' On 30-7-1981 respondents Nos.1 and 2 filed a suit against the petitioner and the other respondents.
In the plaint it was stated that the suit-land used to be joint between respondents Nos.1 and 2 on the one hand and the petitioner and his brother Muhammad Ikram on the other; that the land was privately partitioned and the area abutting on a road fell to the share of respondent No,1 where he raised his house. In the same breath it was stated that the suit-land apart from the said area so segregated remained joint and under cultivation; that in 1956 respondents Nos.1 and 2, 3 and 4, purchased 5 Kanals, 19 Marlas of land from said Muhammad Ikram and with the consent of petitioner constructed a Haveli on a portion of the suit-land; that the petitioner is a permanent resident of Karachi and the entire land is in possession of said respondents Nos.1 and 2; that practicing collusion respondent No,1 procured a decree for partition from the Revenue Officer. This decree passed on 4-3-1980 was stated to be void on the ground that it is collusive; that the land already stood privately partitioned and there was no question of partition and that it is violative of M.L.R.115. The petitioner in his written statement objected that the Civil Court had no jurisdiction in the matter; that respondents Nos.1 and 2 had appeared in the course of partition proceedings and they even filed an appeal which was dismissed. It was denied that any private partition was effected. Other allegations were also denied. Following issues were framed:--
(1) Whether the plaintiffs have no cause of action? OPD1
(2) Whether the Court lacks jurisdiction in the matter? OPD1
(3) Whether the suit is barred by time? OPD1
(4) Whether the plaintiffs are estopped by their words and conduct? OPD
(5) Whether the suit is not maintainable in its present form? OPD1
(6) Whether the suit-land was privately partitioned amongst the parties? If so, when and with what effect? OPP
(7) If Issue No,6 above is proved which parties fall to the share of each party? OPP
(8) Whether the partition effected by the Revenue Officer is nullity, vitiated by law and void qua the plaintiffs and the defendants Nos.2 and 3? OPP
(9) Whether the suit is vexatious? If so, is the defendant entitled to special cost under section 35-A of C.P.C.? OPD1
(10) Relief.
' Evidence of the parties was recorded. Under Issue No,6 the learned trial Court found that there had been ncoprivate partition and the land is joint. Issue No,7 was accordingly found to be redundant.
Under Issue No,8 the learned trial Court recorded a finding that since on a portion of suit-land comprising Khasras Nos.5361/354 and 5363/355 houses stand constructed and this would take the said area out of the definition of land and consequently the Revenue Officer would not be having jurisdiction to partition the same. The partition qua Khasra No,5365/356 was held to be valid. On the basis of this latter finding the suit was partly decreed accordingly vide judgment and decree, dated 27-9-1987. Both the parties filed first appeals. These were taken up together by a learned Additional District Judge, Chakwal. The learned Additional District Judge upheld the findings of the learned trial Court on Issue No,2. He also agreed that there had been no private partition. The judgment qua Issue No,8 appears to me to be moving in circles. Be that as it may, the learned Additional District Judge found that the partition order passed by the Revenue Officer is bad being violative of para. 22 of the M.L.R.
115. In coming to the said conclusion the learned Additional District Judge had to upset the findings of the learned trial Court regarding existence of construction and the probable user of land for the purposes of construction. The appeal filed by the respondents Nos.1 and 2 was allowed and the result was that the suit was decreed in its entirety by the learned Additional District Judge, Chakwal vide judgment and decree, dated 28-3-1991. The appeal filed by the petitioner was dismissed.
2. Mr. Muhammad Munir Piracha, learned counsel for the petitioner argues that in view of the specific provisions contained in section 172 of the Punjab Land Revenue Act, 1967 Civil Court would not be having the jurisdiction and in any case the suit was premature inasmuch as remedies available under the said law had not been exhausted: Mr. Waqas Rehman, learned counsel for respondents Nos.1 to 3, on the other hand, argues that this civil revision would not be competent in view of concurrent findings recorded by the learned Courts below and that the partition order of the Revenue Officer being violative of M.L.R. 115 was rightly declared to be void by the learned Additional District Judge.
3. I have gone throuh the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. I have already referred to the material, contents of the pleadings of the parties as also of The two impugned judgments above. It stands concluded in the said two judgments that there was no private partition and that the land remained joint. No question of title thus arose in the partition case before the Revenue Officer in terms of section 141 of the Punjab Land Revenue Act, 1967 to be decided in accordance therewith. Contrary to the contention of the learned counsel for the contesting respondents the two Courts have differed while stating the grounds for declaring the order to be partially void in the case of trial Court and wholly void in the case -of learned Court of appeal. The latter has held that the land was agricultural and that is why it has proceeded to apply the provisions of M.L.R. 115 to conclude that the partition order is void.
4. Thus all that remains to be seen in this civil revision is as to whether the learned Additional District Judge primarily a Court exercising Appellate Civil jurisdiction would be competent to adjudge the partition order on the touchstone of the provisions ,of M.L.R.115, the answer to the question Must be in the negative. The Supreme Court of Pakistan in the case of Mst. Aisha Bibi v.
Nazir Ahmad and 10 others 1994 SCM R 1935 upheld the following declaration of law made by this Court while deciding R.S.A. No,16 of 1991:-- "All the orders passed by the hierarchy of officers under the Land Revenue Act were without jurisdiction, inasmuch as, the power to declare any transaction as offending the provisions of Martial Law Regulation 64 vested in the Land Commission or the Land Commissioners appointed thereunder and the jurisdiction of the Civil Court as well as the other Tribunals/Authorities were expressly excluded."
'By anology the Rule of law would be applicable to an order of partition as well. I may state here that the further observations made in the said I judgment by the Supreme Court of Pakistan are that even if a Revenue Officer was of the view that any provisions of the M.L.R.115 have been violated, his duty was to refer the matter to the Land Commissioner or the Deputy Land Commissioner who was supposed to be a principal officer of the District concerning the land disputes.
5. The learned Courts below have found as a fact that respondents Nos.1 and 2 were duly served in the course of partition proceedings and they even filed appeals which were dismissed. Any objection qua violation of M.L.R. 115 was to be raised before the Revenue Officer and to be dealt with in accordance with the said authoritative pronouncement of the apex Court. Thus neither the Revenue Officer dealing with the case nor the Civil Court and by extension the learned First Appellate Court could have taken cognizance of the violation of M.L.R.115 and to proceed to declare the partition order to be void. Needless to add that the relevant provisions pressed into service by the learned Additional District Judge have since been declared to be repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the Supreme Court of Pakistan. This civil revision is accordingly allowed. Both the judgments and decrees passed by the learned Courts below are set aside and the suit filed by respondents Nos.1 and 2 is dismissed with costs throughout.