' SHUJAAT ALI KHAN, J.-- Through this revision petition the petitioner has assailed order and decree dated 30-11-2012, passed by the learned Civil Judge, Khanewal, as well as judgment dated 11-12- 2013 passed by the learned District Judge, Khanewal.
2. Succinctly, the facts, necessary for disposal of instant petition, are that Muhammad Zafar, predecessor-in-interest of the petitioner, instituted a suit seeking declaration inter alia to the effect that he being co-sharer with Muhammad Sadiq, respondent No,1, was owner of a chunk of land which was being used for residential/ commercial purposes hence was not amenable to the jurisdiction of the revenue authorities under the provisions of West Pakistan Land Revenue Act, 1967 (hereinafter to be referred as the Act), thus, the proceedings conducted by the revenue authorities regarding demarcation/partition of the said property and final order dated 29-8-2005 passed by the Tehsildar Kabeerwala, District Khanewal, was patently illegal, unlawful and without jurisdiction.
The said suit was contested by the respondents. During the pendency of the said suit the learned trial Court appointed Local Commission to know exact nature of the property and upon submission of report respondent No,1 filed application under Order VII, Rule 11, C.P.C. For rejection of plaint of the suit filed by predecessor-in-interest which was allowed by the learned trial Court vide order and decree dated 30-11-2012 and the plaint of the suit was rejected. Aggrieved by the said order the present petitioner filed an appeal before the learned District Judge, Khanewal, which was dismissed vide judgment dated 11-12-2013; hence this petition.
3. The formulation of the arguments by learned counsel for the petitioner can be summed up in the words that as the property was not agricultural, the revenue authorities had no jurisdiction to proceed with the application filed by respondent No,1 for demarcation/partition of the property; that though the suit was filed by predecessor-in-interest of the petitioner in the year 2005 but rejection of plaint thereof by the learned trial Court in the year 2012 does not seem to be reasonable; that both the courts below failed to appreciate that essentials necessary for rejection of plaint of suit were missing in the application filed by respondent No,1; that law favours adjudication of cases on merits instead of technicalities; that though valuable rights of the petitioner are involved but he has been knocked out while taking aid of technicalities; that while passing the impugned judgment both the courts below have failed to apply the law on the subject in its true perspective. In support of his contentions, learned counsel has relied upon the cases reported as Province of Punjab through Collector District Khushab Jauharabad and others v. Haji Yaqoob Khan and others (2007 SCM R 554), Sher Muhammad v. Muhammad and others (2006 PSC 516), Ghulam Ali v. Asmat Ullah and another (1990 SCM R 1630). Mehram Khan and others v. Fateh Khan and others (1983 SCM R 366), Mir Liaq Khan v. Sarfraz Khan (2013 M LD 1449), Dr. Jalal Khan v.
Qazi Naseer Ahmed and 6 others (2005 M LD 814) and Pervez Ahmad Khan Burki and 3 others v.
Assistant Commissioner, Lahore Cantt. And 2 others (PLD 1991 Lahore 31).
4. Conversely, learned counsel for respondent No,1, while defending the impugned verdicts of both the courts below submits that after passing of order dated 29-8-2005 by the Revenue Officer, Kabeerwala, District Khanewal, the petitioner filed an appeal before the higher authority in the revenue department thus he was debarred to file civil suit on the same cause of action; that according to the report submitted by the Local Commission the property in question was agricultural in nature and the jurisdiction of the revenue authorities was aptly attracted; that the petitioner cannot be allowed to switch over from one remedy to another rather he should confine to the remedy already availed by him. In support of his contentions learned counsel has relied upon the cases reported as Abdul Khaliq (deceased) through L.Rs, and others v. Ch. Rehmat Ali (deceased) through L.Rs, and others (2012 SCM R 508), Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad (2012 SCM R 730) and Mir Liaq Khan v. Sarfraz Jehan (2013 M LD 1449).
5. Learned Assistant Advocate General submits that as the property, according to the revenue record, was amenable to the jurisdiction of the revenue authorities, the application filed by respondent No,1 was rightly decided by respondent No,4.
6. Learned counsel for the petitioner while exercising his right of rebuttal submits that respondent No,1 is estopped to take the plea that the suit property was agricultural in nature inasmuch as in the written statement filed by him in the suit he specifically pleaded that the land purchased by father of the present petitioner from Muhammad Akhtar was in fact residential and the same was incorrectly incorporated in the revenue record as agricultural.
7. I have heard learned counsel for the parties at considerable length and have also gone through the documents appended with this petition in addition to the case-law cited at the bar.
8. A perusal of suit filed by predecessor-in-interest of the petitioner shows that he assailed validity of proceedings conducted by the revenue authorities regarding demarcation/partition of the property in question on 23-7-2005 and the subsequent order passed by the Tehsildar Kabeerwala, on 29-8-2005. The following lines under ground " "of the plaint are of paramount consideration:-- {{URDU TEXT}} ' A perusal of afore quoted lines shows that against final order dated 29-8-2005, passed by respondent No,4, the petitioner already availed remedy of appeal before the revenue hierarchy.
There is no cavil with the proposition that in terms of section 9 of C.P.C. Civil courts are considered as courts of ultimate jurisdiction and they can adjudge veracity of order passed by the revenue authorities irrespective of availability of remedy of appeal or revision before higher forums but at the same time it is equally true that when a person chooses to avail the remedy under the Act by way of appeal/revision, he cannot be allowed to simultaneously invoke the jurisdiction of A Civil Court against the same order. Even according to the case of Mir Liaq Khan (supra), referred by learned counsel for the petitioner, when a party resorts to any one of the available remedies he is barred to avail the other one.
9. It is expedient to mention over here that claim of the petitioner in the suit originally filed by his father was that the property purchased by respondent No,1 was totally different from that of being owned and possessed by the plaintiff. And the property purchased by respondent No,1 being agricultural in nature had nothing to do with the property possessed by the plaintiff but the said fact stands negated from the opening two lines of the plaint wherein it has been mentioned that the plaintiff as well as respondent No,1 are co-sharers in Khewat No,2/2 when according to own showing of the plaintiff he was jointly owner with respondent No,1 how the Civil Court was competent to render the decree in favour of the plaintiff declaring that he is exclusive owner of the suit property as until and unless the property is formally partitioned every co-shares is considered as owner of every inch of the land.
10. Now coming to the contention of learned counsel for the petitioner that as the property was not agricultural in nature, therefore, jurisdiction of the revenue authorities was barred, I am of the view that according to the report submitted by the Local Commission, appointed by the learned trial Court during the course of proceedings of the suit, the suit property is agricultural in nature as wheat crop was; cultivated there whereas father of the present petitioner was owner only to the extent of 10-Marlas in the said Khata. In this situation, the stance of the petitioner is not worth consideration.
11. As far as plea of the petitioner that after himself admitting the nature of the suit property as residential in the written statement filed by him in the suit, respondent No,1 was debarred to agitate that the land in question was agricultural in character is concerned, suffice it to observe that the 10-Marlas of residential property does not render the entire suit property as residential rather to prove the same the petitioner was bound to produce evidence of unimpeachable character.
12. Now coming to the case-law cited by learned counsel for the petitioner, I am of the view that the same is not applicable to the facts and circumstances of the case inasmuch as in the case of Mir Liaq Khan (supra) it has been held that in the event of two remedies when a party chooses to avail one of them the second becomes redundant and the party cannot be allowed to switch
13. Over to the alternate remedy especially when he has already availed the same. As far as the case of Sher Muhammad (supra) is concerned, the apex Court of the country laid law to the effect that when the order passed by the revenue authorities is patently illegal or void, the aggrieved party can straightaway approach the Civil Court despite availability of remedy of appeal or revision before the revenue hierarchy but the said case stands distinguished from the present case for the reason that the petitioner has already availed the remedy of appeal before the revenue hierarchy even before filing of the suit. The case of Province of Punjab through Collector District Khushab, Jauharabad and others (supra) deals with validity of Roznamcha Waqiati in absence of any valid order of allotment whereas in the case of Ghulam Ali (supra) it was held that while dealing with an application filed under Order VII Rule 11 C.P.C. Court can only see contents of the plaint. If we adjudge case of the petitioner on the touchstone of the said judgment, as the factum of filing of appeal has been admitted by the petitioner in his suit, the plaint was rightly rejected by both the courts below. As far as the cases of Mehram Khan and others, Dr. Jalal Khan and Pervez Ahmad Khan Burki and 3 others (supra) the question was regarding jurisdiction of the revenue authorities qua demarcation of land which was being used as residential. In the present case the report of the Local Commission shows that some of the portion comprised of construction by any one of the party but the rest being totally agriculture in nature, jurisdiction of the revenue authorities was aptly attracted. Further, as appeal of the petitioner is pending before the revenue hierarchy, the said question would be attended to by the forum seized of the same while deciding the same.
13. Even otherwise, concurrent findings of facts cannot be upset by this court in its revisional jurisdiction in a casual manner rather it has to be proved that the same are perverse or arbitrary or the same are based on misreading or non-reading of evidence, which is not the position in the instant case. In this regard, reference can safely be made to the case reported as Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCM R 5).
14. For what has been discussed above, I see no force in this petition which is accordingly dismissed. However, a direction is issued to the D.D.O. (R)/Assistant Commissioner, Kabeerwala, to decide the matter pending before him within a period of three months positively without being influenced by any observation without being influenced by any observation made in this order.
Office is directed to transmit a copy of this order to the Additional District Collector (R) Khanewal for compliance.