' This revision has been filed to impugne the legality of the agreed judgments and decrees of the leanred original Court dated 9-3-1988 and that of the appellate Court passed on 20-5-1992, as by the former the suit for partition of the disputed property instituted by the plaintiffs-respondents was decreed against the petitioners-defendants and by the latter the judgment of the Trial Court was confirmed.
2. The plaintiffs-respondents brought a suit for possession through partition of an area measuring 3 Kanals, 7 Marlas out of the disputed Khasra number on the allegations that the entire joint holding has assumed the status of residential area wherein, the plaintiffs owned 3 Kanals, 7 Marlas.
It was specifically averred that the entire disputed land and the land surrounding it has become "Abad" and, therefore, the plaintiffs were entitled to separate their share to the extent of 3 Kanals, 7 Marlas through partition. The defendants when approached for partition declined "so it necessitated filing of the suit. In, the written statement on behalf of the defendants the residential character of the suit property was denied and it was stated that hardly an area of one Kanal has been used for construction and the remaining area is still used for agriculture. It was on this count averred that the Civil Court has no jurisdiction and that the partition prayed for .Is violative of Martial Law Regulation. No,115. It was also claimed that the plaintiffs have sold their entitlement in the' suit land to the defendants and, therefore, they were left with no rights and no cause of action.
3. It is to be noted that the petitioners-defendants abandoned their claim about their ownership over the land owned by the plaintiffs on the ground of purchase. Issue No,4 was framed to the effect as to "whether the plaintiffs have sold their share to the defendants in the suit Khata" which was decided against the defendants by the Trial Court. The finding was not challenged in the memorandum of appeal before the Appellate Court as observed by the Appellate Court and even before this Court the ownership of the plaintiffs was not disputed. However, the learned counsel vehemently stressed that the Civil Court had no jurisdiction to take cognizance of the partition suit of the present nature as the disputed property waS agricultural in nature. He referred to bar contained in section 172(xviii) of the Land Revenue Act (hereinafter to be referred as the Act) which provides that the Civil Court would have no jurisdiction in matter of partition of land. He also relied on section 3. Of the Act and stressed that the land would not lose its agricultural status even if it is within the town or village if it is assessed to land revenue. He was, therefore, of the view that the character of. a land even if it is .Converted into a building could not be changed so long it is assessed to land revenue. He, therefore, stressed that the disputed land being assessed to land revenue would still be considered as agricultural land. He also Made reference to sections 135 and 136 of the Act and submitted that application for partition in respect of the disputed land would only lie under that provision of law, He also argued that the partition of the disputed land was even otherwise prohibited under para. 22(i) of Martial Law Regulation No,115. These submissions were controverted by the learned counsel representing. The respondents who relied on AIR 1953 Punjab 264 and PLD 1965 Lahore 469 for the view that the land over which construction is made loses its character of agricultural land even if it is assessed to land revenue and, therefore, Civil Court would not be debarred from partition of such land. He also submitted that the two Courts have concurred in their conclusion, therefore, their decisions cannot be interfered with.
4. I went through the record as well as the legal provisions in the cases cited at the Bar.
5. It is to be noted that the learned counsel for the petitioners mainly relies on he entries in the Revenue Record to show that the disputed land is assessed to land revenue and, therefore, on that basis stressed that it was agricultural land. He, however, did not make any attempt to controvert the finding of the two Courts and particularly that of the Appellate Court regarding the conversion of the nature of the land from agriculture to Abadi. The Appellate Court has elaborately discussed in para. 9 of its judgment the entries in the Revenue Record and the other documents to show that the suit land has assumed the character of residential area. It is curious to note that not a single word was said to refute the correctness of these entries. The reliance on section 3 of the Act is misplaced as that section is general in nature and is meant for exclusion of certain land from the operation of this Act. The section which is special in character and would apply is section 135 of the Act wherein a joint owner of land can apply for partition of the land. The land would, therefore, in the context of the Land Revenue Act only mean the agricultural land and not the land on which buildings are constructed. AIR 1944 Lahore 455 lays down: "Phrase 'land' in section 141 has a special and restricted meaning and does not comprise sites assessed to land revenue on which buildings with structures of a permanent character have been constructed. It was not intended to confer power on the Collector to sell house and shop property worth lacs of. Rupees constructed on a site paying and insignificant sum of money as revenue to Government. A Civil Court is, therefore, not required by the provision of section 141 to address its orders for attachment, sale or delivery of possession of shop and house property to the Collector."
It is a matter of common knowledge that land with construction over it continues in revenue record till settlement, therefore, it would not exclude the jurisdiction of the Civil Court if the land is constructed one but is still assessed to land revenue. In AIR 1953 Punjab 250 the rule laid down is to the effect "The Punjab Land Revenue Act does not exclude the jurisdiction of Civil Court in regard to land on which houses, shops and factories have been built". It is thus clear that the mere fact that a particular land is assessed to land revenue would not make it agricultural land unless it is proved that the land is used for agriculture purpose or for purposes of subservient to agriculture. The same would apply to the estate as defined in the Act which term would only be used for agricultural land and not for the built up one. A Division Bench judgment reported in PLD 1965 (W.P.) Lahore 429 has great bearing on the facts of the present case. The same points were agitated in the said case and these were answered in this way: "We fully agree with the learned Judges in holding that the phrase 'land' in section 141 of the Land.
Revenue Act his a special. And restricted meaning and does, not comprise site assessed to land revenue on which buildings with structures of a permanent character have been constructed. It was not intended by the framers of the Act to confer powers on the Revenue Officers in respect of house and shop properties worth lacs of rupees constructed on a site paying in significant sum of money as land revenue to the Government although the site may have completely lost all the characteristics of agricultural land and has instead assumed its importance as a business center.
This is particularly true of,the provisions in Chapter IX of the Land Revenue Act dealing with the partition of lands. A- Revenue Officer does not have any jurisdiction to entertain an application for the partition of the property which have ceased to be land notwithstanding the fact that they continue to be assessed .To land revenue. Disputes for the partition of such properties can be properly dealt with in the Civil Court.
It is thus clear that the Civil Courts have jurisdiction after holding that the disputed land has assumed the status of residential area. The bar of jurisdiction under Martial Law Regulation would thus lose its importance and ' even otherwise this point cannot be pressed in revision as it was not argued before the Appellate Court as it does not find any mention therein. This revision petition is dismissed but with no order as to costs.