' Through the instant revision petition, Wali Dad Khan and Ali Mardan, petitioners, has filed the present revision petition against the judgment and decree dated 14.05 2008, passed by learned Civil Judge-I, Abbottabad, whereby the plaint was rejected under Order VII Rule 11, CPC and the judgment and decree of the learned Additional District Judge-III, Abbottabad dated 19.06.2009 vide which the judgment and decree of trial Court was upheld.
' Arguments heard and record perused.
2.A perusal of record reveals that the petitioners filed a suit for declaration to the effect that they are owners in possession of the property and partition Mutation No, 8280 attested on 1.11.2005 on the basis of partition proceedings in Suit No: 23 decided on 1.10.2005, is wrong, illegal and ineffective upon their rights. Possession and perpetual injunction was also sought as consequential relief. An application on behalf of Defendants No, 1 to 13 was moved on 1.4.2008 under Order VII Rule 11, CPC, for rejection of plaint, which was contested by the plaintiffs and the plaint was rejected by trial Court on 14.5.2008 with the observations that the jurisdiction of Civil Court is completely excluded in terms of Section 172 of West Pakistan Land Revenue Act, 1967. It was also observed that as the matter has already been decided by the Revenue Court therefore in peculiar circumstances of case, the plaint is to be rejected instead of return of plaint.
3.The learned Court for appeal has not taken pain to give its own findings in the light of available record and instead opted to agree with the findings of trial Court without any justification. The appellate Court has decided the lis in a slipshod manner and as such has failed to perform the duties entrusted by the statute for disposal of case on merits and conclusion 'arrived at in this regard are in disregard of Order XLI Rule 31, CPC and as such not maintainable.
4.Though the partition proceedings are six in numbers' were decided on the basis of compromise whereupon the mutation for partition N. 8280 dated 1.11.2005 was attested. However the grievance of petitioners is that the Tatima was curved against the rights of petitioners/plaintiffs and, they have been deprived of their valuable rights agreed to be given by dint of compromise to them by respondents. Serious allegations levelled in the plaint are to be looked into by the Court which is not possible without recording evidence. There is no other forum available for petitioners for redressal of their grievance as order passed on the basis of compromise was not assailable before higher form in revenue hierarchy. The only course left with the plaintiff was to approach the Civil Court. as they have been defrauded' allegedly and in case they failed to prove, the matter would meet the logical end ultimately. However at this juncture without recording evidence, it cannot be determined as to whether the allegations levelled in the contents of plaint, are based on facts or otherwise.
5. It is pertinent to mention that for attracting provision, Order VII Rule 11, CPC, the contents of plaint are to be looked into on the face of it without any reference to the defence and if the contents of plaint are taken into consideration, it does discloses cause of action and is not barred by any 6.. So far as the observation that Order VII Rule 11, CPC is applicable instead of Order VII Rule 10, CPC, made by the Courts below are misplaced for the reason that whenever jurisdiction of Civil Court is ousted by a particular statute, only plaint can be returned, procedure for which has been given and the plaint cannot be rejected on the score of lack of jurisdiction. Similarly the observations that Revenue Court has given findings would attract the provision of Order VII Rule 11, CPC, for rejection of plaint is also misplaced as both the forums have separate jurisdictions to entertain the matters and in no eventuality the findings of revenue hierarchy can be considered for attracting the provision of Order VII Rule 11, CPC in proceedings before Civil Court.
7. For the aforesaid reasons, I allow this petition, set aside the impugned judgments of both the Courts below and remand the case to the trial Court for decision afresh on merit strictly in accordance with law. Parties are directed to appear before the trial Court on 15.04.2015.