MUHAMMAD NASIR MAHFOOZ, J.- Impugned herein is the judgment and decree dated 25.6.2013 passed by learned Additional District Judge, Karak at Takht-e-Nasrati, whereby he allowed the appeal and has set aside the judgment and decree dated 12.11.2012, passed by learned Civil Judge-II, Takht-e-Nasrati, Karak.
2. Brief facts of the case are that 15.7.2008 petitioners Raisham Khan etc filed a suit for possession through partition of landed property bearing Khasr a Nos. 87, 92 to 95 of Mouza Takht-e-Nasrati, Karak for proper utilization of their respective share.
3. Respondents No.30 to 41 and 50 resisted the suit by submitting written statement, raising therein many legal and factual pleas. From the pleadings of the parties, issues were framed, pro and contra evidence was recorded.
After hearing learned counsel for the parties, the learned Civil Judge-II, Takht-e-Nasrati, Karak dismissed the suit of petitioners/plaintiff vide its judgment and decree dated 26.11.2010. The petitioners preferred appeal against the judgment and decree dated 26.11.2010 before the learned Additional District Judge, Takht-e-Nasrati, which was accepted vide judgment and decree dated 15.02.2012 and case was remanded with the direction to file amended plaint and to enter entire joint property belonging to the parties.
4. After remand petitioners filed amended plaint in the learned trial Court. The defendants contested the same and evidence of both the parties was recorded. The learned trial Court after hearing both the parties decreed the suit of the petitioners vide judgment and decree dated 12.1 1.2012.
5. Feeling aggrieved respondents No.1 to 30 filed appeal before the learned appellate Court, who after hearing both the parties, accepted the appeal and set aside the judgment and decree dated 12.11.2012 vide its judgment and decree dated 25.6.2013. Hence, the instant revision petition.
6. I have heard arguments of learned counsel for the parties and perused the record.
7. Before discussing the evidence produced by both the parties it is necessary to refer to definition of Revenue Court as provided in section 5 of the Code of Civil Procedure.
"5. Application of the Code to Revenue Courts. (1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the Provincial Government may, by notification in the official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the Provincial Government may prescribe.
(2) 'Revenue Court' in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.
It implies that the revenue officer not exercising the jurisdiction under the Tenancy Act, is not a revenue Court but exercises limited powers within the contemplation of Land Revenue Act as a revenue officer and not as a Court. The Code of Civil Procedure is not applicable to partition proceedings under the Land Revenue Act, whereas Civil Court entertaining the suit for partition would have vast powers under the Code of Civil Procedure. In this respect Order 20 rule 18 of C.P.C which is reproduced herein:- "O XX R.18. Decree in suit for partition of property or separate possession of a share therein.-- Where the Court passes a decree for the partition of property or for the separate possession of a share therein then,--
(1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazette subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;
(2) If and in so far as such decree relates to any other immovable property or to movable property the Court may, if partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."
The word "Court", used in this order obviously refers to order passed by Civil Court, as the preamble of the Code of Civil Procedure, 1908, provides to consolidate and amend the laws relating to procedure of the Courts of civil judicature.
8. Sub-rule-1 of Rule-18 reproduced above could not be interpreted in any other manner except that a civil Court can entertain a suit for partition relating to an estate assessed to the payment of revenue, wherein rights of joint owners shall be ascertained and the Court shall direct such partition or separation to be made by the Collector or other gazetted sub-ordinate of the Collector, whereas sub-rule-2 relates to any other immovable property. In both the cases it is the Civil Court which has got jurisdiction to entertain a suit for partition, if the joint property to be partitioned consists of construction and landed property, because jurisdiction of revenue forum under the Land Revenue Act though vests for partition of landed property but where there is no construction raised over it. Since the Code of Civil Procedure is not applicable to the revenue forum exercising powers under the Land Revenue Act as held by august Supreme Court in case reported as (PLD 2009 SC 198), so the only forum for entertaining a suit for landed as well as constructed property jointly owned by the parties, which is not yet partitioned, is the civil Court. The only alternative for separation of shares is that the Collector shall be directed under section 54 of the Code of Civil Procedure.
9. Under section 70 of the Code of Civil Procedure the Provincial Government may make rules consistent with the execution of decrees in cases in which a Court has ordered an immovable property to be sold or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind, or interested in immovable property shall be transferred to the Collector. But it has been conditioned by declaration by the Provincial Government through a notification. Moreover, the Provincial Government may also make rules consistent with the provisions of section 70 of the Code of Civil Procedure.
Section 70 is reproduced below:- "70. Rules of procedure. (1) The Provincial Government may make rules consistent with the aforesaid provisions-
(a) for the transmission of the decree from the Court to the Collector , and for regulating the procedure of the Collector and his subordinates in executi ng the same, and for re-transmitting the decree from the Collector to the Court;
(b) conferring upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector;
(c) providing for orders made by the Collector or any gazetted subordinate of the Collector , or orders made on appeal with respect to such orders, being subject to appeal to, and revision by, superior revenue authorities as nearly as may be as the orders made by the Court, or orders made on appeal with respect to such orders would be subject to appeal to, and revision by, appellate or revisional Courts under this Code or other law for the time being in force if the decree had not been transferred to the Collector .
(2) Jurisdiction of Civil Courts barred. A power conferred by rules made under sub-section (1) upon the Collector or any gazetted subordinate of the Collector or upon any appellate or revisional authority, shall not be exercisable by the Court or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court."
10. The aforesaid provision also provides that a civil Court can transmit a decree to the Collector for execution.
Under sub-rule-2 jurisdiction of a civil Court is barred only if provincial Government has framed rules in accordance with section 70(1) and not to entertain a suit where a Collector or any gazette sub-ordinate of the Collector is empowered by rules.
11. In the instant case petitioners had filed a suit for partition of the Khasra numbers as mentioned in heading of the plaint. Learned trial Court had granted a preliminary decree for partition but in appeal learned appellate Court reversed the said judgment and decree on the ground that the suit is barred under section 172 of Land Revenue Act and returned the plaint under order 7 rule 10 to be filed before the revenue Court.
12. The course adopted by learned appellate Court is full of contradiction because when the parties are admittedly joint owners and if only a single joint owner wants to separate his share through official partition, his suit could not be dismissed but after determining the shares of joint owners a preliminary decree for partition must be passed, invariably. It is also relevant to mention that the question of jurisdiction has been finally determined by the predecessor of learned appellate Court when case was remanded and it was held that the learned trial Court has got jurisdiction then learned appellate Court through the impugned order travelled beyond its jurisdiction. In any case, if certain joint property is not included in a suit for partition the Court is obliged to permit a plaintiff through amendment in the plaint and including the left out suit property as it is the essence of a suit for partition that the dispute between the parties must clinch all the disputes once for all, so that the parties may in a peaceful manner enjoy usufruct of their respective shares after final partition.
13. Learned appellate Court has committed material illegality and irregularity by allowing the appeal and returning the plaint for lack of jurisdiction, which has perpetuated their agonies after coming to the Court instead of putting an end to their agonies. It also requires to be mentioned, that while effecting partition between the parties utmost care is to be taken that the construction raised by any joint owner is considered in his share without disturbing but it would not mean that if any joint owner is in possession of excess share than to which he is entitled, he would continue to be in possession of the excess shares rather he has to part away with and get adjustment from possession of his share in other property, so that no joint owner gets lesser share than his actual entitlement. In this regard reference is made on judgments Isam Gul through his son and General Attorney Vs. Mir Khan and 17 others" ( 1997 SCMR 1282 ), wherein it has been held that:- "The learned High Court, therefore, set aside the judgment and decree of both the Courts below on the ground that the petitioners being an owner in the suit land his suit should not have been dismissed in respect of the suit land excepting Khasra No.3657 (3 Kanals, 15 Marlas) and the suit should have been decreed to the extent of his share in the suit land of which he was in possession as 'Hissadar' through family arrangement which is always subject to regular partition. "
In case titled "Muhammad Arif and others Vs. Nawab and others" ( 1997 SCMR 1792 ), it has been held that:- "6. We are, however , inclined to adopt the view taken by the learned Division Benc h in the case of Ghulam Rasul (supra) and while approving it we hold that the Civil Courts had the jurisdiction to try the suit notwithstanding the provisions of section 172(2)(xviii) of the West Pakistan Land Revenue Act (XVII of 1967) which ousts the jurisdiction of Civil Court in respect of partition of any 'holding'. A Revenue Officer, therefore, does not have any jurisdiction to entertain an application for the partition of the property which has ceased to be 'land' in the restricted meaning that has been given to this expression in the Punjab Tenancy Act, 1887 wherein 'land' means any land occupied or let for agricultural purpose or for propose subservient to agriculture or for pasture and includes the site for building other structures on such land. But there is nothing to show that this definition has been adopted for the purpose of Land Revenue Act as well. The real test, therefore, is whether the land has lost all the characters of agricultural land and has instead assumed its importance as a commercial property . "
In case titled "Mst. Akhtari Begum through Shahid Hussain and others Vs. Javaid Sadiq and others (2004 SCMR 802 ), the Hon'ble Supreme Court has observed that:- "While dismissing the Civil Petition No. 1122 of 1975 by this Court, it was observed that the disputed property had been partitioned with the consent of all the occupants. Thereafter , they raised walls around their respective portions and ever since are living therein. The petitioners s have unnecessarily embroiled the parties in this uncalled for litigation simply on the issue of extent of their possession which was settled as far back as in the year 1960. We fail to understand how this possession, which was effected through consent of all the occupants, could now be disturbed after more than four decades . As already stated the parties after securing allotment orders raised respective walls around their units. "
In case reported as (2010 SCMR 786) titled "Brig. (R) Sher Afghan Vs. Mst. Sheeren Tahira and 6 others" the august Supreme Court has held that:- "19. Since the respondent/plaintif fs have been deprived of their inherited share in the suit property since 1981, we are persuaded to direct the learned Executing Court to ensure that if an application for execution of this judgment is made, the same is decided within three months of its presentation. "
14. In the light of my above findings, the instant revision petition is allowed. The impugned judgment and decree of learned appellate Court is set aside and the judgment and decree of learned trial Court is restored.