Abdullah Vs Ghulam Badshah and others

yl

t

v

PESHAU/AR HIGH URT. PESHAU/AR

(JUDTCTAL DEPARTMENT)

IX/.P No. 5046-P 'o

Abdullah and others

V.

Ghulam Eadhsah and others

For the petitioners M/S Muhammad Anwar, Advocate For the Respondents M/S lrfan Ali, Khalid Mehmood, Amir Sultan Safi, Advocates & Additional Advocate General Date of hearing 21.04.2025 Date of announcement 13.05.2025 of judgment

JUDGMENT

Dn Khurchld lgbat. J.

l. This constitutional petition originated from proceedings of partition of certain agricultural land, initiated on an application under section 135 of the West Pakistan Land Revenue Act, 1967 ('Act 1967-). On 19.07.2010, Haji Ghulam Badshah (respondent # l) presented the application before the Revenue Officer in Takhtbai Tehsil of Mardan District. He claimed 11 lGnal, 16 Marla, as his share, out of the total 55 Kanal, 1l Marla in the land bearing Khasra # 604/ Khata # 146/252 per the record of rights for the year 2OO7-08. ln his application, other co-owners the respondent # I showed were Shahzada, Ghufranuddin (father of the present petitioners) and ll others as respondents # 1-13.

2.The seed of the present dispute was sown by the respondent # I when on the basis of an application dated 26.08.2010, he got deleted the name of Ghufranuddin/father of the petitioners, as respondent # 2, claiming no relief against him. ln his application, he stated that Ghufranuddin has passed away and his legal heirs, whose names he alleged to be not known to him, have shifted their residence to an unknown place. He further averred that Ghufranuddin has purchased 12 lGnal land which is in his possession .on which he raised no objection. He, ironically, further prayed that if some ghair mumkin [uncultivated, such as, graveyard, channel, etc.) land is kept out of the partition, then, the same area may be deducted from the share of Ghufranuddin (!). He also stated that his share was in possession of Shahzada (respondent # ,l). By his order dated 26.08.2010, the Revenue Officer accepted the application per the prayer of the respondent # I to the effect that all except respondent # I, namely, Shahzada, including most notably, father of the petitioners, w€re placed ex parte. The partition application ultimately succeeded.

Page I of13

d #,.,.1

\r./

Execution proceedings also concluded followed by an instrument of partition and attestation of partition mutation # 1132 on 18.03.2013.

3.On 08.05.2014, the petitioner-all legal heirs of Ghufranuddin-filed an application under section l2(2) of the Civil Procedure Code, 1908 ('CPC'). The respondent # I contested the application, mainly, on the plea that on the spot, the petitioners are co-owners of 12 lGnal in Khasra # 604/3 and that they are also possessing 02 Kanal in Khasra # 604/2 which has been carved out in his favour on the basis of the partition. He elaborated that the petitioners' aforesaid ownership of 12lGnal has been separated in Khasra # 604/3 according to naqsha bayand jeem of which they are in possession and that they have no concern with his ll Kanal, 16 Marla land given to him in Khasra # 604/2 and 604/4. Strangely enough, he also pleaded that the petitioners, being residents of Takhtbhai, had appeared before the Revenue Officer.

4.During the hearing of the application, the Revenue Officer appointed a commission who visited the spot and found that: firstly, the boundary line of Khasra # 601 and 604 could not be determined; secondly, the correct areas of Khasra # 604/l and 604/3, allegedly earmarked for the petitioners, could not be determined; thirdly, standing crop wat found in Khasra # 604/2. On 08.01 .2016, the Revenue Officer without even referring to the report of the commission, dismissed the application. On appeal, the Deputy Commissioner (order dated 27.01.2016) held that the petitioners' ownership and possession of 12 lGnal in Khasra # 604/3 should not be disturbed. The Additional Commissioner allowed revision (order dated 28.12.2017) and accepted the application under section 12(2) CPC, directing the Revenue Officer to prepare fresh naqshajaf in the presence of the parties. The Member Board of Revenue allowed the revision petition (order dated 10.09.2018) of the respondent # I by reversing the order of the Additional Commissioner.

5.The petitioner filed the instant constitutional petition against the order of the Member Board of Revenue which restored the earlier orders of the Deputy Commissioner and the Assistant Commissioner, reversing the Additional Commissioner's order in favour of the petitioners.

6.Learned counsel for the respondent # 1 raised a preliminary objection that the apptication under section 12(2) CPC is not competent because CPC is not applicable to proceedings under the Act. They relied on a judgment a learned single

I

bench of this court rendered in Mst Razia (Peshaw ar: 2014) in which it was ruled that section 12(2) CPC is not applicable to such proceedings.

7.Learned counsel for the petitioners submitted that having no other remedy under the Act, the petitioners invoked section 12(2) CPC. He maintained that the petitioners allege that the respondent # I committed fraud and misrepresentation for which the only remedy available is section 12(2) CPC.

1 Mst, Razia & others v. Hayat lJllah &, others, writ petition # 3952.

Page 2 of 13

8.On merits, learned counsel for the petitioners argued that the Revenue Officer demonstrably ignored that the commission did not submit his report owing to some specific reasons. He further argued that the name of the petitioners' predecessor was got deleted with mala fide and fraudulent intention so he was condemned unheard. Another key point he raised was that there are ghair mumkin portions, such as, a graveyard in the disputed land which was overlooked while finalizing the proceedings in favour of the respondent # l. This, he added, was in violation of section 136 of the Act 1957 that provides restrictions and limitations on partition.

9.Learned counsel for the respondent # 1, on other hand, argued that the partition proceedings have been concluded and culminated into a partition mutation, as such, they have become a past and closed transaction. They added that the petitioners' share has been kept intact for which they are at libefi to file a partition application. Objecting more vehemently, they submitted that the petitioners are still in possession of l8 Marla more than their due share. This court perused the record with the able assistance of learned counsel for parties.

10.The main point for determination is that whether the application under section 12Q) CPC in partition proceedings under the Act 1967 is applicable.

ll. ln Mst. Razi, refened to above, a learned single bench of this court has ruled that the CPC being not applicable to partition proceedings, an application under section 12(2) CPC is not maintainable. The learned bench observed that the appropriate remedy is review under section 163 of Act 1967. However, dismissal of such an application merely on the ground of it being filed under an incorrect legal provision may not be deemed sufficient to cure the underlying jurisdictional defect. Given the specific and nuanced facts of the present case, it appears to be all the more necessary to comprehensively discuss this legal position to appreciate its application to the controversy at hand.

12.ln order to fulty appreciate the legal position discussed above and to determine its applicabitity to the present case, it is necessary to first delineate the true scope and nature of the various functions performed by Revenue Officials when acting in the capacities of a "Revenue Officer," a "Revenue Court," and a "Civil Court." lt is equally important to draw a clear distinction between the jurisdiction exercised by a Revenue Officer under section 135 of the Act 1967, by a Revenue Court under section 141 of the Act 1967, and by a Civil Court under the same provision. ln this context, it becomes imperative to examine the iurisdictional boundaries prescribed by law between Revenue Officers and Revenue Courts, on the one hand, and Civil Courts, on the other. Furthermore, in order to properly comprehend the scope and application of section 12(2) of the CPC, it is essential to explore the legislative intent undertying the expressions "decree,- "order." and ..judgment,- and to consider whether these terms are broad enough to encompass an "instrument of partition" as envisaged under section 145 of the Act 1967.

13.The power to undertake partition proceedings is vested in the Revenue Officer under section 135 of the Act 1967, the verbatim text of which is reproduced below for ready reference:

Page 3 of 13

135.Application for partltion. Any joint owner of land may apply to a Revenue Officer for partition of his share in the landif-

(a)at the date of the application me share is recorded under Chapter Vl 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 acknowledgment of that right has been executed by all parsons interested in the admission or denial thereof.

14.As per the provisiont of the Act 1967, "Revenue Court meanr a Court constituted as such under the law relating to tenanqy ar in force for the time being"z, and "Revenue Officer means a Revenue Officer having authority under this Act to discharge the function of a Revenue Officer."3 To fully grasp this nuanced distinction, particularly how the office of the Revenue Officer, depending on the circumstances, may shift its jurisdictional character to that of a Revenue Court or even a Civil Court where disputed questions of title arise in the property sought to be partitioned, it is imperative to refer to the provisions of section 141 of the Act 1967, reproduced below:

l4l. Dlsposal of question as to tltle ln the prcperty to be dlvlded. (l) When there is a question as to title in any property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a court.

(2)Where the Revenue Officer does not himself proceed to determine the question of title as a Civil Court, for reasons to be recorded by him in this behalf, require a party specified by him to file a suit in a Civil Court, within such period not exceeding ninety days from the date of his order as he may fix, for obtaining decision regarding the question.

(3)On the filing of a civil suit by the party required so to do within the specified Period, the Revenue Officer shall suspend further action on the application for partition till the said civil suit is decided by the Court and a copy of the Court's order is produced before him.

(a)ln case the party so required fails to file a suit within the specified period, the E Revenue Officer may proceed with the partition and decide the question of title himself. (5) Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply, namely: -

(a)lf the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as a Revenue Court under the law for the time being in force.

(b)lf the question is one over which a civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to trial of an original suit by a Civil Court, and he shall record a judgment and a decree containing the particulars required by the [CPC], to be specified therein.

(c)An appeal shall lie from the decree of the Revenue Officer under clause (b) as though that decree were a decree of a Civil Judge in an original suit.

(d)Upon such an appeal being made, the District Court or the High Court, as the case may be, may issue an injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal.

(e)From the appellate decree of a District court uPon such an appeal, a further appeal shall lie to the High Court, if such further appeal is allowed by the law for the time being in force.

2 Section 4(22) of the West Pakistan Land Revenue Act' 1967 (Act 1967). 3 lbid. Section 4(23).

Page 4 of 13

15.A close analysis of the above provision reveals a hybrid jurisdictional regime, whereby a Revenue Officer may act either ar a Revenue Court or as a Civil Court depending on the nature of the dispute. lf the question of title falls within the domain of tenancy law, the Revenue Officer proceeds as a Revenue Court; however, if it pertains to matters ordinarily cognizable by Civil Courts, he assumes the powers of a Civil Court, applying the procedure prescribed under the CPC, including the recording of a formal judgment and decree. This threefold functions of the Revenue Officer has been aptly discussed by the learned Lahore High Court in Khair Din (Lahore: 1968)4, as below:

5t...] lt is important to note that in the course of partition proceedings a revenue officer may be called upon to perform threefold functions acting in three different capacities. Firstly, he acts as a revenue officer, when he has either to disallow the partition or adopt a certain mode of partition or decide other allied questions regarding the area to be excluded or included. Secondly, while deciding the question of title within the cognizance of civil Court, he has to act as a civil Court. Thirdly, while deciding question of title within the exclusive cognizance of revenue Courts, he has to act as a revenue Court. The three different categories of orders passed by a revenue officer are also distinguishable for the purposes of appeal, review or revision

16.ln the above-quoted passage, the distinction is drawn not only for determining the exercise of jurisdiction by the Revenue Officer on the original side in all three capacities, but it is equally significant for regulating the forums and procedures for appeal, review, or revision. Therefore, it can be safely concluded that the expression "Revenue Officer" as employed in section 135 of the Act 1967 is confined to partition proceedings conducted under that specific provision and cannot be construed to include the exercise of jurisdiction as a "Revenue Court" or a "Civil Court," unless a dispute as to title arises and the Revenue Officer expressly assumes such jurisdiction in accordance with law. Moreover, the Act 1967s provides different classes of Revenue Officers:

7.Classes of Revenue officen. fl) There shall be the following classes of Revenue Officers, namely: -

(a)the Board of Revenue;

(b)the [Commissioner;]

(c)the Collector;

[(cQ Assistant Commissioner;J

(d)the Assistant Collector of the first grade;

(e)the Assistant Collector of the second grade.

(2)The Deputy Commissioner of the District or the officer performing for the time being functions as such, shall be the Collector thereof.

t€) The Assistant Commissioner shall be the in charge of the SubDivision of the District.l

The Assistant Collector acts as the trial forum for various matters, including partition proceedings under section 135. An order of the Assistant Collector is appealable before the Collector. A Collector's order is revisable before Commissioner whose order is further revisable before the Board of Revenue.6 The Board of Revenue' 4 Khair Din v. (t) t. U. Khan C. S. P. Member (Revenue) Board of Revenue, V1est Pakistan and (2) Wali Mohammad(PLD 1968 Lahore ll).

5 Section 7, Act 1967.

6lbid. Section 154.

Page 5 of 13

being the apex body in the revenue hierarchy under section 5 of the Board ot Revenue Act, 1957,atso possesses suo motu powers to call for and revise the record of proceedings at any time.7 An Assistant Collector, Collector, or Commissioner may, on their own motion or upon an application, review an order they or predecessor-in-office have passed.s A party aggrieved may seek review on specific grounds, such as, the discovery of new and important evidence which, despite the exercise of due diligence, war not available at the time of the original proceedings, or on account of a mistake apparent on the face of the record, or for any other sufficient reason.

17.lt is to be observed that the appellate, revisional, and review mechanisms provided under the Act 1967, are confined to matters expressly falling within the domain of Revenue Officers. These statutory remedies are designed to ensure correction of errors within the internal framework of the revenue hierarchy and pertain solely to the exercise of powers conferred upon such officers under the Act. The appellate structure, beginning with an appeal under section 161, followed by revision and review under sections 164 and 163 respectively, is intended to regulate the adjudication of revenue matters strictly so classified by law. However, it must be clarified that these remedies do not, either directly or by necessary implication, extend to disputes involving questions of title to immovable property. Such matters, by their very nature, lie within the exclusive jurisdiction of the ordinary civil courts. ln this regard, section l4l assumes significance, as it stipulates that where a Revenue Officer acts in a capacity analogous to that of a civil court for the purpose of determining title, the procedural and jurisdictional framework of the civil courts would be attracted, thereby excluding the applicability of the revenue aPPellate and revisional forums. Accordingly, it must be understood that the remedial hierarchy provided under the Act operates within its prescribed limits and ceases to apply where the nature of the dispute transcends the revenue domain and falls within the realm of civil litigation.

lB. Turning to the concept of the "Revenue Court" under Act 1967,it is pertinent to note that the term itself is not defined for the general PurPotes of the Act. However, the expressions "Revenue Court" and "Revenue Officers" are used interchangeably in the Act 1957.lt may be emphasized that section 4(22) provides a definition of the Revenue Court exclusively for matters relating to tenanry' and not beyond that limited context. ln this regard, section 49 of the Khyber pakhtunkhwa Tenanry Act, l95O ('Act of l95O) is worth consideration, which provides for Revenue Courts and suits cognizable by them. Under the said section, a Revenue Officer assumes the status of a Revenue Court when exercising jurisdiction in respect of certain specified suits, as set out in subsection (3)' or in appeals or proceedings arising therefrom. ln such circumstances, the Revenue Officer jurisdiction acts in a judicial capatity, distinct from his administrative functions. The of Revenue Courts extends to matters primarily concerning landlord-tenant disputes, fixation, commutation, or recovery of rent, ejectment and possession,

village expenses, profits of estates, emoluments of village officers, and sums first recoverable as arrears of land revenue, or rights relating to land and water. The 7 lbid. Section 5.

8 lbid. Section 163.

Page 5 of 13

proviso to sub-section 3 places bar on the jurisdiction of civil court in respect of disputes falling within the exclusive domain of the Revenue Court. However, where a suit instituted before a civil court involves a matter exclusively triable by a Revenue Court, the civil court is mandated to return the plaint under Order Vll Rule 1l CPC for presentation to the appropriate Revenue Officer. Conversely, where the dispute pertains to matters of title or otherwise lies outside the specific categories enumerated under section 49(3), the jurisdiction reverts to the ordinary civil courts.

19.The remedial structure against orders or decrees of Revenue Courts and Revenue Officer under the Act of 1950, is provided in sections 52 to 55. Section 52 provides that appeals lie to the Collector when the order or decree is made by an Assistant Collector of any grade, or to the Commissioner when the order or decree is made by Collector, subject to the bar against a second appeal where an order or decree is confirmed. Section 54 empowers Revenue Officers to review their own orders under specified conditions, while section 56 vests supervisory and revisional jurisdiction in the Board of Revenue and the Commissioner, enabling them to call for and revise proceedings akin to the revisional powers of the High Court. lt should, however, be noted that the jurisdiction of Revenue Court is limited to the matters specified in section 49 of the Act of 1950 or when it assumes jurisdiction under section 172 of the Act 1967.|n no case, the Revenue Court can transcend the jurisdiction of civil courts when a dispute involves questions of titles or some other factual controversy. The Revenue Court cannot determine complicated questions of law and disputed questions of facts. The jurisdiction of the Revenue Court and the Revenue Officer is administrative in nature as they conduct proceedings summarily; reliance placed on Sardar Muhammad (SC:2O2'l):e

6.We have heard the learned counsel for the respective parties and have minutely perused the record. The primary question which requires our attention is as to whether the DDO (R) had the power to strike off a sale mutation carried out in a jalsa-e-aam in the presence of witnesses on the ground that such sale was procured through misrepresentation and fraud and if the answer is in the negative, whether the subsequent sale deed in the pecutiar circumstances of this case would fall to the ground. tt has been repeatedly held, and the law itself provides that the proceedings before the Revenue Officer or before the Revenue Courts are summary in nature and' therefore, complicated questions of law and disputed question of fact are not to be adjudicated in ihe hierarchy. The determination of complicated questions of law and diiputed questions of fact fall within the sole domain of the civil Court' The plea of the respondents that the mutation entry No. 4855 was procured through fraud, in our opinion, could not have been decided in proceedings which are summary in nature as such controversy requires adjudication by allowing the parties to adduce evidence in support of their respective claims. There is no doubt in our minds that the DDO (R) tiansgressed his limits by declaring mutation No. 4855 as having been obtained through fraud and misrepresentation.

l. The provisions of section 172 of the West Pakistan Land Revenue Act' 1967 allocate certain matters to the sole competence of the Revenue authorities, to the exclusion of civil courts. However, it must be noted that sectionlT2 only emPowers Revenue authorities to exercise administrative powers; the raison d'etre for the same is that the proceedings conducted by a Revenue Officer or a Revenue Court are summary in nature; tfiey possess a limited scoPe of enquiry and do not possess the characteristics of a civii iuit that necessitates framing of the issues or recording evidence of the parties, as such matters fall within the sole domain of the civil courts.

(2O21SCMR

9 Sardar Muhammad and others v. lmam Bakhsh (Deceased) through LRs and others 3er).

Page 7 of 13

\F./

Besides, section 172(2)(xvi) of the Act,1967 leaves the adjudication of plea of fraud to the competence of the civil courts [...].

20.On the other hand, section 172 of the Act 1967 excludes the jurisdiction of Civil Courts in matters entrusted to Revenue Officers or Revenue Courts, including questions relating to limits of land defined under the Act, correction of entries in record-of-rights [...].to Civil Courts are barred from questioning the validity of notifications regarding reassessment, rate of assessment, or the framing of records under the Act, and cannot entertain claims to village offices, exemption from revenue, or set aside revenue sales except on grounds of fraud. Similarly, clauses (xvi) and (xviii) of section 172 qualify the ouster of the jurisdiction of the Revenue Officer and Revenue Court by adding the phrases: "not being a question as to title in any of the property of which partition is sought" and "on any ground other than fraud."

27.The foregoing scheme of law crystallizes several key propositions: First, the expressions "Revenue Officer" and "Revenue Court" mutt be understood within the limited context of matters concerning partition of joint estates, correction of entries in the record of rights, register of mutations, or landlord-tenant disputes under tenancy laws, excluding questions of title. Second, whenever a complex question of law or fact, or allegations of fraud arise in proceedings before a Revenue Officer or Revenue Court, their jurisdiction ceases, and the matter must be adjudicated by the ordinary civil courts. Third, under section 141 of the Act 1967, a Revenue Officer may assume the jurisdiction of a Revenue Court or even that of a Civil Court, but only where expressly authorized by law and subject to strict compliance with the conditions therein. Fourth, the remedial structure provided under the Acts 1967 and 1950 through appeals, revisions, and reviews remains confined to matters within the exclusive jurisdiction of Revenue Officers or Revenue Courts and does not extend to civil disputes involving title. Finally, the jurisdiction of Revenue Officers and Revenue Courts, being summary and administrative in nature, cannot be equated with the plenary, adjudicatory jurisdiction of Civil Courts, which alone are competent to resolve disputed and complicated questions of title or fraud after recording proper evidence.

22.Turning to the issue of the jurisdiction of Civil Courts and its distinctive nature under the law, it is important to note that Civil Courts are established under the West Pakistan Civil Courts Ordinance, 1962 ("Ordinan@ of 1962'). Section 9 of the CPC defines the jurisdictional scope of Civil Courts in a comPrehensive manner, except in cases where the cognizance of a suit is either expressly or impliedly barred by any other law. ln this context, it must be emphasized that Civil Courts, as Per section 9 of the CPC, are the courts of ultimate jurisdiction for all civil matters, unless their cognizance is explicitly or implicitly excluded. The ouster of the jurisdiction of Civil Courts, which are endowed with plenary and ultimate authority over civil disputes, should not be inferred lightly, nor should the lack of jurisdiction lO And others, such as, "periodical records or register of mutations, framing or revision of record- of-rights, arsessment or reassessment of land revenue, collection and recovery of land revenue or surire.overable as arrears, formation or determination of boundaries of estates, partition of estates or holdings, redistribution of land or land revenue, altotment on partition, liability for payment of cess, rates or charges, and fixation or dispute of boundary markt."

Page I of 13

be assumed automatically. There must be either an express provision in a law or a statute that specifically exclude the Civil Court of its jurisdiction, and such a provision should be strictly construed to leave no room for doubt. Alternatively, if the ouster is based on implication, the implied jurisdictional exclusion must be firmly established on the principle that the forum or tribunal created by the special law is conferred with exclusive jurisdiction over the matter of a specific civil nature.rr ln this context, section 153 of the Act 1967 serves as an example of implied ouster, whereas section s 49 of the Act of 1950 and 172 of the Act are examples of express ouster.

23.Moreover, as noted earlier that the functions of Revenue Officer and revenue Court are administrative and summary in nature and have a limited scope of inquiry under the Acts 1967 and 1950, hence, by no stretch of imagination, the proceedings before such forums can be equated with the proceedings of Civil Courts.t2 On the other hand, the proceedings before a Civil Court are conducted under CPC. The only provision in the CPC which extends the provisions of CPC to the Revenue Courts is section 5:

5.Appllcatlon of the Code to Reuenue Courts. (l) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the Provincial Government may, by notification in the official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not aPply to those Courts, or shall only apply to them with such modifications as the Provincial Government may pretcribe.

(2)'Revenue Court'in subsection (l) means a Court having jurisdiction under any local taw to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or Proceedings as being suits or proceedings of a civil nature.

24.The provision clearly states that a "Revenue Court" has jurisdiction only over cases related to the rent, revenue, or profits of agricultural land under the Act of 1950. lt specifically excludes Civil Courts that have original jurisdiction over such matters, which are considered civil suits. This highlights the limited scoPe of a Revenue Court's authority, which is confined to agricultural land and revenue issues. On the other hand, Civil Courts have broader jurisdiction and retain absolute authority over matters of land title or allegations of fraud within the meaning of section 53 and clause (xvi) and (xviii) of the Act 1967. This means that Civil Courts can review and, if necessary, overturn the decisions of Revenue Courts, esPecially when it comes to issues of land title or civil rights. ln this way, Civil Courts have a wider jurisdiction compared to the more specialized role of Revenue Courts. Thus, for all practical purposes, the proceedings by the revenue authorities cannot be called as proceedings by "the Court", as this court held in Azad Khan (2019).t3

25.Coming to the question that what does the terms "decree", "order" and ..judgment" means for the purpose of sectio n l2(2) CPC and whether the phrase "instrument of partition" can be given the same meaning respectively assigned to lt Hakam v. Tassadaq Hussain shah (PLD 2OO7 251 Lahore).

12 Surrayia Bano v. Nazia Bano (cLc 1996 Lahore 1690).

13 Azad Khan and another v. Senior Member Board of Revenue Khyber Pakhtunkhwa, Peshawar and 3 others (PLD 2Ol9 Peshawar 208).

Page 9 of 13

v .' .r"i.?ii:lFf ,rffi;

decree, order and judgment. The t'6rin decree under section 2(2) of CPC means "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final." Similarly, or order by virtue of section 2(14) means "the formal expression of any decision of a Civil Court which is not a decree." While judgment in terms of section 2(9) CPC means "the statement given by the Judge on the grounds of a decree or order." The term "Judge" as contained in the definition of judgment is defined in section 2(8) which means "the presiding officer of a Civil Court." There is no significant distinction between these legal phraseologies; rather, they are corollaries of one another, following in a natural and consequential order. lnstead, the CPC defines these phraseologies within a specific theoretical and legal framework, as reflected in the preamble to the CPC i " to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature." The subtle yet technically significant distinction between these phraseologies has been drawn by the learned Lahore High Court lshrat Malik (Lahore: 2O17yr+ The joint analysis of both the above noted provisions clearly indicates that a decree is the format expression of an adjudication by the court by virtue of which it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit which may either be a preliminary decree or final decree whereas order contemplates the formal expression of any decision of a Civil Court which does not qualify to be a decree. lt is well recognized principle of law that decree always follows a judgment and the judgment is the statement given by the judge of the grounds of a decree or order.

26.The terminology of decree, order, and judgment under the CPC is intended exclusively for decisions rendered by civil courts exercising jurisdiction thereunder. Each term signifies a distinct but interconnected stage in the civil adjudicatory process: a judgment is the formal articulation of reasons by the presiding judge; a decree is the formal embodiment of the conclusive determination of rights; and an order represents the formal expression of any decision not amounting to a decree. These definitions operate within a coherent procedural framework applicable solely to civil courts, and their usage is confined to proceedings properly falling within the jurisdiction conferred by the CPC. This interpretive aPProach assumes particular significance when examining section 12(2) of the CPC, which provides as follows:

12.Bar to further suit. - plea

(2)Where a perron challenges the validity of a judgment, decree or order on the of fraud, .is-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not bY a seParate suit.

judgment' ZZ. ln the above terms, where a party challenges the validity of ajurisdiction, decree, or order on grounds of fraud, misrepresentation, or want of the remedy lies not in instituting a separate suit, but by moving an application The careful before the court that passed the impugned judgment, decree, or order. wording of this provision underscores that the judgment, decree, or order referred to therein are those rendered by a civil court exercising jurisdiction under the CPC' It excludes decisions or instruments issued by administrative, quasi-judicial, or other

(2017 YLR 1788

14 Mrs. lshrat Malik through Special Attorney v. Jamil Ahmad Mani and another Lahore).

Page l0 of 13

non-civil fora. Moreover, the connection between the definitional sections of the CPC, and the remedial scheme under its section 12(2) further strengthens the proposition that challenges based on fraud or jurisdictional defects must be directed against adjudications properly so termed within civil proceedings. Thus, the scope of section 12(2) is inherently limited to civil court judgments, decrees, and orders, and cannot be invoked in relation to instruments, transactions, or proceedings falling outside the domain of civil court jurisdiction, unless expressly provided otherwise by law.

28.This interpretation is further supported when considered in the context of clause (xviii) of section 172 of the Act 1967, wherein the phrase "on any Sround other than fraud" is employed. This language indicates that revenue officers or revenue courts are precluded from exercising jurisdiction where allegations of fraud are raised. ln contrast, section 12(2) CPC is specificallytailored to address challenges on the grounds of fraud, misrepresentation, and want of jurisdiction, but only in relation to judgments, decrees, and orders of civil courts. AccordinSly, the jurisdictional bar in revenue matters upon allegations of fraud further reinforces that where fraud is alleged, the matter must be dealt with by the civil court under the procedural framework of section l2(2) CPC.

29.Now turning to the point of the instrument of partition, it is pertinent to examine its legat character within the framework of the Act 1967. While earlier findings has established that decree, order, and judgment under the CPC are terms exclusively referable to the adjudicatory acts of civil courts, it becomes necessary to consider whether an "instrument of partition" prepared by a Revenue Officer can be treated on the same footing. ln this regard, sections 145 and 146 of the Act 1967 provide as follows:

145.tnstrument of partltion. When a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein.

146.Affirmatlon of possesslon of property allotted on partitlon. An owner to whom any land is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives, and a Revinue Officer shall, on application made to him for the purpose by any such owner at any time within three years from the date recorded in the instrument of partition under section 145, give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property.

30.A careful analysis of section 146 reveals that although a Revenue Officer is empowered to give effect to an instrument of partition " as if it were a decree for immovable property," the language employed is of interpretive significance. The phrase " as if it were a decred' introduces a legal fiction solely for the limited PurPose of execution. lt does not elevate the instrument to the status of a decree within the meaning of the CPC, nor does it bestow upon it the substantive or procedural attributes of a civil court adjudication. lt is a settled principle of statutory interpretation that legal fictions must be narrowly construed and cannot be extended beyond the express object for which they are created. The Latin maxim fiaio tegis est ubi veritas (a legal fiction exists where truth is absent) aptly captures this principle. The fiction under section '146 is functional in nature and intended only to facilitate execution proceedings. lt cannot be stretched to permit the invocation Page ll of 13

of a remedy under section 12(2) that is explicitly confined to iudgments, decrees, and orders passed by civil courts under the CPC. Accordingly, an instrument of partition, even when enforceable as if it were a decree, remains distinct in character and does not fall within the ambit of section 12(2) CPC.

31.The concept of legal fiction has been extensively discussed by the Supreme Court of lndia.r5 ln Karnataka (SC:2017)",with reference to many authorities, it was observed that the court has to explore the purpose for which the fiction is created. lt has to consider the facts and the accompanying outcomes related to the giving of effect to the fiction. A fiction is not to be stretched beyond its PurPose; not even beyond the statutory provision making it, nor could it be used as a tool to introduce another one. A fiction requires to be narrowly interpreted. ln Aneeta Hada (SC: 2Ol21,r,it was discussed that a section of law providing that an award (decision) passed by a Lok Adalat "shall be deemed to be a decree of a civil court" is a legal fiction.rs The court ruled that such an award by its nature an outcome of a non-adjudicatory process, the purpose of arraying it as a decree is to ensure its enforceability. ln New Okhata (5C: 2O22)1e, a relatively recent one, it was reiterated:

36.When a legal fiction is employed by the legislature, it becomes a duty of the Court to interpret it ind to give it meaning. ln gleaning its meaning, the Court is duty bound to ascertain the purpose of this legislative device. The Court cannot allow its mind to be boggled undoubtedly [...] in the matter of carrying the legal fiction to its logical end. Brit this is not the same as holding that the Court will not look to the object of the Act and, in particular, the fiction in question.

32.Thus, in view of the above, the instrument of partition cannot be termed as a decree in the true legal sense. Although Section146 of the Act 1967 employs the expression "as if it were a decree," this phrase introduces a limited legal fiction intended solely to facilitate execution proceedings. lt does not transform the instrument into a decree as defined under the CPC, nor does it confer uPon it the judgment or decree.

adjudicatory authority or finality associated with a civil court's such an instrument as a decree for all legal intents and purPoses, such as, To treat invoking Section l2(2) CPC would amount to extending the fiction beyond its

express iegislative purpose, contrary to settled principles of statutory interpretation'

33.Having settled the above legal position, this Court now turns to the merits or of the present case. lt is trite law that courts may judicially review administrative executive actions on well-established grounds, including lack of jurisdiction' improper or mala fide exercise of jurisdiction, violation of the principles of natural justice, particularly the denial of the right to be heard, or where the action is judicial arbitrary, unreasonable, unfair or in violation of law.2o Furthermore, in review, the order of the authority under scrutiny must satisfy certain essential requirements: it must not suffer from a jurisdictional or procedural defect, it must

15 Maruti udyog Ltd. vs. Ram Lat and @rr (AlR 2OO5 SC 851).

16 State of Karnitaka v. State of Tamit Nadu and Ors.,

(2017) 3 SCC 362'

ll Aneeta Hada v. GodfatherTravels and Tours, (2012) 5 scc 661: (2012) 3 Scc (Civ) 35oz (2012) 3 SCC (Cri.) 241.

lg See the lndian Statute: The Legal Services Authorities Act, 1987,Section 21. 19 New Okhta tndustriat Devetoiment Authority v. Yunus and Ors. (AlR 2022 SC 847) (PLD 2o2? 5C ll); Naseem 20 Federal 1overnment Employees Housing Authority v. Ednan Syed Khyber Pakhtunkhwa, Khan v. The Government of Khyber Pakhlunkhwa through Chief Secretary Peshawar (2024 SCMR 1341).

Page 12 of 13

t

v

ensure a fair hearing, and it must be free from any adjudicatory flaw. lf the order fails to meet even one of these criteria, the entire proceedings and the resulting decision cannot stand and would be subject to judicial review. For any order or action to pass the test of judicial review, it must first be established that the authority had the jurisdiction to act. Once jurisdiction is confirmed, the next test is whether that jurisdiction was exercised in accordance with the law. The authority must also pass the test of affording a fair hearing, in compliance with the principles of natural justice. Lastly, the decision must pass the test of being free from any adjudicatory defect, meaning it should be based on sound reasoning, supported by evidence, and not arbitrary or biased.

34.ln the present case, the proceedings conducted by the Revenue Officer under Section 135 of the Act 1967, as well as the subsequent decisions by the appellate revenue authorities, fail to meet the essential tests for judicial scrutiny as delineated above. Firstly, the very assumption of jurisdiction by the revenue authorities over an application filed under Section 12(2) CPC, a provision not applicable to proceedings under the Act 1967, was legally misconceived and amounted to a jurisdictional error. Secondly, the deletion of the name of the petitioners' predecessor, Ghufranuddin, without notice or affording his legal heirs an opportunity to be heard, was a blatant violation of the principles of natural justice. The record indicates that the Revenue Officer proceeded ex parte and finalized partition proceedings in favour of respondent No. I without ensuring proper notice or representation of the petitioners, thereby undermining the fairness and legality of the proceedings. Thirdly, despite the appointment of a commission, the report identifying significant factual disputes, such o5, undetermined boundaries and presence of ghair mumkin land was not even considered in the final adjudication. This reflects a serious adjudicatory flaw, as the decision was rendered without appraising material evidence. These deficiencies, jurisdictional misapplication, procedural unfairness, and flawed adjudication, collectively render the impugned orders liable to be set aside under judicial review.

35.Resultantly, the petition is allowed and the impugned order is set aside with the direction to conduct proceedings in accordance with law while affording opportunity to the petitioner.

J

SBz Justice Dr. Khurshid lqbal

Page 13 of 13