MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for leave to appeal, which is directed against the judgment of Peshawar High Court, dated 12-6-1996, arises in the following circumstances.
2. The plaintiffs-respondents instituted a suit against the defendants---petitioners for possession by partition of plot measuring 3 Kanals, 7 Marlas out of 41 Kanals, 19 Marlas bearing Khasra Nos.
1743, 1744 and 1745, situated in village Ziam, Tehsil Swabi, on the allegations that major portion thereof had been built upon and had thus lost its agricultural character. The defendants--- petitioners besides denying the title of the respondents to the plot in dispute controverted the assertion in their joint written statement that the disputed land was part of built up property.
Conversely, it was averred that few buildings which had come up were constructed for agricultural purposes or subservient to agriculture and, therefore, the land was neither capable of partition nor the Civil Court was possessed of jurisdiction to entertain this suit. The parties went to trial on 7 issues. For the purposes this issue, however, the following 4 issues are material:-- (2)Whether the suit land is agricultural in nature and hence this Court has got no jurisdiction?
(3)Whether the suit is against the M.L.R. 115 if so, its effect?
(6)Whether the plaintiffs are owners of the suit land?
(7)Whether the plaintiffs are entitled to possession of the suit land by partition?
3. The trial Court took up Issues Nos.2 and 3 together and held that he land had been built up and had lost its agricultural character and hence the claim of partition through Civil Court was not hit by the provisions of Martial Law Regulation 115. On Issue No.6 it was held that the plaintiffs- respondents were co-owners to the extent of 3 Kanals and 6 Marlas. In view of findings on issues Nos.5 and 6 the plaintiffs-respondents were held entitled to possession by partition of the plot to dispute. In view of these findings a preliminary decree was passed on 9-3-1988. The defendants- petitioners appealed and before the learned Additional District Judge the only point urged was that the trial Court had no jurisdiction to entertain the suit because the land was agricultural in nature and, therefore, the matter of partition thereof was cognizable by a Revenue Officer. The learned Appellate Court upheld the findings of the trial Court that the land having lost its agricultural character the suit for partition of the land was tribale by the Civil Court. Before the High Court the question of lack of jurisdiction of Civil Court in the matter was pressed into service but a learned Single Judge concurred in the finding of the to Courts below and had dismissed the Civil Revision filed by the petitioners.
4. In support of this petition, Mian Yunus Shah, the learned Advocate Supreme Court, contended that the trial Court had no jurisdiction to try the suit because of section 172(2)(xviii) of the West Pakistan Land Revenue Act (XVII of 1967) corresponding to section 158(2)(xvii) of the Punjab Land Revenue Act (XVII of 1887) which ousts jurisdiction of a Civil Court in respect of claim of partition of any "holding". He also relied in this connection on section 172(1) of West Pakistan Act XVII of 1967 corresponding to section 158(1) of the repealed Act XVII of 1887 (ibid), which prevents Civil Court from adjudicating upon any question which a Revenue Officer is empowered to dispose of. It had been urged on behalf of the petitioners that the land in dispute was recorded in the revenue papers as an agriculture land. It was then submitted on the authority of Lahore High Court reported as Ghulam Hussain and others v. Khan Muhammad and others (PLD 1954 Lahore 655) that admittedly the disputed land is entered in the Revenue Record and its Khasra numbers are also mentioned which fact alone is sufficient for maintaining an objection as to jurisdiction. Since the contention has ostensibly some force, it would be appropriate to reproduce hereunder the reasoning for the ratio deduced by the learned counsel:- "According to section 158 of the Punjab Land Revenue Act the claim for partition of an 'estate' or 'holding' is cognizable by a Civil Court. The definition of 'holding' as provided in section 3(3) of the Punjab Land Revenue Act is that it is part of an estate. An estate as provided in section 3(1) means an area for which a separate record of rights has been prepared. The result is that all land which is entered in any record of rights must be a holding and would be within the purview of section 158(2)
(xvii). But there is even further material on the file to show that the land in dispute is within the mischief of the Punjab Land Revenue Act. The Local Commissioner has himself reported that when he went to the spot he found part of the land under cultivation. I do not mean to say that for application of the Land Revenue Act it is necessary that land be agricultural land. As held in R.I Jagat Chand v. Haku and others (38 PLR 428) the definition of land in the Punjab Tenancy Act does not apply to the Land Revenue Act. But, in any case, the fact that part of the land is agricultural prevents the plaintiffs from saying that the plea now raised involves any investigation into any issue of fact. "
5. It would be seen from the above extract from the report even that the Local Commissioner in the case of Ghulam Hussain (supra) found part of the land under cultivation. In the instant case, however, at least on the record of the paper-book we ,do not find that any Commissioner was ever appointed to find out as to how much land was built up area and how much was being cultivated.
The ocular evidence which was relied upon by all the three Courts, however, would show that a major portion of the land was under construction while a smaller portion was being cultivated.
Nonetheless, another learned Division. Bench of the Lahore High Court in the case of Ghulam Rasul v. Ikram Ullah and another (PLD 1965 (W.P.) Lahore 429) on the identical proposition relying on pre- partition case-law of Punjab and a case from Indian jurisdiction i.e. (i) ........... Bhan and another v.
Sham Singh etc. (AIR 1944 Lah. 455), Rameshawar Nath v. Jageshar Nath and others (AIR 1953 Punjab 250) and Shah Muhammad v. Mst. Pyari (AIR 1936 Lah. 202) and without taking notice of the case of Ghulam Hussain (supra) expressed a dissenting view in the following paragraph:-- "We fully agree with the learned Judges in holding that 'the phrase ' land' in section 141 of the Land Revenue Act has 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 insignificant 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 centre.
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 properties 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. "
The authors of both the monumental judgments were legal luminaries of par excellence, namely, in the earlier case of Ghulam Hussain, the author was late B.Z. Kaikaus, J.. While in the latter case of Ghulam Hussain (supra) the judgment was authored by Muhammad Akram, J.
6. We are, however, inclined to adopt the view taken by the learned Division Bench 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. Obviously this is a question of fact which has to be determined by the Civil Courts having plenary jurisdiction to entertain the suit for partition of immovable property which is other than the agricultural land. The learned trial Judge found that the disputed land had lost characteristics of an agricultural land for the purpose of the Land Revenue Act, 1967 and both the learned District Judge and the learned Judge of the High Court have concurred in this finding.
7. We are therefore, convinced that there can be no doubt that the Civil Court had the jurisdiction in this matter and preliminary decree for possession by partition passed by the learned trial Judge duly affirmed by the Appellate Court and the learned Single Judge in the High Court warrants any interference.
8. Resultantly the petition is dismissed and leave to appeal is refused. No order as to costs.