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Official Citation: 2006 YLR 13
Court / Jurisdiction: Supreme Court / High Court of Pakistan
This judicial decision was delivered by the Supreme Court / High Court of Pakistan. The matter involves proceedings between Petitioner and Respondent, officially reported as 2006 YLR 13. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2006 YLR 13
Stereo.HCJDA 38. JUDGMENT SHEET. IN THE LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI. JUDICIAL DEPARTMENT Civil Revision No.190-D of 2012 SAKHI MUHAMMAD, ETC. Versus. HAJI AHMED, ETC. JUDGMENT. MirzaViqasRauf, J. The petitioners herein were arrayed as defendants in the suit for separate possession through partition and permanent injunction instituted by respondents No.1 to 4 (hereinafter referred as “respondents”) with regard to land measuring 7-Kanals 16- Marlas bearing Khewat No.572 Khatooni No.1432 Khasra No.1195 situated in village Tatral, Tehsil & District Chakwal (hereinafter referred as “suit property”). It is averred in the plaint that “suit property” has attained the residential character, which is still joint interse parties and the petitioners are intending to alienate the same in excess of their share. Suit was contested by the petitioners as well as other respondents, who were impleaded as defendants in the suit, who submitted their written statements controverting the assertions contained in the plaint. From the divergent pleadings of the parties, multiple issues were framed. After Date of hearing: 14.09.2021 Petitioners by: Mr. Muhammad Ilyas Sheikh, Advocate. Respondents No.1 to 4 by: Mr. Muhammad Amir Butt, Advocate. Nemo for respondents No.5 to 34.
2 Civil Revision No.190-D of 2012 framing of issues, evidence of both the sides was recorded and finally suit was preliminary decreed vide judgment dated 15th February, 2011. Feeling dissatisfied, the petitioners though preferred an appeal before the learned Additional District Judge, Chakwal but their appeal was dismissed through impugned judgment and decree dated 20th February, 2012, hence this petition under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred as “CPC”). 2. Learned counsel for the petitioners contended that alongwith “suit property” there is some other property, which is joint interse parties. Added that the “respondents” did not include the whole land in the suit and as such suit was hit by partial partition. It is submitted with vehemence that while decreeing the suit, both the Courts below have completely overlooked the factum of private partition interse parties. It is argued that findings of both the Courts below are though concurrent but are the result of gross misreading and non-reading of evidence. In order to supplement his contentions, learned counsel has placed reliance on ABDUL GHAFOOR v. MUHAMMAD SHAFFI and others (2019 CLC 1343). 3. Conversely, learned counsel representing the respondents No.1 to 4 submitted that no cogent material was brought on the record by the petitioners to establish the question of private partition. It is contended that even otherwise private partition would have no impact unless compliance of Section 147 of the Punjab Land Revenue Act, 1967 (hereinafter referred as “Act, 1967”) is made. While adverting to
3 Civil Revision No.190-D of 2012 the issue of partial partition, learned counsel submitted that suit Khasra was the only Khasra, which attained the urban nature. He added that suit was thus maintainable and it was rightly decreed by the Courts below. In order to supplement his contentions, learned counsel placed reliance on MUHAMMAD MUKHTAR and others v. MUHAMMAD SHARIF and others (2007 S C M R 1867), Mst. WALAYAT BEGUM and 3 others v. MUHAMMAD AFSAR and 3 others (2014 C L C 1103) and MUHAMMAD AYAZ and others v. Malik ZAREEF KHAN and others (PLD 2016 Peshawar 8). 4. After having heard learned counsel for the parties at considerable length, I have perused the record. 5. It is an admitted fact on all hands that parties to the lis are co- owners. Suit was instituted by the “respondents” seeking partition of property forming part of Khasra No.1195. Suit was mainly resisted on two-fold grounds. Firstly, it is not proceedable as private partition has already taken place interse parties and secondly it is hit by principle of partial partition. From the divergent pleadings of the parties, though multiple issues were framed by the learned Trial Court but issues No.2 and 3 clinches the controversy, which read as under: - “2. Whether the suit property was privately partitioned about 50/55 years ago and suit of the plaintiffs is not maintainable? OPD 3. Whether the suit of the plaintiffs is partial one? OPD” 6. Adverting to the issue of private partition, it is observed that onus to prove this issue was upon the petitioners. To this effect,
4 Civil Revision No.190-D of 2012 Muhammad Munir, one of the petitioners appeared as PW-1. He deposed that in terms of private settlement, the petitioners are in possession of the property falling in their share. Similarly, other co- owners are also holding their respective possession as per their entitlement. No written instrument was, however, produced to establish the private partition. 7. Section 147 of the “Act, 1967”, provides a mechanism for affirmation of partitions privately effected, which reads as under: - 147. Affirmation of partitions privately effected. (1) In any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. (2) On receiving the application, the Revenue Officer shall enquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under sections 143, 144, 145 and 146, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter.” From the bare perusal of above referred provision of law, it clearly evinces that if a party is relying upon some family settlement with regard to partition of joint land, any party interested therein has to apply to the Revenue Officer for obtaining an order for affirmation of such partition. In absence of any such order, party relying upon the private partition would be precluded to claim any right therefrom. Furthermore, Chapter 18 of the Land Record Manual provides a procedure in partition cases and clause 18.1 especially deals with private partitions. To understand the true import of private partition, guidance can be sought from MUHAMMAD MUKHTAR and others v. MUHAMMAD SHARIF and others (2007 S C M R 1867). Reference in this regard can also be
5 Civil Revision No.190-D of 2012 made to Mst. WALAYAT BEGUM and 3 others v. MUHAMMAD AFSAR and 3 others (2014 CLC 1103). 8. After having analyzed the evidence on the above perspective, an inference can easily be drawn that the petitioners have failed to lead any cogent evidence with regard to private partition. So, issue to this effect was rightly decided by the Courts below. 9. Adverting to the question of partial partition, it is observed that “suit property” is part of Khewat No.572, which consists of 11 Khasra numbers including Khasra No.1195, subject matter of suit. Total land in the Khewat is 54-Kanals but the “respondents” have instituted the suit seeking partition of land measuring 7-Kanals 16-Marlas forming part of Khasra No.1195 on the ground that it has attained urban character whereas rest of the khasras are agricultural. To this effect, Muhammad Azam, respondent No.2 appeared as PW-1. He deposed as follows: - یہ درست ہے کہ اراضی متدعویہ کے عالوہ بھی مابین فریقین مشترکہ اراضی ہے۔ 10. It is an undeniable fact that “suit property” is part of Khewat No.572, which consists of 11 Khasra numbers and the property falling therein is joint interse parties. In order to justify that suit for partition is proceedable, reliance has been heavily placed on MUHAMMAD AYAZ and others v. Malik ZAREEF KHAN and others (PLD 2016 Peshawar 8) wherein it was held that suit for immovable undivided property situated in Abadi Deh shall be triable exclusive by the Civil Court whereas immovable undivided property outside Abadi Deh shall
6 Civil Revision No.190-D of 2012 be partitioned by revenue hierarchy. Suffice to observe that facts of the said case are quite distinguishable as in the said case partition of two houses situated inside Abadi Deh was sought, which was though resisted by the defendants in the suit but their objection was turned down on the ground that they have failed to point out any other joint immovable property within Abdi Deh in the revenue estate. It was also held that partition has to be sought for all the undivided immovable property and partial partition thereof would not be competent. In the present case, “suit property” is part of Khewat No.572 and it is not separable from the property situated in other Khasra numbers of the same Khewat. The principles thus laid down in the judgment MUHAMMAD AYAZ and others v. Malik ZAREEF KHAN and others supra are not applicable to the present case. In this context, reference can be made to ABDUL GHAFOOR v. MUHAMMAD SHAFFI and others (2019 CLC 1343) wherein while dealing with the similar proposition, this Court held as under: - “5. Arguments heard. Record perused. 6. There are two primary questions involved in this case which require determination: i) Whether the suit land is agricultural in nature, if yes, then, how the civil court has jurisdiction to adjudicate the matter. (ii) What type and extent of constructions on agricultural land do not exclude it from the purview of section 135 of the Punjab Land Revenue Act, 1967, for the purposes of partition proceedings? 7. Firstly, I come to the first question, that whether the suit land is agricultural land or not. In this regard, I perused the record available on the file wherein Jamanbandi for the year 2008 was exhibited as Ex.P-1 in which it is mentioned that whole Khewat is relating to land 99-Kanals, 10-Marlas and out of total said land, the land consisting of 93-Kanals and 19-Marlas is cultivable whereas only 5-Kanals, 11- Marlas is "Ghair Mumkan" (non-cultivable). Ex-P-2 which is Khasra Girdawri also shows that major part of land is cultivable. So, it is
7 Civil Revision No.190-D of 2012 manifestly clear that the suit land is agricultural. It is settled law that the matter of partition of agricultural land falls within the exclusive domain of Revenue Officer and the jurisdiction of Civil Court, is barred under the law, therefore, a decree passed by a Civil Court relating to the partition of the agricultural land is without jurisdiction and nullity in the eye of law. In this regard, I am fortified with the judgment of august Supreme Court of Pakistan reported as "Qamar Sultan v. Mst. Bibi Sufaidan" (2012 SCMR 695), wherein it has been held that: "The proposition that when the relief vis-a-vis partition of an agricultural property lay within the jurisdiction of the Revenue Court, any decree passed by the Civil Court in this behalf is nullity in the eye of law, is no doubt correct, but in this case the Civil Court has not passed any such decree. Yes, no secondary evidence has been produced in the Court to prove the signature of the deceased on the application mentioned above but, to our mind that was not necessary, because it was a certified copy of the application thus moved. When considered in this background, we don't think the impugned finding can be said to have been based on misreading and non-reading of evidence or erroneous assumptions of law and facts. We, therefore, do not feel persuaded to grant leave in this case." 8. It would be advantageous to reproduce the sections 135 and 172 of the Punjab Land Revenue Act, 1967: "135. Application for partition.- Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if- (a) at the date of the 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 the date; or (c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof." "172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- (1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act. (2) Without prejudice to the generality of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters, namely:- (i) …………….. (ii) …………….. (iii) …………….. (iv) …………….. (v) …………….. (vi) …………….. (vii) ……………..
8 Civil Revision No.190-D of 2012 (viii) …………….. (ix) …………….. (x) …………….. (xi) …………….. (xii) …………….. (xiii) …………….. (xiv) …………….. (xv) …………….. (xvi) …………….. (xvii) …………….. (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;" The bare reading of above quoted provisions of law makes it very much clear that section 135 of the Act ibid confers power upon a Revenue Officer to make partition of land, on application of any joint owner, whereas. Section 172 of the Act ibid excludes expressly jurisdiction of civil courts in any matter which the Government, Board of Revenue, or any Revenue Officer, is empowered by the Act to dispose of. Hence, in view of above provisions of law, there leaves no confusion to hold that a Civil Court has no jurisdiction to adjudicate upon a suit praying partition of agricultural land. 9. So far as the second question with regard to that what type and extent of constructions on agricultural land do not exclude it from the purview of section 135 of the Act, 1967, for the purposes of partition proceedings, is concerned, there is no any hard and fast rule in this regard, however, it is subject to the peculiar facts and circumstances of every case. However, guidance may be sought from the judgments of Apex Courts as well as of High Courts and from the definition of the term "land" given in section 2(3) of the Punjab Alienation of Land Act, 1900 which is re-produced hereinbelow for ready reference: Section-2: Definition (1)……. (2) ……… (3) the expression "land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes- (a) the sites of buildings and other structures on such land; (b) a share in the profits of an estate or holding; (c) any dues or any fixed percentage of the land-revenue payable by an inferior landowner to a superior landowner; (d) a right to receive rent; (e) any right to water enjoyed by the owner or occupier of land as such; (f) any right of occupancy; and
9 Civil Revision No.190-D of 2012 (g) all trees standing on such land," In view of above mentioned provision of law the term "land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture and further includes the above mentioned provisions of law i.e. 2(3)(a) to 2(3)(g). Whereas, in Section 3(1) of the Punjab Land Revenue Act, 1967 it has been stated that: 3. Exclusion of certain land from operation of this Act.---(1) Except so far as may be necessary for the record, recovery and administration of village cess, or for purposes for survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land revenue. Section 136(b) (iii) of the said Act provides that partition of any land which is occupied as the suit of a town or village, may be refused if, in the opinion of the Revenue Officer, the partition of such property is likely to cause inconvenience to the co-sharers or other persons directly or indirectly interest therein, or to diminish the utility thereof to those person. Plain reading of these enactments reveals that the expression "as the site of any building in a town or village" has been used in the Act of 1900 and the expression "as the site of a town or village" has been employed in the Act, 1967 which clearly shows the difference of both these expressions as in the first expression word "any building" has been used whereas in the second expression said words have been omitted which in my point of view has some rationale as it reflects that an agricultural land (not any building) which is occupied as the site of town or village still remains under the purview of the Act, 1967 unless and until it is not assessed to land revenue, however, agricultural land, viz, the agricultural land in a town or village, is built upon; the same comes out of the scope of the term "land" and quits from the purview of the Act of 1967. I would like to cite here the judgment of this Court in case titled "Muhammad Sadiq v. Abdul Aziz" (1990 CLC 1387) wherein it has been held that: 21. Reading the definitions of the expressions "land", "village immovable property" and "urban immovable property" together, in the light of the guidance to be gained from decided cases, it appears that the essence of the definition of agricultural land is its agricultural or pastural character. In order to determine whether the land is agricultural land, the definition prescribes two tests, one negative that is the property should not be occupied as the site of a building in town or village and the other positive that it should be occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture. Thus, if a land is occupied as the site of any building, the Court must approach the matter by asking itself objectively: (i) whether the locality where it is situate is a town or village; and (ii) whether it is occupied or let for agricultural purposes. If the answer to the first question be in the affirmative, then depending upon its' situation in a town or village, it is either urban or village immovable property; it is not agricultural land. But if it be land occupied or let for agricultural purposes, then the buildings on it are also agricultural land. If the land satisfies the test that it is a site of a building in a town or village, then it cannot be agricultural land and it appears to follow logically that in that case the second question would
10 Civil Revision No.190-D of 2012 not arise. There may be difficulty in drawing the line between the two cases, but a judge of fact should be able to resolve the difficulty. As Lord Simonda said in 1954 A.C. 429, 445: .... I am not as a rule impressed by an argument about the difficulty of drawing the line since I remember the answer of a great Judge, that though he knew not when day ended and night began, he knew that mid-day was day and mid-night was night:' 22. There are many big bungalows and residential houses in the big cities such as Lahore and Faisalabad which have gardens and vacant lands attached to them; in those lands, sometimes crops are sown; but can it be reasonably predicated that such lands or gardens should be regarded as things apart from the bungalows or residential houses of which they form part. Even in some residential localities on The Mall, Lahore, there are houses in which vacant lands attached to them are sometimes used for crop sowing. Yet, they are occupied as the sites of the buildings to which they are attached, as much as the site actually under the building." The portion of said judgment as reproduced above manifestly determined the status of an agricultural land and extent of constructions on agriculture land. 10. In the present case, the appellant filed suit for declaration, partition and possession with permanent injunction against the respondents with regard to the land in dispute, wherein at paragraph No.4 of the plaint he mentioned as under: "یہ کہ مدعا علیہم اراضی متدعویہ پر قابض ہو کر فصالت کاشت کر رہے ہیں بقیہ اراضی پر غیر ممکن، ٹیوب ویل، ڈیرہ، مرغی خانہ، آبادی اور راستہ وغیرہ بنا رکھے ہیں" It is admitted by the appellant that the land is agricultural wherein the respondents have raised illegal construction of tubewell, daira, murgi khana and passage and remaining land is under cultivation by the respondents. The appellant in his examination in chief approximately taken the same stance, however, in place of "Abadi" (آبادی) he mentioned that some "Kothay" کوٹھے have been built. In his cross- examination he stated that there is no existence of poultry farm on the land and there are some houses on the said land. So, there is no any sound proof of Abadi at the disputed land which shows that the said land is not agricultural, rather the same is proved as cultivable. The learned lower appellate Court has rightly relied upon Section 3(2) of the Land Revenue Act, 1967 and held that appellant had not produced any notification of Collector, or special orders of Board of Revenue which show that the land in question has been included within the site of town and village, however, the documents produced by the appellant as Ex.P-1 and Ex.P-2 shows that major portion of disputed property as agricultural land and cultivable (mazrua). As stated above, the suit property being agricultural land comes under the exclusive jurisdiction of Revenue Court and the jurisdiction of Civil Court is barred in this regard. 11. From the above discussion, it can easily be observed that the learned lower appellate Court has passed the impugned judgment after properly evaluating the facts as well as available record. The said judgment is based on reasoning. No misreading or non-reading of evidence has been pointed out by the counsel for the appellant.
11 Civil Revision No.190-D of 2012 11. The above principles were even reiterated in the case of GHULAM RASOOL v. MUHAMMAD KHALID and 2 others (2006 YLR 2289) in the following manner: - 7. I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Document Exh.D.l, 'Wajab-ul-Arz' is not denied by both the parties. It is also admitted between them that Shamlat Deh of village in question was partitioned between the co-owners and this fact has rightly been noted in Exh.D.l. The only controversy appears to be with regard to Khasra No.838 measuring 2 Kanals, 2 Marlas, which according to the petitioners fell to their share at the time of partition as mentioned in Exh.D.1, whereas it is claimed to be joint by the respondents under the same partition. According to Exh.D.l area of entire Shamlat Deh is 105 Kanals, 19 Marlas, which was partitioned among the owners on account of consolidation proceedings and only those parts of Shamlat Deh were kept joint, which were in common use, in form of passages, graveyards etc. and those parts of Iand which were kept joint were decided that will not by used by anybody exclusively. There is a copy of Jamabandi for the year 1953-54 on the record, which was prepared after creation of 'Wajab-ul-Arz' Exh.D.1 and contains as entry in the column of ownership of Shamlat Deh "Hasab Rasad Khewat Bando Bast 1910-11" regarding Khasra No.838 of Khewat No.268, Khatoni No.500. This document shows that after partition of Shamlat Deh Khasra No.838 fell to the share of Muhammad Din son of Mehr Dad predecessor of the petitioners and that is why it was in his possession after partition. According to learned counsel for the respondents Khewat No.268 relates to land, which was kept joint in Exh.D.1, at the time of first settlement in the year 1910-11. This Khewat has six Khasra numbers besides Khasra No.838 and area of this Khata is 105 Kanals, 16 Marlas which, according to stance of the respondents, being joint, was not brought under suit in hand, for partition. A part of Khewat No.268 bearing Khasra No.838 is sought to be partitioned through suit in hand, but this C course is not permissible under law. In a similar situation, matter came up for consideration before a Division Bench of this Court in the case of Chandi Shah v. Bahara Shaha and others (AIR 1930 Lahore 286(1)) and it was held that suit for partial partition should be dismissed. In another matter Honourable Supreme Court of this country in the case of Jan Muhammad and another v. Abdur Rashid and 5 others (1993 SCMR 1463), it was mandated that entire joint holding should be put to partition and part thereof which are not partitionable or under heavy constructions, other co-sharers can be compensated by way of money and it was so held on the principle that possession of one co-sharer in law is possession of all the co-owners. Identical view was taken by an Honourable Division Bench from Karachi jurisdiction in the case of Ghazi Qaiser Pervaiz and another v. Ghazi Faisal Pervaiz and another (2000 CLC 519). Refusal to partition a part of joint holding, has wisdom behind it because some…
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