MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, petitioners have challenged the judgment and decree of the learned trial Court dated 19.10.2019, whereby the plaint filed by them was rejected under Order VII Rule 11 CPC and that of the learned Additional District Judge-I/Izafi Zilla Qazi, Buner dated 04.01.2022, whereby the appeal filed by them against the aforesaid judgment and decree was also dismissed.
2. Precisely the case of the petitioners is that they filed a suit for specific perfo rmance of a "private partition agreement" dated 07.10.2016 in respect of the property which has been fully described in the heading of the plaint, where they have pleaded that the "private partition agreement" was executed between the predecessors of the parties and since then every stakeholder is in possession of his respec tive share on the basis of the aforesaid private partition agreement. They have also sought for issuance of permanent injunction and even in the alternative for possession.
3. Defendants were summoned and they submitted their written statement, in which they have specifically raised the plea of jurisdiction as the suit property being purely agricultural property could not be put to partition before the civil Court. Thereafter , they have also filed an application for rejection of the plaint under Order Vii Rule 11 CPC for the aforesaid reason. Arguments of both the learned counsel for the parties were heard and ultimately the plaint of the present petitioners was rejected by the learned trial Court vide judgment and decree dated 19.10.2019.
Petitioners/ plaintif fs being aggrieved of the aforesaid judgment and decree preferred an appeal to the Court of learned District Judge/Zilla Qazi, Buner , however the same was also dismissed vide the impugned judgment and decree dated 04.01.2022. Petitioners have now challenged the aforesaid two judgments and decree before this Court through the instant revision petition.
4. Arguments of learned counsel for the petitioners were heard in detail and the record perused with his able assistance.
5. As stated above that the petitioners through the instant plaint have sought the enforcement of a private partition agreement, which was alleged to have been taken place between the predecessors-in-interest of the parties. It is also an admitted fact that the whole property mentioned in the agreement dated 07.10.2016 is an agricultural property upon which no construction is available and it is also part of the record that official partition proceedings between the parties have since been adjudicated and concluded before the revenue hierarchy . In view of the above admitted facts, the following questions would arise for determination of this Court:-
1. Whether the civil Court has the juris diction to entertain a suit with respect to the partition of agricultural property?;
2. Whether an "agreement" pertaining to a "private partition" of the agricultur al property could be enforced by the civil Court?;
3. Whether enforcement of a private partition arrangement/deed does not fall within the domain of the revenue hierarchy?; and
4. Whether in presence of orders of official partition of the revenue hierarchy , the civil Court in a suit for specific performance of a private parti tion agreement could entertain a plain t, which involves enforcement of a private partition arrangement?.
6. In order to answer question No. 1, it is admitted that as per the scheme and mechanism provided under The Land Revenue Act, 1967, an application for partition of agricultural property lay with the revenue hierarchy under section 135 of The Act of 1967 and contrary to it as per Section 3 thereof, the provisions of The Land Revenue Act, 1967 are completely inapplicable to the site of the town or village or property having Abadi. Admittedly the petitioners are seeking enforcement of the private partition agreement of the agricultural property , therefore, the civil Court has no jurisdiction to entertain the same. Had there been any Abadi over the property mentioned in the private partition agreement or had there been also a property comprising of Abadi/construction, then of-course the civil Court would have been competent to entertain a partition suit. In view of the above discussion, the answer to questions No. 1 & 2 is answered in negative as such an agreement of partition qua purely agricultural property could not be enforced by the civil Court.
7. As far as question No. 3 is concerned, it is submitted that under section 135 of The Act of 1967 as well as all other enabling provisions, the revenue hierarchy is bound to make official partiti on amongst the co-sharers and during this process, if there is any private arrangement/private partition amongst the parties, the same could be entertained and acted upon in view of Section 147 of The Act of 1967, however , such private partition could only be entered and acted upon if all the stakeholders are agreed to the same but the moment, private arrangement/private partition is denied or disputed or controverted by a co-sharer , then he could not be compelled for the same and then in such eventuality , the revenue hierarchy is bound to proceed with the official partition. In the present case too, this Court was informed that the private partition agreement was submitted to the revenue hierarchy , however , in view of the objection by the other contesting co-sharers, the same was not entertained, therefore in view of the above discussion, the private partition agreement of the agricultural property could be entertained and acted upon by the revenue hierarchy subject to the consent of all the stakeholders.
8. As far as question No. 4 is concerned, it appears that the present suit filed by the petitioners is to frustrate the partition orders passed by the revenue hierarchy as the private partition agreement has been submitted to the revenue hierarchy but the same was disputed and controverted by the other stakeholders/co-sharers, therefore it was kept aside and the revenue hierarchy carried out the official partition amongst the parties and rightly so as they are not bound to compel the other co-sharer for the enforcement of private partition arrangement. In the view of the above, the two Courts below have rightly rejected the plaint filed by the present petitioners/plaintif fs and as such question No. 4 is answered in negative.
9. It is settled law that before assuming jurisdiction, the Court of law is required to first ascertain the question of jurisdiction. In this case, initially the learned trial Court has rightly checked and found that it is lacking the jurisdiction and accordingly the plaint filed by the petitioners/ plaintif fs was rightly rejected. In the case of Malik Khan Muhammad Tareen vs. Messrs Nasir And Brother Coal Company through Proprietor and others reported as 2018 SCMR 2121 , the Hon'ble Apex Court has held that jurisdiction of the Civil Courts is not as explicitly defined in C.P.C. Section 9, C.P.C. confers plenary jurisdiction, subject to part I of the Code, on Civil Courts to try "all cases of civil nature", except suits of which cognizance is either expressly or impliedly barred . Jurisdiction of Civil Courts to try civil cases may be classified into a) territorial jurisdiction, b) pecuniary jurisdiction and c) jurisdiction over subject matter . Jurisdiction over subject matter of suit of civil nature is most pivotal and determinative as regard assum ption and exercise of jurisdiction by any civil Court. It is through special enactments and statute, like for instance Provincial and Islamabad Capital Territory and Cantonments Rent Restriction Laws, Federal and Provincial Service Laws, Excise and Taxation Laws , Customs Acts, Banking Laws, Company Laws etc.; subject matter jurisdiction is sliced and or carved out of the otherwise plenary jurisdictions possessed by ordinary Civil Court and is conferred on special Courts, Tribunals and forum through special statute some which are noted herein.
10. It is also settled law that while deciding an application under Order VII Rule 11 CPC, the Court has to see whether the plaint filed by the plaintif f is barred by any law or otherwise. In the case of Haji Abdul Karim and others vs. Messrs Florida Builders (PVT) Limited reported as PLD 2012 Supreme Court 247, the Hon'ble Apex Court has held that a Court under Order VII Rule 11 CPC has to see whether the plaint appears to be barred by any law or otherwise, therefore, if an averment contained in the plaint is to be rejected on the basis of documents appended to the plaint or the admitted documents or the position which is beyond any doubt. The exercise of rejection of plaint has to be carried out not on the basis of denial contained in the written statement, which is not relevant. The aforesaid principle was also followed by the Sindh High Court in the case of Ali Gohar and another vs. Abdullah Mallah and 5 others reported as 2021 CLC 1102, where it was held that provisions of Order VII Rule 11 CPC are mandatory in nature and the Court is bound to reject the plaint if it appears from the contents of the plaint to be barred by any law. Similarly , in the case of Ameer Abbas Sial vs. Province of Punjab reported as 2020 CLC 792, it was held by the Lahore High Court that if after the examination of a plaint, the Court comes to the conclusion that the suit is barred by some provisions of law or it does not disclose a cause of action, then it is not only proper rather statutory duty of the Court to reject the plaint, the reasons of-course should be firstly; a still born suit should be buried in its inception so that no further time is wasted on fruitless litigation and secondly that rejection of plaint of the suit would give the plaintif f a chance to retrace his steps at earliest possible moment. The Court is even empowered to reject the plaint suo motu without there being an application filed by the defendant so that the incompetent suit would be taken off the file. This Court in the case of Bakht Zada vs. Shah Tamash Khan and 5 others reported as 2016 YLR 2337 , has also held that incompetent plaint should be rejected at initial stage.
Such powers should be exercised by the Court at any stage, even at the stage of deciding an interlocutory matter .
11. In view of the above, learned coun sel for the petitioners has not been able to point out any illegality or irregularity committed by the two Courts below while passing their judgments and decree, which are found by this Court to be correct and in accordance with the relevant law on the subject, thus the same are maintained and upheld and consequently , the instant revision petition being bereft of any merit is hereby dismissed in limine.