' This revision petition under section 115, C. P. C. Arises out of an order dated 7-11-1979 of the learned District Judge, Rahimyarkhan, whereby he accepted the appeal against the order dated 19-4-1979 of the learned Civil Judge, 1st Class, Rahimyarkhan, and issued injunction restraining the defendant No, 1 from continuing with the partition proceedings till the disposal of the suit.
2. The relevant facts of the case are that Raja Mahfooz Ali, respondent No, 1, instituted a suit for declaration in respect of the suit land to the effect that the partition proceedings were illegal, mala fide, void and ineffective as against his rights with consequential relief by way of injunction restraining the defendants from interfering in his possession and further proceeding with the partition of the suit land. Alongwith the suit he filed an application for temporary injunction. The learned Civil Judge, vide his order dated 19-4-1979 partially accepted the application for temporary injunction and restrained the defendants from interfering in respondent's possession over the land in dispute by way of partition proceedings. He, however, did not pass any order with regard to the partition proceedings. The order was assailed in appeal by respondent No, 1 and the learned District Judge stopped the defendant from continuing with the partition proceedings till the disposal of the suit.
3. Learned counsel for the petitioners contended that the suit for declaration as framed was not competent and the partition proceedings initiated were competent under the law. He also contended that the respondent No, 1 had no locus standi to file the suit.- He referred to the provisions of section 135 of the Land Revenue Act and stated that respondent No, I being not recorded joint owner of the land as such had no locus standi to question the partition proceedings.
He also referred to section 141 (5)(c) of the aforementioned Act and contended that the order/decree passed by the Revenue Officer being subject to appeal, civil suit was, therefore, not maintainable. He next referred to section 172 of the aforementioned Act and argued that civil Court had no jurisdiction in the matter which could competently be disposed of by the Revenue Officer under the provisions of the West Pakistan Land Revenue Act. He, lastly, contended that section 20(3) of the above-referred Act empowers the Revenue Officer to refer any case which he was empowered to dispose of to another Revenue Officer subordinate to him for investigation and report and may decide the case upon such report. The order passed by the Revenue Officer on the basis of the report submitted by the Assistant Collector 2nd Grade was, therefore, a valid order and not challengable before the civil Court. On the submissions mentioned above the learned counsel contended that respondent No, 1 'had no prima Jack case is favour and the issue of injunction was, therefore, not warranted under the law.
4. Learned counsel for respondent No, 1 on the other hand contended that the impugned order passed by the Assistant Collector 1st Grade after obtaining the report was in contravention of the provisions of section 20(3) of the West Pakistan Land Revenue Act as he did not judicially decide the case after giving the parties concerned an opportunity of being heard. He did not apply his mind and passed order which lacked reasons. Reliance is placed on Muhammad Latif v. Province of West Pakistan (1). He submitted that even in the instant case the Assistant Collector Ist Grade had no jurisdiction to refer the matter to the Assistant Collector 2nd Grade for report in view of the provisions, of section 150 of the Land Revenue Act which specifically conferred powers under Chapter XI relating to partition proceedings on Assistant Collector 1st Grade. It was stated that investigations or report, as contemplated under section 20(3) of the Act, were proceedings within the ambit of section 150 and the Assistant Collector 2nd Grade had no jurisdiction to hold the proceedings. It was argued that the proceedings held by defendant No, 2 were without jurisdiction and the order passed thereon was also illegal. He submitted that section 135 of the Act relates to an applicant who approaches the Revenue Officer for proceedings of partition to be joint owner of the land and not to the person raising objections to the proceedings on the basis of title to the suit land. He contended that neither the notice as envisaged under section 20 (3) nor under section 137 of the Land Revenue Act was issued to the concerned parties, the proceedings were, therefore, a nullity being in violation of the statutory provisions of law. He explained that respondent No, 1 being co-sharer of the khata and recorded so in the jamabandi for the year 1974-75 was an aggrieved person besides other co-sharers to whom no notice was issued by defendant No,
1. He relied on Mansab All v. Amir (2). It was contended that respondent No, 1, although recorded co-owner in Khata No, 176/175 pertaining to jamabandi for the years 1974-75 had also a possessory title by virtue of the agreement to sell under which be was delivered possession of the land in dispute. He was a proper party to whom notice ought to have been issued by the defendant No,
1. It was next contended that even under section 141 of the aforementioned Act when a complicate question regarding,the title had arisen before a Revenue Officer dealing with application for partition of the land, the matter required to be referred to civil Court. He pointed out that respondent No, 1 had already approached the civil Court and the Revenue Officer had no jurisdiction to pass the impugned order.
5. Learned counsel further submitted that the Court below had granted relief in favour of the respondents by the impugned order in exercise of the discretionary jurisdiction which cannot be interfered with as held in Khuda Bakhsh v. Hamid Ali Shah (3). It was lastly stated that respondent No, 1 had prima facie arguable case in his favour and as such was entitled to the injunction already granted in his favour.
6. Mian Allah Nawaz, Advocate on behalf of respondent No, 3 referred to section 172 (xviii) and pointed out that if in the proceedings for partition a question of title was involved then only the civil Court had the jurisdiction to determine the matter and the Revenue Officer was required to refer the parties to the civil Court for decision. He also submitted that the co-sharers
(1) PLD 1970 SC 180 (2) PLD 1971 SC 124
(3) 1981 SCMR. 196 ' in the khata were not issued any notice by the Assistant Collector 1st Grade while passing the order impugned before the civil Court as such the order passed was void, ab initio and the suit filed by respondent No, 1 was competent under the law.
7: Mr. M. M. Bhatti, learned counsel for the petitioners said in replying to the submissions made by the learned counsel for respondent No, 1 that he was not a recorded owner even if his name existed as such in the relevant revenue record as per decision of this Court reported in Muhammad Bakhsh v. Zia Ullah (1).
8. I have heard the learned counsel for the parties and perused the relevant record with their.
Assistance. Undoubtedly respondent No, 1 is recorded as co-owner in the khata in dispute as per jamabandi for the year 1974-75 of the village, he also entered into possession of the suit land ostensibly under an agreement to sell and claimed possessory title to the suit land. He, therefore, was required to have been issued notice by the Assistant Collector, 1st Grade seized of the partition proceedings while passing the order, now challenged in the civil suit. Respondent No, 1 had prima facie arguable case in his favour. The comptency of the civil suit and all other questions relatable thereto are yet to be adjudicated by the civil Court therefore any opinion on those questions expressed by this Court white disposing of this revision petition would prejudice the case of one party or the other. I, therefore, refrain to make any observation touching the above disputed questions of law and facts. Even if it is assumed for the sake of argument that the Assistant Collector, 1st Grade had the jurisdiction to proceed with partition proceedings of the suit land and refer the matter to the Assistant. Collector, 2nd Grade for report and investigation after the receipt of the report prima facie it was necessary for him to have issued notices to the parties concerned as envisaged under section 20(3) of the West Pakistan Land Revenue Act and decided the matter with judicial application of mind.
9. The order passed by the learned District Judge cannot be termed to be either arbitrary or fanciful in exercise of his discretion, this Court, therefore, will be reluctant to interfere in that order in exercise of its revisional jurisdiction. In Muhammad Umar Beg v. Sultan Mahmood Khan (2) the Supreme Court observed that :- ' It may also be pointed out with all respect to the learned Single Judge, that he was exercising a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily."
' In view of the dictum laid down by the Supreme Court, I am not inclined to interfere with the impugned order passed by the learned District Judge in revision and dismiss this petition with no order as to costs.
10. The dispute in this case, in my view, requires expeditious disposal. I, therefore, direct the parties to appear before the learned trial Court on 31-11-1981 without fail and the 'learned trial Court to decide the suit within three months from 11-11-1981.
(1) P L 1/1971 B J (2) PLD 1970 SC 139 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.