Muhammad Ashiq Khan Vs Muhammad Daud

a

Judgment Sheet

PESHAWAR HIGH URT. PESHAI[IAR

[Judicial Department]

Writ Petition 575-P/2020.

For petitioners: - (Muhammad Ashiq Khan & another) Mr. Asif Ali ShaL Advocate

For respondent: - (Muhammad Daud & others) Mr. Shehzad Gul Khattak. Advocate.

Datc of hearing: - 27.o,5.2o/24.

JUDGMENT

*?hk**

S. M. ATTIOUE SHAH. J.-Petitioners , through instant petition, have challenged the judgment and; decree of the learned Appeal Court dated 13.11.2019, whereby, their appeal against the judgment and decree of the learned trial court dated 16.O2.2O19 has been partially allowed.

2.Brief facts of the case are that the petitioners fited a suit for declaration and; permanent injunction against the respondents before the learned trial court by alleging therein that they are owners of their inherited property measuring 15 marlas in Khasra No.2837 1596 & 12Og situated at Mouza Jallozai per Fard Jamma Bandi for thc year 1982-89 coupled with Fard Badar No.03, dated 1g.o2.2o12, however, they have been illegally and; forcibly dispossessed by the respondents from the same. They also sought possession, if not proved the same, as consequential

relief. The learned trial court, after framing the required issues, recording pro and contra evidence and; hearing learned counsel for the parties, dismissed the suit with cost of Rs.3O,OOO/- vide judgment and decree dated 16.02.2019.

Being aggrieved therefrom, the petitioners filed appeal, which was partially allowed by the learned Appeal Court through the impugned judgment and decree dated 13.1 1 .2019. Hence, the instant writ petition.

3.Heard. Record perused.

4.Record reflects that the suit Khasra

No.2837 1596 is Shamailat-e-Deh of mouza Jallozai, consisting upon three Kandijat known as Kandi Khumarikhel, Kandi Tagikhel and Kandi Agarkhel per .Jamma Bandi for the year 1982-83 (Ex.PW- L l2l, which fact has also been admitted by the parties when examined before the learned trial court. Record further reflects that the said Shahmilat-e-Deh has not as yet been officially partitioned, as such, the same is common proprietorship of the entire propriety body of the aforesaid Kandis. The impugned findings of the learned Appeal court reflect that while dismissing the appeal of the petitioners it reversed thc findings of the learned trial against issues No.10 & 11 by declaring them as Hisadar owners to the extent of 15 marlas on the strength of Ex.PW-L12, whereas rest of the findings of the learned trial court were maintained on the grounds that no declaratory decree can be passed in favour

of the petitioners in respect of the suit property being Shamilat-e-Deh because the Civil Court has no jurisdiction in such like matters; besides, petitioners have also not impleaded the entire proprietary body in the suit.

5 The primary questions for determination before this court are (il whether the Civil Court has the jurisdiction to entertain a suit for declaration etc. in respect of "shamilat" land or otherwise and (ii) whether a suit can be dismissed for want of impleadment of necessary and;

proper parties. It is worth mentioning that earlier the ibid questions came up for hearing before this court in the case titled Fagoz and others V. Muhqmm.ad Haneef (Civit Revision No.7OO-P l2o22l which were elaborately discussed in judgment dated 29.04.2024 rendered therein.

The operative part of the said judgment is reproduced below for ready reference: -

't'irst, this Court would dilate upon the question of maintainability of suit for declaration etc. fiIed in terms of section 42 of the Specific Relief Act, 1877 , which postulates that: "Any person entitled to ang legal characte4 or to right as to anA propertg, mag institute a suit against anA person denying, or interested to deny, his title to such character or right, and tlrc Court may in its discretion make therein a d"eclaration that he is so entitled, and the plaintiff need not in such suit ask for ang further relief: Prouid.ed that no Court shatt make anA such declaration where the plaintffi being able to seek further relief than a mere declaration of title, omits to do so."

The ibid provision of law is composed of two essential ingredients, the first ingredient is title of the plaintiff to legal character or property. The second ingredient is that there must be an infringement or threatened invasion of title to such legal character or property of the plaintiff. The purpose of the ibid provision is to confer the Civil Court with jurisdiction to prevent future litigation and to remove existing sources of controversy which have threatened the plaintiffs right to legal character or property. It is long settled that a co- sharer in exclusive possession of a certain portion of joint land can retain possession of the same to the extent of his shares, so long as there is no official partition between the co-sharers by metes and; bounds. Muhammad Muzaffar Khan a. Muhammad Yousuf Khant & Rabnouaz and others a. Akbar Ali qnd othersz. Subsequently, the said principle was a-lso applied in the matters pertaining to "Shamilat DaLt' in the case of Attq Muhammad. a. Saln:lbzada Manzoor Ahmad and others3. Hence, it is settled that a suit filed by a co- owner under the provisions of section 42 read with section 54 of the Specific Relief Act, L877 is maintainable, who is in possession of a piece of Shamilat land, which has not yet been partitioned and; there is a denial to his tifle and threat to his possession by the other members of the propriety body.

Similarly, plea of the petitioners qua non- impleadment of propriety body of the village also carries little weight, given the fact that the plaint cannot be rejected for want of impleadment of entire proprietary body of the village because the necessarJr and; proper party can be impleaded by the Court, at any stage, of the proceedings in order to pass an effective decree in terms of the

IPLD 7959 SC 9

21989 SCMR93

31992 SCMR 138

provisions of Order-l Rule 10 CPC. It is well settled that no suit shall be defeated on account of mis- joinder or non-joinder of the necessary parties, rather, the Courts are mandated to adjudicate upon the matter in dispute, taking into account the specific facts and circumstances of the case, as well as the rights and interests of the parties directly involved therein, as postulated by Order-1 Rule 9 of

CPC.

6.So far as the question of jurisdiction of the Civil Courts or for that matter the Revenue Courts established under the provisions of Land Revenue Act, 1967 in the matter of Shamilat lands is concerned. Suffice it to say that the jurisdiction of the ibid fora depends upon the nature of the property. The ibid question has also been exhaustively discussed by this court in Sher .ffasscn's ca,se /Cfvil Revision lVo. 552-P/2O2O) decided on 22.04.2024. The relevant portion is reproduced below for sake of convenience: -

"As both the parties have vigorously contested the question of jurisdiction of the Revenue Courts, established under the provisions of Land Revenue Act, L967 uiz the Civil Courts, established under the Civil Courts Ordinance, 1962 read with Order 2O Rule 18 CPC while advancing tJreir respective submissions at the bar, particularly keeping in view the very nature and; characteristics of the property under dispute for the purpose of its partition. Therefore, it is imperative to discuss the jurisdiction of both the fora qua partition of the disputed property as per its nature and; characteristics per available record of the case. It is worth mentioning that the provisions of Land Revenue Act, 1967 apply to the lands where the

settlement had been taken place except those that have been specially excluded from the operation of the ibid Act. Section 3 of the Act provides for exclusion of certain lands from the operation of the ibid Act, which is occupied as the site of a town or village which is not assessed to land revenue. For the sake of convenience, the same is reproduced below:-

S.3. Exclusion of certain land from operation of this Act. -(i / Except so far as maA be necessary for the record, recouery and administration of uillage-cess, or for purposes of surueg, nothing in this Act applies to land uthich is ocanpied as the site of a town or uillage, and is nof cssessed to land- reuenue.

(2)It shall be lauful for the Collector acting under the general or special orders of the Board of Reuertue, to determine, for the purposes of this Act, what lands are included uithin the site of a toutn or uillage, and to fix and from time to time to uary the limits of the samq regard being had to all the subsisting ight of the land-owners.

The ibid provision has explicitly excluded the applicability of the provisions of the Act, 1967 to the lands which are occupied, as the site of a town or village and is not assessed to land revenue, meaning thereby that the land which does not form part of a town or village and also assessed to land revenue, then under such circumstances the provisions of Act, 1967 shall be applicable thereto. It is worth noting that the phrase "Larrd" has not been specifically defined by the Land Revenue Act, 1967, rather, the same has been defined under tfre Khyber Pakhtunkhwa Tenancy Act, 195O that land which is not occupied as the site of any building in a town or village and; is occupied or has been let for agricultural purposes or for purpose subservient to agricultural or for pasture; and includes the sites

of buildings and other structures on such lands. It has also been defined by the Civil Courts Ordinance, L962 in the manner that "Land" means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agriculture purposes or for purposes subservient to agriculture or for pasture and includes the sites of buildings and other structures on such lands. The said term has also been defined by the Land Reforms Regulation, 1972, which means that land used for agricultural or ancillary purposes and; assessed for land revenue would be covered under the provisions of Act, L967. The aforesaid definitions clearly stipulate the following characteristics of land for the attraction and; applicability of the provisions of the Act, 1967 .

(t)It must not be occupied as a site of ang building in a town or uillage.

(ii)It must be used for agiculfitral purposes or for purposes subseruient to agiculfitre or for pashtre, and includes the sites of buildings and other structures on such lands.

(iit) It must be assessed to land reuenue under the provisions of Act, 1 9 67.

When the aforementioned characteristics exist in a land, it would be amenable to the provisions of the Act, 1967 for the purposes of its partition, otherwise, the same would fall within the jurisdiction of Civil Courts of the competent jurisdiction.

The question of the jurisdiction of the Revenue Courts established under the Land Revenue Act, 1967 Viz the Civil Courts of plenary jurisdiction in the matters of partition of land came up for hearing before the superior courts from time to time. In the

V

case of Ghulam Rasoolt, it has been held: that there is no denial of the fact that the mere inclusion of a certain area in the municipal limits for the purposes of administrative convenience does not ipso facto make it the site of a town or village and exclude it from the purview of the Act. The said question also remained under discussion before the august Apex in case of KMuh.ammad Afi.f , wherein, it has been held: that the phrase Land has a special, and restricted character i.e. when it is used for agricultural purposes or purposes subservient to agricultural and; assessed to land revenue, then provisions of Act, 1967 shall be applicable thereto for purpose of its partition. However, when land is comprised of buildings with structures of a permanent character constructed thereupon, and is not used for agricultural purposes or purposes subservient thereto, then irrespective of its being assessed for land revenue, the Revenue Officer would have no jurisdiction to initiate partition proceeding of the said land as it has lost core characteristics of agricultural land, rather, partition of such land would fall within the domain of the Civil Court of competent jurisdiction. The ibid proposition has also been discussed by the august Apex Court in Human Rlghts' casea in the terms that: mere inclusion of a certain area for purposes of jurisdiction within the limits of a Municipal Committee it could not be presumed that it has become the site of a town or village within the meaning of Section 3 of the Act of 1967. However, 'land' falling within the site of a town or village, if it is not assessed to land revenue, then it stands excluded from operation of the Act of L967 in terms of Section 3 thereof. Likewise, Revenue Officer does not have any ochulo^ RasoolV. tkrom lllloh (PLD 7965 Lohore429) s Muhommad Arif & otherc Vs, Nowob &others (7gg7 SCMR 7792) 'Hu-o, Right cclse No.6g22g-P of 2078

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jurisdiction to entertain an application for partition of the property which has ceased to be land, notwithstanding the fact it continues to be assessed to land revenue.

From the above discussion, it has become crystal clear that it is the nature and; characteristics of a land which is the determining feature for the purpose of jurisdiction of the forum when the question of its partition arises. Therefore, construction over a small portion of a land which is otherwise used for the purpose of agricultural or subservient purposes would not trigger its exemption from the provisions of Act, 1967.Simi1ar1y, construction of a house on a small portion of a field, which is subject to land revenue and; is used for agricultural purposes or for the purposes ancillary thereto, cannot exclude the sarne from the jurisdiction of Revenue Courts for the purpose of partition.

7.Record of the case reflects that the disputed property is recorded as Ghair Mumkin Abadi in the revenue record, which fact has also been admitted by Patwari Halqa when he was examined as PW-1 before the learned trial court. Therefore, in the given circumstances, the worthy Revenue Courts established under the provisions of Land Revenue Act, L967 have no jurisdiction to entertain the suit in hand, as the jurisdiction of Revenue Courts is only confined to the lands which are used for agricultural or ancillary purposes and; assessed for land revenue, which is certainly not the case here.

8.So far as contention of the respondents qua maintainability of the present suit before civil court being

arising out from the matters of shamitatrand is concerned.

suffice it to say that it is the nature of the property which decides the jurisdiction of the forum, as discussed in the preceding paras. The property in dispute nonetheless is shamilat land, however, it is comprised of Ghair Mumkin Abadi, therefore, the same is excruded from the operation of the Act, 1967 in terms of the provision of section 3 of the Act and as such the same falls within the jurisdiction of civil court. Albeit, for maintaining suit for declaration in the matters of shamitat-i-Deh filed under the provision of section 42 of the specific Relief Act, lgzz the entire propriety body of the village is required to be impleaded being necessary and; proper party, as no effective decree can be passed without their impleadment in the suit. g. Given the discussion above, instant writ petition is allowed, impugned findings of both the learned courts below are set aside and in turn, the matter is remitted to the learned trial court with the direction to allow the petitioners to file an apprication for impleadment of the entire propriety body of the ibid three Kandis being necessary and; proper parties in the array of defendants in the suit and; thereafter, decide the lis afresh in accordance with law expeditiously being an old matter of the year 2or4.

Parties are directed to appear before the learned trial court, as and; when summoned in the matter.

ed:

Dated: 27.O5.2O24.

Abdul Gtaffar (sB)

JUDGE

Hon'ble Mr. S. M. Attirye Slwh, J.

"tusfice