order/ demarcation was challenged, but dismissed through order dated 12th June, 2007. In addition a specific plea was raised to the effect that in khasra No,201, the questioned entry, the share of the petitioners was not 26 rods 22 poles, rather in all the five Kitas their share consisted of 26 rods 22 poles.
5. The trial court framed issues on 26th September, 2007. Issue No,1 was jointly framed for all the legal objections raised in the written statement, while the remaining issues pertained to the merits of the case. The record further revealed that the trial court after hearing the parties decided two objections, pertaining to non-joinder of necessary parties, and lack of jurisdiction through order dated 30th April.
2009. While deciding both the objections in affirmative, dismissed the suit being not maintainable.
The appellate court through judgment dated 22nd July 2009 through concurred with the findings of the trial court, but further held that as the proceedings were held by the Revenue Authorities, and an order dated 12th June, 2007 was made during the course, which was not challenged by the appellants/plaintiffs (present petitioners) before the proper forum, therefore, the suit was rightly rejected. Because, the petitioners/plaintiffs were required to file an appeal against the order to the Revenue Authorities for purpose of demarcation of the property. The courts below dismissed the suit while applying the provisions of Section 172 of the Land Revenue Act, 1967.
6. Though there is a complete bar on jurisdiction of a civil court in the matters provided in the section 172 of the Act, 1967, but with certain exceptions. Section 53 of the Act, 1967 is an example whereby an aggrieved person is allowed to file a suit for declaration to establish his title, being aggrieved of an entry in the Revenue Record. Section 141 of the Act, 1967 is also an exception to A section 172 of the Act, 1967. Further, defining of boundaries surely exists in the powers of the Revenue Officer, but under section 117 of the Act. 1967 also include the name of "any court" in addition to Revenue Officer, or Forest Settlement Officer, who have already determined the boundaries. But, these legal provisions were missed by the courts below, who only confined themselves to section 172 of the Act, 1967.
7. Furthermore, in their written statement defendants/respondents Nos.1 and 2 referred to an order of Executive District Officer (Revenue), Pishin dated 12th June 2007, whereby the matter was decided by the Revenue Forum. The appellate court while placing full reliance on the order arrived to the conclusion that civil court had no jurisdiction. But, it seemed that the appellate court did not go through the order. This order is available in the case file, along with other documents filed by respondent No,
1. The contents of the order disclosed that the appeal filed by petitioner No,3 in the court of Executive District Officer (Revenue)/Collector, Pishin was dismissed, but with further direction. {{URDU TEXT}} There was no decision of the matter by the concerned Authority; rather there was a direction to the parties concerned to approach the civil court for determination of their right in respect of possession of the disputed land. This order had already attained finality, as none of the parties approach the higher forum for setting aside of the same. In view of the fact the petitioners rightly approached the civil court for redressal of their grievance.
8. It is to be noted that, both the parties though claimed themselves to be the shareholders in the questioned property, and to be in possession of their respective shares on the basis of some private partition, which had not yet been made official. But, still a dispute exists between the parties in respect of the area of the land in possession of the petitioners, who alleged to be in excess of their share. The entitlement of both the parties in the land in question is to be determined by a court of general jurisdiction. Same is the case with cancellation of mutation entry effected in favour of Nazeer Ahmed, which was described to be as.. a result of fraud, and misrepresentation. Only a civil court of general jurisdiction can decide this issue, and, grant relief thereof. The judgments relied on by the learned counsel for the respondents Nos.1 and 2 are not attracted in case in hand, thus of no help.
9. As far as non-joinder of said Nazeer Ahmed is concerned. As a specific relief had been claimed against him therefore, he was a necessary party, and in his absence no effective decree can be passed in the matter. To this extent the findings of the trial court was correct, but, dismissal of suit on its basis was an erroneous decision. Because, in presence of a specific provision i,e, Order I Rule 9, C.P.C. No suit shall be defeated by the reason of misjoinder and non-joinder of parties. This rule empowered a court to implead a person to the proceedings, who deemed to be necessary for determination of matter in issue. The courts below erred in law while deciding it contrary.
10. In view of the above discussion it is determined that civil court had jurisdiction, to entertain the case in hand while the orders of the courts below were erroneous, therefore, liable to be set aside.
The petition is hereby accepted. The judgments dated 30th April 2009 of Senior Civil Judge, Pishin, and judgment dated 22nd July 2009 of District Judge, Pishin are hereby set aside. The case is remanded to the trial court with- direction to get amend the plaint by making Nazeer Ahmed as defendant to the suit, and thereafter, proceed with the matter strictly in accordance with law.
' As it is a quite an old matter, therefore, the trial court is directed to conclude the same within a period of six months from the date of this order. There shall be no orders as to costs.