' On 3-2-1982 the petitioners and respondents Nos.2 to 10 filed a suit against respondent No,
1. In the plaint it was stated that in the first instance Ch. Ghulam Murtaza, the father of the petitioners and respondents Nos.2 to 10 and Allah Ditta father of respondent No,1 purchased the State land measuring 78 acres and 15 Marlas in auction in May, 1963. This land is located in Chak Kauriana, Tehsil and District Jhang. Thereafter, Aziz Ahmad, petitioner No,2 and respondent No,1 purchased 207 Kanals and 5 Marlas of State land in Chak No,264, Tehsil and District Jhang. This land was purchased in September. 1963; that the petitioners and plaintiffs/respondents on the one hand and respondent No,1 on the other effected a private partition of the said entire land. According to the agreement the entire land in Chak No,264 went to respondent No,
1. Chak Kauriana land measuring 25 acres, 1 Kanal, 5/2 Marlas went to respondent No,1 while land measuring 52 acres, 7 Kanals and 9 Marlas went to the petitioners and plaintiffs/ respondents. The parties took over possession of the land in the manner stated in para. 7 of the plaint in the year 1968 and a report was recorded in the Roznamcha Waqiati in Chak Kauriana on 8-6-1968. Thereafter the parties started cultivating their respective lands and got installed their separate tube-wells and the entries were made in the Khasra Girdawari as well as periodical record accordingly; that proprietary rights in respect of Chak No,264 were conferred in the year 1973 while in respect of Chak Kauriana these were conferred in 1975 and as such the parties have become owners of the respective lands, in their possession; that in order to get the said private partition concerned respondent No,1 himself filed an application before Tehsildar. Jhang. The statement of petitioner No,1 was recorded on 1-8-1978 who accepted the contents of the said application. Similarly, respondent No,1 got his statement recorded and the file was accordingly consigned; that the respondent is a Senior Revenue Officer.
During the consolidation operations he got half of the land in Chak Kauriana in his Wanda. An appeal was filed against the confirmation of the scheme dated 31-8-1981 which was dismissed by the Collector on 30-12-1981. He found the matter to be of a civil nature and referred the parties to a Civil Court; that respondent No,1 also filed an application for partition of the land in Chak No,264 which proceedings are pending. With these averments a declaration was sought that the petitioners are owners of the suit-land and that respondent No,1 has got nothing to do with it and that with the Consolidation Scheme and order dated 30-12-1981 of the Consolidation Collector ineffective upon the rights and title of the petitioners. In his written statement respondent No,1 admitted purchase of land jointly but denied the factum of private partition. Regarding the proceedings for confirmation of private partition it was stated that petitioner No,1 was not authorized to give a statement on behalf of his father and as such the said proceedings are of no effect. He supported the consolidation proceedings. An objection was also raised that the private partition was hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912. Issues were tramed. Evidence of the parties was recorded. The learned trial Court, decreed the suit vide judgment and decree dated 25-1-1988. A first appeal filed by respondent No,1 was heard by a learned Additional District Judge, Jhang, who allowed the same vide judgment and decree, dated 18-7-1990 and dismissed the suit of the plaintiffs.
2. Learned counsel for the petitioners contends that it stood proved rather admitted on record that the private partition did take place in the manner stated in the plaint and that the learned Additional District Judge has gone by sheer technicalities in setting aside the judgment and decree, passed by the learned trial Court. Learned counsel for respondent No,1, on the other hand, argues that proprietary rights had not been conferred in the year 1968 and as such the private partition could not have effected without permission of the Collector as envisaged by section 19 of the said Act.
3. I have gone through the copies of the records appended with the civil revision with the assistance of the learned counsel for the parties. I find that the P.W. Including Nazir Ahmad, P.W.3 have made statements in accordance with the contents of the plaint. Respondent No,1 appeared as D.W.2. In his examination-in-chief he proceeded to state that Nazir Ahmad had made an offer that 52 acres of land in Chak Kauriana be given to him and that respondent No,1 should take 26 acres of land in the said Chak and the entire land in Chak No,264. According to respondent No,1 there was some difference between the value of the two lands.
' Nazir Ahmad had offered 6 acres of land more. However, a compromise could not be effected and he filed an application for partition. Nazir Ahmad got recorded his statement but he had to file a power of attorney which he did not do; that after the statement father of Nazir Ahmad, etc., died and thus the matter ended. However, in his cross-examination he has proceeded to state that the parties had been cultivating the land separately; that they had installed separate tube wells and they cultivated the land. The land had been privately partitioned in the year 1969, and it was under the said private partition that the land was being separately cultivated. The plaintiffs/petitioners had separate tube wells and the expenses were being borne separately. He states that he is not aware of the contents of the Khasra Girdawari. He was unable to deny the particulars of the private partition put to him. He then admits that 112 Kanals of land which was being cultivated by the petitioners had gone to him in consolidation. He was unable to state any area that was in his possession and had gone to the plaintiffs. He admits that in the year 1968 he got the land of his family demarcated. He also got demarcated his land and that of his father. He does not remember that the demarcation was done by the Girdawar and report was made. He admits having made statement (Exh.P.2) before the Tehsildar on 1-8-1978. He was confronted with the said document and admitted the signatures on the same. The entries in the Revenue Record, particularly Khasra Girdawari from Rabi, 1968 onwards fully support the contentions of the petitioners and so is the case with the periodial records. Exh.P.2 is the copy of the statement of respondent No,1 made before the Tehsildar on 1-8-1978, whereby he confirmed the private partition as stated by Nazir Ahmad in the same document, Exh.P.4, is the report of the Naib-Tehsildar while Exh.P.5 if the order of the Naib- Tehsildar, Jhang confirming the partition as reported by the parties.
4. In view of the said evidence on record it stands established that a private partition did take place and was duly implemented as stated in the plaint. The findings of fact to the said effect have, therefore, been rightly recorded by the learned trial Court. So far as the learned Additional District Judge is concerned, I find that even he has not disagreed with the said findings of fact. He, however, proceeded to non-suit the petitioners with reference to section 19 of the said Act of 1912. I do not find any such restriction spelt out from the said provision of law so far as the private partition is concerned. Besides the learned Additional District Judge lost sight of the fact that by the time the matter came before the Civil Court the proprietary rights had in fact been conferred upon the parties and there was no question of any bar as contained in the said provision of law. Learned Additional District Judge then proceeds upon a long discourse that when the suit had been converted into a suit for possession its value ought to have been increased. He then finds himself constrained to agree that record does indicate that the parties had agreed to a private partition in the year 1968. To my mind if the Revenue Officer failed to proceed in the manner prescribed by law, the same does not at all derogate from the admitted facts that the partition did take place and was acted upon by the parties. I may state here that the certified copy of the order passed by the Collector on 30-12-1981 has since been placed on record and I am constrained to observe that the learned Additional District Judge has proceeded to keep down verbatim the said order that had been passed in Vernacular by the Collector Consolidation. He, however, very conveniently lost sight of the fact that even the Collector was constrained to hold that this involves the question of title and referred the parties to a Civil Court. In this view of the matter the findings of the learned Additional District Judge that the jurisdiction of the Civil Court was barred bounds on perverse. The effect that the consolidation proceedings had qua the title and possession of the plaintiffs in the suit is evident in the very statement of respondent No,1 himself as D.W.2.
5. A pure question of title was involved. The petitioners/plaintiffs had come to the Court that they are owners of the suit-land by virtue of the private partition and after the conferment of the proprietary rights. This said facts stood proved rather admitted on record. The petitioners having been proved a valid title were entitled to the relief claimed by them and only the Civil Court would have granted them the relief being claimed by them. I, therefore, find that the learned Additional District Judge has certainly acted with material irregularity in the exercise of his jurisdiction while passing the impugned judgment and decree. This civil revision is accordingly allowed. The judgment and decree dated 18-7-1990 of the learned Additional District Judge is set aside while that dated 25-1-1988 of the learned trial Court decreeing the suit of the petitioners/plaintiffs is restored. No orders as to costs.