1. ' BASHARAT AHMAD SHAIKH, J.---This appeal has been filed with leave of the Court to challenge the judgment passed by the Azad Jammu and Kashmir High Court on 8th November; 1997 whereby orders passed by the Member, Board of Revenue and Commissioner Mirpur Division, by which partition proceedings were ordered to be taken were, declared to be without lawful authority. The High Court has held that the appellant who was refused relief in the first round of litigation, cannot be allowed to drag another party for the same relief before the same Court. In reaching this conclusion the High Court has held that section 11 of the Civil Procedure Code is applicable.
2. ' Facts of the case are that appellant Said Muhammad filed a suit for possession against the respondents on 8th February, 1974 but withdrew it on 8th February, 1975 after getting permission from the Court that he would file an application for partition. Accordingly an application for partition was filed by him on 25th March, 1975. During the pendency of the application the appellant moved an application before the Revenue Minister whereupon the Minister ordered the Sub-Divisional Magistrate Nakyal to hand over possession of the land in dispute to the appellant.
3. This order was implemented by Sub-Divisional Magistrate and the appellant was put in possession.
4. This was challenged by respondents Karam Dad and others by filing a writ petition which was accepted on 2nd August, 1976. The High Court ordered that the respondents, Karam Dad and others, may be put back in possession as they had been illegally dispossessed. The order of the High Court was duly implemented on 1st December, 1977.
5. ' During this period the application for partition filed by the appellant Said Muhammad remained pending with the Assistant Collector Grade-I Kotli. A report was furnished by the subordinate staff that the appellant was in possession of land in excess of his share by fifteen marlas. The Assistant Collector dismissed the partition application on the ground that partition could not take place on the application of a person who is already in possession of land in excess of his share. In his order, which was passed on 16th of November, 1977, the Assistant Collector held that partition proceedings can only, be taken on the application of Karam Dad and Munshi Khan, respondents Nos.1 and 2 before this Court, because they were in cultivating possession of land which was less than their share. The matter ended there no appeal etc. Was filed against this order.
6. ' Sixteen years later the appellant filed another partition application on 22nd May, 1993 before the Additional Collector Fatehpur who dismissed it on 22nd June, 1993 on the ground that the partition application was incomplete. It was noted by the Additional Collector that Saif Khan, one of the co- sharers, had died but his legal representatives had not been brought on the record. He also observed that Karam Dad and Munshi Khan, respondents Nos.1 and 2 before this Court, were also joint owners but they were also shown as occupancy tenants in khata No,164. The Additional Collector expressed the view that to dispossess the occupancy tenants only a civil suit was maintainable. This order was challenged by filing appeal before the Commissioner who set aside the order passed by the Additional Collector. Another revision was taken to the Board of Revenue which was dismissed by a Member on 5th of May, 1996. It was held by the Member Board of Revenue that the question as to how much land was in occupation of a particular joint owner was not relevant because in partition proceedings land has to be distributed among the joint owners, inter alia, on the basis of quality of land. He also expressed the view that there was no need of any party going to the Civil Court. It was argued before the Member Board of Revenue that the matter was hit by the doctrine of res judicata but this plea was rejected by observing that res judicata did not apply to partition proceedings.
7. ' The order passed by the Member Board of Revenue as well as the order passed by the Commissioner Mirpur Division were challenged by respondents, Karam Dad and others, by filing a writ petition in the High Court. The writ petition has been accepted on the ground that the case is barred by section 11 of the Civil Procedure Code which has been held to be applicable to partition proceedings. In the judgment under appeal a reported case based on general principles of res judicata has also been relied upon.
8. ' It was vehemently contended by Mr. Muhammad Yunus Tahir, the learned counsel for the appellant, that partition proceedings are purely administrative in nature to which Civil Procedure Code has no application. He referred to section 135 of the West Pakistan Land Revenue Act, 1967, adapted in Azad Jammu and Kashmir, which reads as under:--- "135. Application for partition.---Any joint owner of land may apply to a Revenue Officer for partition of his share in the land
(a) at the date of application the share is recorded under Chapter VI as belonging to him; or
(b) his right to the share has been established by a decree which is still subsisting at that date; or
(c) a written acknowledgement of that right has been executed in the admission of denial thereof."
9. ' By reference to the phraseology of the provision of law reproduced above, the learned counsel submitted that the power to entertain an application for partition is vested in the Revenue Officer.
10. He submitted that a Revenue Officer is authorised to decide various questions which may arise in the proceedings but if a question about title is to be decided in any property of which partition is sought then the Revenue Officer is authorized by section 141 of the Lard Revenue Act to proceed to determine the question as; though he were a Civil Court. It' was contended by the learned counsel for the appellant that section 141 makes it clear that only the question about title arising in a partition proceeding may be decided by a Revenue Officer acting as a Civil Court; all other proceedings in a partition application are to be taken by a Revenue Officer. The learned counsel further argued that the High Court has wrongly applied section 141 of the Civil Procedure Code to the present case because a Revenue Officer is not a Court of civil jurisdiction.
11. ' Mr. Liaquat Ali Khan, the learned counsel for the respondents, contended that this view taken by the High Court was correct and the contrary view would lead to endless litigation because there will be no finality to any decision given under the Land Revenue Act. He contended that the appellant did not challenge the order passed on 16th November, 1977 by which partition application filed by him was dismissed and, thus, allowed the decision to attain finality. He contended that the appellant, therefore, could not now file a fresh application. The learned counsel relied on two cases from Indian jurisdiction.
12. ' In Ram Raikha Misir v. Lallu Misir and others (AIR 1931 All. 462) it was held by Allahabad High Court that the rule of res judicata will only apply when the conditions laid down in section 11 of the Civil Procedure Code exist. In Mallaya and another v. Tippanna and others (AIR 1955 Andhra 81) it was held that in a partition suit the fact that the defendants did not exercise the option to ask for relief for a decree for a possession by dividing their share of properties by metes and bounds the decree in the earlier suit would not be a bar to the maintainability of the subsequent action for partition.
13. ' It may first be noted that in the judgment under appeal the High Court has held that provisions of the Civil Procedure Code apply to partition proceedings. In this connection the High Court has pressed into service section 141 of the Civil Procedure Code which lays down that the procedure provided in the Civil Procedure Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The High Court has not dismissed the point whether a Revenue Officer taking partition proceedings is a Court of civil jurisdiction.
14. Section 11 of the Code of Civil Procedure is applicable only to suits triable by a Court set up under the Code of Civil Procedure. A Revenue Officer while conducting partition proceedings not involving title is not a Court and, at the same time, a partition application is not a suit within the meaning of section 11 of the Code. Therefore, section 11 of the Code does not apply to partition proceedings on its own strength. Section 141 of the Code, which lays down that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction also does not change the position because, as said earlier Revenue Officer is not a Court of Civil jurisdiction. It follows from the above that section 11 of the Code does not apply to the present case. Thus, the view taken by the High Court is not correct.
15. ' The High Court has also relied on a judgment of the Supreme Court of Pakistan reported as Rehmat Ullah v. Ali Muhammad (1983 SCM R 1064) wherein it is laid down that if any question has been determined by a tribunal or a statutory authority it cannot be re-agitated before a Civil Court on the general principles of res judicata. It is an accepted position that general principles of res judicata can be made applicable by Courts where the Code is not applicable, because disputes once decided must attain finality at some stage. However, we may observe that where section 11 of the Code is not applicable general principles of res judicata have to be applied with care and technicalities have to be avoided.
16. ' However, principles of statutory res judicata, or the general principle of res judicata, are applicable only if an issue has been tried and finally decided. It if it not so res judicata has no application.
17. Section 11 is as follows:--- "11. Res Judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
18. ' Where section 11 is not applicable, general principles of res judicata are, broadly speaking, the k. Ie.
19. ' The previous partition application filed by the appellant was rejected on the ground that the appellant was in possession of land in excess of his share. This was a technical ground on which the application was dismissed. If land is joint property every joint owner has right to get it partitioned and if an application is made partition has to take place by metes and bounds. The partition was not ordered in the previous round and, thus, right remained unaffected in spite of the dismissal of the partition application. At the most it can be said that in the previous round it was decided that a person who is holding' land in excess of his share cannot seek) partition. Leaving aside the question whether this view has any legal warrant, in the present proceedings no such question has been raised. We have already seen that the previous application was dismissed at the time when appellant Said Muhammad had been put into possession by the Sub-Divisional Magistrate under orders of the Revenue Minister and in this view of the matter the Revenue officials gave the finding that he was holding possession of the land in excess of his share. However, the appellant was subsequently dispossessed therefrom under orders of the High Court and that objection is no longer available.
20. ' In the written statement filed by the appellant in reply to the writ petition the objection about maintainability of a second partition application was met by the appellant in para.4 of the written statement:--- "In reply to objection of estoppel it is stated that respondent No,3 (Said Muhammad) did file an application for partition but during its pendency an application was moved before the Revenue Minister with a request that handing over of possession may be arranged. This application was accepted and respondent No,3 was given possession which was taken from the writ petitioners.
21. This order was quashed by the High Court. Due to implementation of the order of the Revenue Minister respondent No,3 became in excess of five marlas. When this order was quashed and possession was given back to the writ petitioners respondent No,3 was left with possession of land which was short by fourteen kanals and two marlas. The finding that respondent No,3 was in possession of land which was in excess of fifteen marlas was given by the Revenue Assistant when Said Muhammad was in possession due to the orders of the Revenue Minister." (Translated).
22. ' This averments was supported by an affidavit and certified copies of Revenue which remained un-rebutted. No replication was filed in the case as is evident from the order passed by the learned Judge on 1st October, 1997. Therefore, it cannot be said that any matter which had been finally decided in the previous application has been raised again in the fresh application.
23. ' In a recent judgment of this Court announced by the Full Court in Civil Appeal No,55 of 1998 titled Mst. Noshia Parveen v. Tariq Pervez, (decided on 15-6-1998) the following observations are directly applicable to the present case:- "6. We have given due consideration to the matter. It may be stated at the very outset that the question as to whether the fraud was committed or not, or whether dower amount had already been paid to the plaintiff-appellant are beyond the scope of the present appeal. It is also conceded by the parties that the application of section 11 of the C.P.C. Has been specifically excluded under the provisions of the Family Courts Act; it is also not controverted that the general principle of res judicata is applicable to the proceedings before the Family Court despite the fact that the statutory res judicata is not applicable to such proceedings. However, the general principle of res judicata is circumscribed by certain limitations, i,e, existence of jurisdiction, proper inquiry and sufficient material to decide the controversy etc. In the instant case, the suit was dismissed without recording any evidence merely because previously Mst. Noshia Perveen, appellant, had stated before the Court that she did not want any relief from the Court.
7. So far as the question of res judicata is concerned, it may be stated that even in case of statutory res judicata envisaged under section 11 of the C.P.C. It is necessary that a point in issue in the subsequent proceedings should have been finally adjudicated upon and decided by a Court or a Tribunal in the earlier proceedings. In the instant case, as has been indicated above, the question as to whether the dower amount was due to the plaintiff-appellant or not was not finally decided one way or the other; the suit was dismissed merely on the statement on behalf of the plaintiff- appellant. Therefore, it is not correct to suggest that as previous suit for recovery of the dower amount was dismissed in the circumstances stated above, the subsequent suit was barred by res judicata."
24. In light of the foregoing conclusions the appeal is accepted and the writ petition is dismissed. It follows that orders passed by the Member Board of Revenue and Commissioner shall stand restored. Costs will follow.