1. This revision is directed against the judgment passed by the learned Additional District Judge, Sanghar upholding the order dated 26-8-1975 passed by the learned Civil Judge, Shahdadpur, rejecting the plaint under Order VII, rule 11, C. P. C., in the suit filed by the applicants.
2. The plaint filed by the applicants read as under :- "(1) That the land shown in Schedule 'A' annexed hereto was jointly owned by the plaintiffs and the defendant No. 1.
(2) That on 12-12-60, the plaintiff and the defendant No. 1 privately partitioned the said land and the partition was reduced in writing. According to the partition, the land shown In Schedule 'B' went to plaintiffs Nos. 1 to 3, the land shown in Schedule 'C went to the plaintiffs Nos.4 to 6, the lard shown in Schedule 'D' went to Haji Behram son of Rahim Khan who has died on 10-7-71 and has been succeeded by plaintiffs Nos. 7 to 9, and the land shown in Schedule 'E' went to the defendant No. 1.
3. In consideration of the said partition an additional area of 16-37 Acres bearing Serial Nos. 246, 248 and 249 of Batri which were the exclusive property of the plaintiffs also went to the defendant No. 1.
(3) That after the partition, the plaintiffs and the defendant No. 4 have been in peaceful separate possession of their respective holdings of land.
(4) That the plaintiffs have spent lot of money over their respective holdings on levelling, gardening and improving the land. Some of the land has been made fit for irrigation by W. C. Previously it was a Charkhi land.
(5) That the defendant No. 1 after the death of Haji Ebrahim who was Mukh.Khatedar started to avoid the partition done on 12-12-60 and now wants fresh partition of the land as shown in Schedule W.
(6) That the defendants 2 and 3 who are father and son Inter se have threatened to take over the possession and water rotation of the land of their own choice hence this suit for declaration and injunction.
(7) That the causes of action arose about a week, back when the defendants threatened to take over the possession of the land of their own choice.
(8) That this Court has jurisdictionas the land is situated within the jurisdiction of this Court.
(9) That the suit is valued at Re. 700 for declaration and injunction as a case consequential relief and court-fee of Rs. 15 is paid herewith. Value for the purpose of jurisdiction of the Court is same.
(10) That the plaintiff's pray as under:-
(i) That it he declared that the land shown in Schedule 'A' stands partitioned among the plaintiff's and the defendant No. 1 in such a way that the land shown in Schedules B, C and D belongs to plaintiffs No s 1 to 3, 4 to 6, 7 to 9 respectively and the land shown in Schedule E plus the land of 16- 37 Acres of deh Batri belongs to the defendant No. 1.
(II) As a consequential relief the defendants be restrained from interfering with the respective holdings of the plaintiffs as shown in Schedules B,. C and D in any manner whatsoever directly or indirectly.
(iii) Costs of this suit and arty other just and proper relief may be granted:'
4. The suit was contested by the respondent who in their joint written statement denied that the private partition, as alleged, over took place or was acted upon between the parties and claimed that the land shown in Schedule 'A' was joint property of the applicants and the respondent No. 1 and that they had been enjoying and appropriating its produce proportionately to their respective undivided shares in the joint holding till 2-3 years back when the respondent No. 1 was decided his legitimate share in the produce whereupon he filed an application before the Deputy Collector Shahdadpur for partition of the said land which was still pending disposal but the applicants in order to avoid the partition and harass the respondenthad filed the present suit in the Civil Court which should be dismissed.
5. Alongwith the suit, applicants applied for temporary injunction while the respondents applied for appointment of Receiver. The trial Court by one common order granted temporary injunction but refused appointment of receiver and the order was maintained in appeal by the learned District Judge. The respondent No. 1 went in revision before the High Court against the grant of temporary injunction and refusal of appointment of a Receiver. The High Court by its order dated 30-6-1975 maintained the status quo and directed the trial Court to dispose of the suit within four months.
6. On 29-71975, however, the respondent filed an application before the trial Court under Order VII, rule 11, C. P. C. For rejecting the plaint on the ground that the suit was barred in view of the provisions of section 172(1)(2) (xviii) of the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the Act).
7. The trial Coutt upheld the objection and rejected the plaint by its order dated 26-8-1975, holding to the effect that, reading of the prayer clause of the plaint showed that the plaintiffs/applicants wanted to get the private partition, which was disputed by the defendants/respondents, confirmed by civil Court and 'was sot a question of title simpliciter' and since a Revenue officer was empowered under section 147 of the Act to grant such confirmation, jurisdic--petition of the civil Court was barred in view of the provisions of section 171(1) (2)(xviii) of the Act. Applicants challenged the order of the trial Court in appeal which was dismissed by the learned Additional District Judge by his order dated 18-12-1975. Relevant part of his order reads as under :- 'Admittedly appellants claim title In the suit land on the basis of alleged private partition which is denied by the respondents. The question raised therefore, is connected with or is arising out of partition proceed--ings of which Deputy Collector Shahdadnur is seized of in this view of the matter, In my considered view clause (xviii) of section 172(2) of West Pakistan Land Revenue Act, 1967 attracts application to tile facts of the present case. Since Revenue Officer is empowered under section 147 of the said Act to afire partition if any, privately effected as alleged by the appellants, civil Court cannot under section 172 (2)(xviii) entertain suit relating to or arising out of such partition.
8. There is ample evidence on record to show that though partition was allegedly made in 1960, Khata continued and remained joined between the parties. My attention has been drawn to Special Power of Attorney Exh. 36 which was executed by the parties in 1964 according to which suit land was hold jointly by the parties. I: any partition was effected as alleged in 1960 there would have naturally been some reference to alleged partition. My attention was also invited to Exh. 37 which is mortgaged reed according to which land in question was mortgaged with Agricultural Development Bank. Even in this document property was shown as joint. There is absolutely no evidence on record nor even alluded to by appellants that Khatta was mutated in the name of the parties according to share allegedly parti--tioned between them. On the contrary village Form No. VII indicates that suit land is held by the parties jointly and no private partition was effected or acted upon if made orally. In the circumstances it is legitimate to draw an inference that appellants in fact, have filed the suit to defeat the partition proceedings pending before the Deputy Collector."
9. Mr. Mirza Qadeer Beg, learned counsel for the applicants, repeating the contentions raised by him before the appellate Court below, submitted that the case of the applicants in the plaint was that after the joint property was privately partitioned in 1960 and the applicants and respondent No. 1 were put into separate possession of their respective holdings as shown in the respective Schedules, they became the exclusive owners thereof and when those rights were denied by the respondents, the suit filed by them for declaration of title to the suit land was competently filed under section 42 of the Specific Relief Act, and being a suit for declaration of title and not affirmation of private petition, section 147 of the Wont Pakistan Land Revenue Act did not apply and the suit was not barred under section 172 of the Act and the civil Court had the jurisdiction. Learned counsel next submitted that since the suit contained two prayers, one for declaration and the other for injunction, the plaint could not be rejected under Order VII, rule 11, C. P. C., as the Court was, in any case, competent to grant the relief of injunction. Learned counsel lastly submitted that after the High Court in its order dated 30-6-1975 had directed the trial Court to dispose of the suit within four, months, the application filed by the respondents for rejecting the plaint at such belated stage suffered from serious laches and ought to have been dismissed on the ground alone.
10. Mr. Mohammad A.I Chohan, leaned counsel for the respondents, in reply contended that no private partition of the joint land had been in fact affected between the parties in that, firstly, the alleged partition deed Exh. R/I slid rot contain the names of the plaintiffs/applicants Nos. 2, 3 and 6 ; secondly, the partition dead did not mention about delivery of possession of the land ; thirdly, the partition deed was not witnessed by any one as provided by section 68 of the Evidence Act ; fourthly, the village Form VII still showed the respondent No. 1 as co-sharer to the extent of 25 paisas ; fifthly, the special power of attorney (Exh. R/24) and the mortgage deed executed with the Agricultural Development Bank in the year 1964 for obtaining loan showed that the parties held the property jointly ant thus, the suit fled by the applicants was in fact for affirmation of the private partition of joint holding and not for declaration of title and since a Revenue Officer was empowered to grant such affirmation under section 147 of the West Pakistan Land Revenue Act 1967 the suit was barrel! Is view of the provisions of section 172 (1) (21 (avid) of the Act and in support relied upon PLD 1973 Note 89, PLD 1967 Pesh. 343, PLD 1976 131 .5 and PLD 1965 Rev. 69.
11. The question for consideration in this revision application is whether the Courts below in rejecting the plaint of the applicants under Order VII, rule I1 (d), C. P. C. Acted in their jurisdiction with material irregularity.
12. The Courts below have rejected the plaint for the reason that the reading of the prayer clause of the plaint showed that the plaintiffs/ applicants were, in fact, seeking affirmation of the private partition and no". Declaration of title simpliciter and since a Revenue Officer was empowered under section 147 of the West Pakistan Land Revenue Act to grant such affirmation, jurisdiction of the civil Court was barred under section 172 (1) (2) (xviii) of the Act.
13. But the prayer clause could not be read in isolation and divorced from the case set up by the plaintiffs/applicants in the plaint. Indeed, as observed in PLD 1969 Dacca 82, legislature has not restricted the enquiry by the Court under Order VII, rule 11 (d) to a consideration of the prayer portion of the plaint only. The clear mandate to the Court under the above rule is A that the conclusion that a suit is barred by any law must be based on the statement in the plaint that Is, the Court must apply its mind to the case of the plaintiff as set out in the body of the plaint as a whole by assuming all the averments made therein to be true in manner and form without taking into consideration the pleadings raised in defence of the suit. Find the Courts. Therefore, considered the prayer clause in the proper perspective of the case set up by the plaintiffs/applicants in the body o<-- the plaint in the light of the above considerations, they would have noticed that their ease therein simply was that property shown in the Schedule 'A' was originally held jointly by the applicants and the respondent No. 1 but it was privately partitioned by the parties on 12-12-1960 in the manner that the applicants respectively received the lands shown in the Schedules B, C and D, while the respondent No. 1 received the lands shown in the Schedule E and they were put into separate possession of their respective lands of which they thereafter became the exclusive owners and the applicants having thereafter spent considerable money In improving their lands and mating it fit for cultivation and peacefully enjoyed its possession, their rights as exclusive owners of the land could not be denied by the respondents and the latter hack no right to interfere with their possession of the writ lands. This then being the statement of the case of the plaintiffs in the plaint, they were in substance seeking a declaration of title to the suit lands as its exclusive e owners with the consequential relief of retraining the respondents from interfering with their possession and not affirmation of the private partition, which according to them bad become past and closed transaction after it was made on 12-12-1960 and was acted upon. And indeed, the question whether the division has or has not served the joint title and converted joint property or any portion thereof into property held in severalty is a question of title and not a mere question as to property to be divided. Farther proper reading of the prayer clause, drafted though it is with simplicity of a mofussal lawyer, would show that even therein the plaintiffs hay in substance sought a declaration of their title to the suit lands as their prayer 'C therein is "that it be declared . . . . . . .
14. That the land shown in Schedules B, and C, belongs to the plaintiffs 1 to 3, 4 to 6 and 7 to 9 respectively". In this view -)f the platter, section 147 of the Act was, indeed, pat attracted in the instant case, so as to bar the jurisdiction of the civil Court, its provisions being, in any case, optional and not mandatory and that there existed no corresponding provision in the said Land Revenue Code which held the field in the year 1960, when the partition is alleged to have been made, apart.
15. Perusal of the orders of the Courts below, particularly the order of the Ist appellate Court reproduced above, would appear to show that in arriving at their conclusion they have also taken into consideration and accepted the avermerts made by the respondent in defence of the suit which, however, being germane to the decision of tile suit on merits, could snot have been considered by them at that stager dealing as they were with rejection of the plaint and not dismissal of the suit.
16. Having thus held that the suit filed by the plaintiffs/applicants was not for affirmation of the private partition but was for declaration of title and, therefore, section 147 of the Act was not attracted, it only remains to be considered whether jurisdiction of the civil Court was still barred in view of the provisions of section 172 (2) (xviii) of the Act which read as under :- "172.-(2) Without prejudice to the generality of the provisions of sub' section (1), a civil Court shall not exercise jurisdiction over any of the following matters, namely :- (xviii) any claim for partition of an estate or holding, or any Question connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought I"
17. Now, this being a case of rejecting a plaint, it will be noticed that in the plaint itself, no claim for partition o'' estate or holding was made. On the other hand, clause (xviii) provides for the bar of jurisdiction of civil Court to operate only in a case where questions connected with or arising out of proceedings for partition, not being a question as to title in the property o which partition is sought is raised. Accordingly, even if it be assumed that respondent No. 1 had filed an application before the Deputy Collector for partition and this could be taken into consideration for the purpose of the jurisdictional bar even though it involved going beyond the plaint. It cannot be disputed that !n the facts and circumstances of the case, a question of title in the land of which partition was sought by the respondent No. 1 was involved, so that, even on this assumption, the jurisdiction of the civil Court was not barred under the aforesaid clause (xviii) of subsection (2) of section 172 of the Act.
18. The Courts below, do rot, however, appear to hay taken due notice of this exception provided in the clause. The Courts below were, therefore, wrong in holding that the jurisdiction of the civil Court was barred and acted in their jurisdiction with material irregularity by rejecting the plaint In the instant case. As to the various cases cited by the learned counsel for the respondents, none of them covers the facts of the instant case and are, therefore, not applicable.
19. No other contention was raised.
20. For the aforesaid reasons, I allow this revision application and set aside the orders passed by the Courts below rejecting the plaint and direct that the suit be decided on merits according to law.