' CH. MUHAMMAD MASOOD JAHANGIR, J.--- Brief facts of the case are that the petitioners/plaintiffs filed a suit for separate possession through partition, permanent injunction and mandatory injunction against the respondents with the averments that the petitioners are co-sharers in the disputed property which is fully described in paragraph No,1 of the plaint.
2. The respondents/defendants contested the suit by filing their written statement controverting the averments of the plaint. The factual area or dispute is reflected in the issues framed by the learned trial Court vide its order dated 23-9-2011. For ready reference the issues are reproduced hereunder:--- ISSUES
1. Whether this Court lacks jurisdiction to adjudicate the matter in hand? OPD
2. Whether the suit is not maintainable in its present form? OPD
3. Whether this suit is barred by law? OPD
4. Whether the suit is hit by section 11, C.P.C.? OPD
5. Whether the suit is bad due to misjoinder and non joinder of necessary parties? OPD
6. Whether the plaintiffs are entitled to separate possession after partition of the suit property by metes and bounds? OPP
7. Whether the plaintiffs are entitled to consequential relief of permanent injunction as prayed for? OPP
8. Relief.
3. Thereafter, before the evidence of the petitioners/plaintiffs started, the respondents/defendants filed an application under O.VII, Rule 11, C.P.C. For rejection of the plaint which was allowed by the learned trial Court vide its judgment dated 4-6-2012. The petitioners/plaintiffs filed an appeal before the learned lower Appellate Court which met the same fate and the learned Additional District Judge Taxila was pleased to dismiss the appeal filed by the petitioners/plaintiffs vide his judgment and decree dated 15-4-2013.
4. The petitioners/plaintiffs have assailed the impugned judgments and decrees through the instant Civil Revision.
5. The learned counsel for the petitioners/plaintiffs argued that the learned lower Courts have not exercised their jurisdiction which was vested to them rather they have exercised the jurisdiction with material irregularity and illegality. He further argued that after the framing of issues, the learned trial Court cannot reject the plaint. He further argued that for the rejection of the plaint the learned two Courts below were required to confine to the contents of the plaint- and the contents of the plaint were deemed to be admitted by the two Courts below and if the contents of the plaint do not disclose any cause of action then the learned trial Court could have rejected the plaint. The learned counsel has further argued that factual controversy is involved in the case in hand but the learned Courts below have non-suited the petitioners/plaintiffs while rejecting the plaint. The learned counsel further contends that the contents of the plaint required full dress trial but the learned two Courts below have technically rejected the plaint and non-suited the petitioners/plaintiffs.
6. Conversely, controverting the arguments and submissions of the learned counsel for the petitioners/plaintiffs, Mr. Mujeeb-ur-Rehman Kiani, Advocate, learned counsel for the respondents supported the impugned judgments and further submitted that against the concurrent findings the Civil Revision is not maintainable. He further argued that the name of the petitioners is not mentioned in the column of owners of Register Haqdaran Zameen rather the petitioners/plaintiffs are entered in the column of cultivation as vendees. He further relies on the judgment reported as "Raza Khan through Legal Heirs and 3 others v. Member, Board of Revenue, N.-W.F.P., Peshawar and others" (1999 SCM R 873) and contends that in view of the dictum laid down in the said judgilient, the petitioners/plaintiffs cannot be considered to be the owners or co-sharers in the disputed holdings.
7. I have heard the arguments of the learned counsel for the parties and have perused the record with their able assistance.
8. The contention of the learned counsel for the petitioners/ plaintiffs has force that while invoking the provisions under Order VII, Rule 11, C.P.C., only the contents of the plaint are to be considered, wherein cause of action is disclosed. Plaintiffs had a right to have a fair trial by producing the evidence and to have a judicial opinion of a Court on merits of this case. Courts have to presume that every averment made in the plaint was true, therefore, power to reject the plaint under Order VII, Rule 11, C.P.C. Must be exercised only in a clear case, wherein the Court comes to the conclusion that even if all the averments of the plaint are proved, the plaintiffs would not be entitled to any relief. I have observed that power to reject the plaint should not be exercised except in a clear case, if the plaint does not disclose cause of action. The averments of the plaint filed by the petitioners/plaintiffs apparently disclose the cause of action and the learned trial Court was not justified to reject the plaint. It may be added that the assertions made in the written statement or documents annexed with the written statement are to be ignored while deciding the application under Order VII, Rule 11, C.P.C. This is the mandate of the apex Courts of the country which has been maintained in reported judgments titled as "Abdul Waheed v. Mst. Ramzanu and others" (2006 SCM R 489) and "Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCM R 236). In the said judgments, it has been held that provisions of the Order VII, Rule 11, C.P.C, pertaining to the suits and plaints in particular would be attracted only when the plaint by itself did not disclose any cause of action and Order VII, Rule 11, C.P.C. Could not be attracted on the basis of written statement as initial burden would remain on plaintiff to prove his case on the basis of assertions made in the pleadings. The ratio of the said dictum also strengthens the submissions of the learned counsel for the petitioners that pleadings of the parties could not be taken as evidence, particularly, when its maker was not even examined in its support and cross-examined by his opponent. Provision of section 141, C.P.C. Would not attract to such applications. Substantial requirement of recording the evidence on pure and serious questions of fact could not be by- passed by unjustifiably invoking provisions of Order VII, Rule 11, C.P.C. However, such applications could not be decided on mere written statement or assertions raised by the defendant without recording of evidence. In this regard, the learned counsel for the petitioners/plaintiffs has based his foundation on the finding of this Court in a reported case titled as "Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Throshan through President Abdul Ashfaq and 21 others" (2003 CLC 335) and "Egypt Air v. Sarfraz Ahmad Tarar" (2003 CLC 1425).
' The next contention of the learned counsel for the petitioners/ plaintiffs is that after framing the issues, the rejection of the plaint is not permissible. Adverting to the issues framed by the learned trial Court, it is found that apart from issue No,7 which was framed regarding the controversy of the facts the learned trial Court also framed the issues regarding cause of action, maintainability and jurisdiction also. The proper course for the Court in such eventuality was that the learned trial Court should record the evidence and thereafter decide the preliminary as well as factual issues through its judgment. It is well-settled that term of cause of action meant bundle of facts which if traversed, a suitor claiming relief was required to prove for obtaining judgment; it did not mean that even if one such fact, a constituent of cause of action was in existence, the claim could succeed. Totality of facts must co-exist and if anything was wanting the claim would be incompetent. One part was included in the whole but the whole could never be equal to one part. So, in case of controversial questions of fact or law, the provision of O.VII, R.11, C.P.C. Could not be invoked rather proper course for Court in such cases vms to decide all the objections raised in issues after recording the evidence of the parties.
10. Both the Courts have rejected the plaint of the petitioners/ plaintiffs on the sole score that the copy of Register Haqdaran Zameen appended with the plaint depicts that the name of the petitioners/plaintiffs is mentioned in column No,4 which pertaining to the cultivators and that the name of the petitioners/plaintiffs is not mentioned in the column No,3 which pertains to the owners.
The copy of relevant Register Haqdaran Zameen has been appended with this file as Annexure-F whereas the photocopy of Annexure-F has been produced by the learned counsel for the respondents. The perusal of these documents reveals that the petitioners/plaintiffs are mentioned in column No,4 (meant for cultivators) but at the end of their names they have been recorded as vendees. It is also noted that the name of defendant No,1 is also mentioned in the same column No,4 meant for cultivator and in the end of his entry he is also shown to be vendee (Mushtri). No doubt, the name of said defendant is also appearing in the column No,3 of the Register Haqdaran Zaman. This is the moot point between the parties and both the learned counsel for the parties have extensively argued on this pivotal point. The learned counsel for the respondents has relied upon "Raza Khan through Legal Heirs and 3 others v. Member, Board of Revenue, N.-W.F.P., Peshawar and others" (1999 SCM R 873) whereas the learned counsel for the petitioners/plaintiffs has relied upon a reported judgment titled as "Amir Shah v. Ziarat Gul" (1998 SCM R 593). Both the judgments have been passed by the apex Court and for resolving the issue it will be better to reproduce the operative parts of the said judgments. First of all, I would like to reproduce the operative part of the case of Raza Khan (supra) which reads as under:- "The contention of the respondents' counsel that they have acquired right in the joint property by a mutation of sale but the same has been sanctioned in the cultivation column instead of "Malkiati" column as there was ban on sale of land, is without any substance or force. The respondents can claim remedy for such disputes in a regular Civil Court instead of asking for relief from the Revenue Officer dealing with a partition case ....". It is not the case of the appellants that any one of the observations made by the respondent-A. C. Or by the respondent-Additional Commissioner in their respective orders dated 28-2-1994 and 29-12-1994, suffers from any inaccuracy whatsoever."
11. In response to the above Raza Khan case, the operative part of the Amir Shah's case cited by the learned counsel for the petitioners/plaintiffs is reproduced as under:--- "9. The only point that survived for determination before us, therefore, is as to whether the sale out of a particular Khasra number finding its way in the column of cultivation confers a status of co- sharership on the vendee. It does not require much discussion on the point because this Court in the precedent case of Muhammad Muzuffar Khan v. Muhammad Yusaf Khan (PLD 1959 SC Pak. 9) has already held that the vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor is in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. It was further held that alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers.
10. Under the Rules contained in the Land Record Manual whenever a co-sharer in a joint khata sells a particular Khasra number of a portion in the particular khasra number, the sale is entered only in the column of cultivation containing the names of vendor and vendee and the ownership column remains unchanged.
11. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co- owner, in an undivided khata does not become a co-sharer in that khata. We have, therefore, no hesitation to hold that the respondent having purchased portions of khasra number in the column of cultivation from his co-owner/vendor became a co-owner in those khatas and on that basis he could validly lay claim to be a co-sharer and enforce his right of pre-emption on that score."
12. After analyzing both the judgments it is apparent from the judgments cited by the learned counsel for the respondents that in the Raza Khan's case the honourable Supreme Court of Pakistan held that the persons whose names are entered in cultivation column instead of "Malkiati" column could claim their remedy for such a dispute in a regular Civil Court instead of asking for relief from Revenue Officer dealing with a partition case. Alter analyzing the said judgment, the facts came on record that a partition proceedings was initiated before the revenue hierarchy which went up to the apex Court and the honourable Supreme Court of Pakistan held that in such like disputes, petition under section 135 of West Pakistan Land Revenue Act is not permissible rather such dispute can be resolved through a regular Civil Suit. In case in hand, there is a Civil suit between the parties which was rejected by the learned trial Court. In response to the Raza Khan's case, in Amir Shah's case it is held that vendee of specific plot acquired from co-owners in undivided khata, thus becomes co-owner in that khata and the said dictum has supported the version of the present petitioners/plaintiffs. The other case "Muhammad Muzaffar Khan v.
Muhammad Yusaf Khan (PLD 1959 SC Pak. 9)" cited by the learned counsel for the petitioner also strengthens his contention. The other contention of the learned counsel for the respondents/defendants that concurrent findings cannot be questioned in Civil Revision is also misconceived and without merits. In this respect, safe reliance can be placed on the reported judgment titled as "Muhammad Anwar and others. v. Mst. Ilyas Begum and others" (PLD 2013 Supreme Court 255) wherein it is held that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. This is the mandate of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 and we are not persuaded if there is any specific bar on the High Courts that while exercising its authority in term of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, no interference can be made in the Revisional orders.So, High Court can decide in which cases the interference is warranted. So, this Court is clear in mind that a vendee in joint holdings whose name is mentioned 'in the column No,4 is sharer in the joint holdings. The learned lower Courts have failed to exercise their jurisdiction so vested to them and have acted in excess of their jurisdiction illegally and with material irregularity while rejecting the plaint of the petitioners/plaintiffs. On the touchstone of the above, both the impugned judgments and decrees are hereby set aside by allowing the Civil Revision. Consequently, the plaint shall be deemed to be pending before the learned trial Court to be proceeded with purely in accordance with law.