Haji Mustaqim, petitioner herein, claiming to have purchased land out of the suit land on the basis of Mutations Nos.1128, 1129 and 1130 attested on 16-12-1978, filed applications before the Revenue Officer for partition of his share and obtained an order of partition in his favour on 12-5-1984 for his share in Khata Nos.103, 104, 105 and 131. Haji Faridullah and others, respondents 1 to 12 herein, claimed that they had also purchased land out of the land in dispute and that the aforesaid orders of partition of share of the petitioner herein were void and inoperative as against their rights. The latter, therefore, filed a suit in the Court of Senior Civil Judge, Mardan on 14-3-1987, wherein they had sought a declaration of their ownership as also cancellation of the orders of partition.
Alongwith the suit the respondents herein had also presented an application for temporary injunction restraining the petitioner herein from executing the order of partition. That matter came up to this Court in Revision Petition No.345 of 1987 and the matter was remanded back to the trial Court on 2-7-1988 with the observation that the question of jurisdiction of the Civil Court was involved and it should be decided first. Thereupon the learned Senior Civil Judge framed a preliminary issue with regard to the jurisdiction of the Civil Court and answered the same in the affirmative by order dated 14-6-1989. Appeal of the petitioner herein was dismissed by the learned Additional District Judge on 23-5-1990. Still feeling aggrieved, the petitioner has come up to this Court with the revision petition it hand, challenging the findings of both the lower Courts on the question of jurisdiction.
2. I have heard learned counsel for the parties at length and have also perused record of the case.
3. The plaintiffs of the suit claimed that they had purchased land out of the suit land through Mutations Nos.1528, 1566, 991, 1144 and 1407. After going through the record, I note that Mutations Nos.1528 and 1566 were both attested on 30-7-1985, Mutation No.991 was attested on 23-4-1976, Mutation No.1144 was attested in the year 1979 and Mutation No.1407 was attested on 21-10-1983. It shall thus be seen that when the petitioner herein filed application for partition before the Revenue Officer, only Mutation No.991 was in the field, whereas two Mutations were attested after the order for partition had already been made and one was attested during the pendency of partition proceedings. It is also noteworthy that the plaintiffs of the suit had purchased share from jointly owned property or even if they had purchased any specific share from any particular land, that was still subject to adjustment at the time of partition. There is as yet no evidence on the record to show that the order of partition of the land made in favour of the petitioner herein had in any way affected the rights of the plaintiffs of the suit and in so far as landed property purchased through Mutation Nos.1528 and 1566 is concerned, that was purchased after the order of partition.
4. It shall thus be seen that the plaintiffs of the suit had yet to show that they were in any way adversely, affected by the order of partition made in favour of the petitioner herein in the year 1984.
Moreover, they cannot challenge that order in so far as acquisition of property in the year 1985 is concerned, because that property was acquired when the order of partition had already been made in the year 1984.
5. It is also noteworthy that the plaintiffs of the suit have not challenged the title of the petitioner herein over the land in dispute. They have not controverted his ownership in the suit land. Their only contention is that they had also purchased land in the suit land and the petitioner herein has by concealment of that fact obtained a mode of partition in his favour, wherein the property purchased by them has also been included. However, this contention is yet to be proved by them and as earlier stated in so far as the land purchased by theist through Mutations Nos.1528 and 1566 is concerned, those transactions cannot adversely affect the order of partition, because these two mutations were attested after the sanction of partition. Moreover, in so far as land purchased by them through Mutation Nos.1144 and 1407 is concerned, that was during the pendency of partition proceeding and that was at their own risk and cost, because the partition proceedings were already in progress.
6. Under section 135 of the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the Act), any joint owner of land can apply to a Revenue Officer for partition of his share in a jointly held land and if his title is A not denied by other co-sharers, then the Revenue Officer has to determine the mode of partition. However, if a question of title arises, then either the Revenue Officer has to himself take cognizance of that objection under clause (xviii) of subsection (2) of section 172 of the Act or stop the partition proceedings and refer the question of title to a Civil Court for determination. It shall thus be seen that when the petitioner applied to the Revenue Officer for partition of his share, no such question of title had arisen. Even otherwise most of the plaintiffs of the suit having purchased land afterwards were not competent to raise the question of title of the petitioner herein over the suit land. They could at the most raise an objection on the mode of partition and that objection could conveniently be raised by them during actual partition proceedings before the authority which had to carry out partition at the spot in execution proceedings.
7. Since no question of title had either arisen during the partition proceedings or could subsequently be raised, the plaintiffs of the suit could not invoke the jurisdiction of the Civil Court simply to question the mode of partition. It is also noteworthy that the petitioner herein has not, in the suit of the plaintiffs pending before the learned Senior Civil Judge, denied their title and essentially it has become a suit which questions the mode of partition and falls within the exclusive jurisdiction of the Revenue Officer. As such, the Civil Courts had no jurisdiction to adjudicate upon the matter. Both the learned lower Courts erroneously arrived at a positive finding with regard to the question of jurisdiction of the Civil Courts. I, therefore, accept this revision petition, set aside both the impugned judgments and. Decide the preliminary issue against the plaintiffs and dismiss their suit. However, the plaintiffs shall be at liberty to raise objection during execution proceedings about the mode of actual partition. There shall be no order as to costs.