IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Revision Application No. S – 88 of 2002
[Syed Shahan Shah v. Syed Amanullah Shah & others]
Applicants : Syed Shahan Shah through his legal
heirs, through Mr. Kalander Bakhsh
M. Phulpoto, Advocate.
Respondents 1 to 14 : Nemo.
Respondents 15 to 18 : Mukhtiarkar (Revenue) Taluka Kandiaro and others through
Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.
Date of hearing : 31-08-2020
Date of order : 05-10-2020
O R D E R
Adnan Iqbal Chaudhry J. – F.C. Suit No. 39/1996 filed by the Applicant (Plaintiff) for specific performance of an agreement was decreed by the learned Senior Civil Judge, Kandiaro, by judgment and decree dated 17.01.2002 and 21.01.2002 respectively. However, on Civil Appeal No. 5/2002 filed by the Respondents 1 to 14 (Defendants 1 to 14), the suit was dismissed by the learned District Judge, Naushahro Feroze by judgment and decree dated 06.06.2002 and 11.06.2002 respectively; hence this revision application by the Plaintiff.
2. The case set-up by the Plaintiff (Shahan Shah) was that he, Juman Shah (predecessor of the Defendants 2 to 14), and Amanullah Shah (Defendant No.1) had entered into an agreement dated 07.10.1989 for the exchange of agricultural land in their possession in Deh Shahmir Dero and Deh Mooso Dero, Taluka Kandiaro, which land they had inherited from Noorul Shah, who was the father of the Plaintiff and the grandfather of the Defendants 1 to 14. It was averred that there arose a dispute between the said parties on the implementation of the agreement, but that dispute was settled by way of a second agreement dated 12.08.1991, where under the parties agreed to perform the first agreement dated 07.10.1989 for certain additional considerations; that pursuant to the second agreement, the parties exchanged and took possession of land as agreed under the first agreement; and that subsequently, the Defendants 1 to 14 refused to execute a registered deed to transfer the exchanged land; hence the suit for specific performance.
3. The Defendants 1 to 14 pleaded that though the parties had entered into an agreement dated 07.10.1989, the Plaintiff had subsequently tampered with it to include that part of the land that had already been acquired by the Government, and to portray that certain land falling in the katcha area came to the share of the said Defendants to their disadvantage. The second agreement dated 12.08.1991 whereby the aforesaid dispute between the parties was subsequently settled, was not denied by the said Defendants, but it was denied that any exchange of land ever took place. It was the case of the said Defendants that the agreement dated 07.10.1989 was not a contract of exchange of land, but of private partition of land jointly held by the said Defendants, and thus a civil court did not have jurisdiction over the matter. It was also averred that it was the Plaintiff who resiled from the second agreement dated 12.08.1991.
4. The trial court decreed the suit holding that execution of both the agreements was admitted by the Defendants 1 to 14 in evidence; and that the said Defendants had also deposed that they were ready and willing to perform the said agreements. As regards the issue of maintainability of the suit, the trial court held that since the agreement dated 07.10.1989 was one to exchange land, the same was a contract enforceable at law and hence the suit was maintainable before a civil court.
5. On appeal by the Defendants 1 to 14, the appellate court dismissed the suit, and in doing so the sole point framed by the appellate court for determination was whether any land of the Government was included in the agreement dated 07.10.1989, and if so, to what ? The appellate court held that since the Plaintiff’s Attorney had admitted on cross-examination that a portion of Survey No. 224 in Deh Mooso Dero was land acquired by the Government, the suit for enforcement of a contract involving such land was not maintainable.
6. Learned counsel for the Applicants submitted that the question whether any part of the suit land was Government land, was never framed as an issue by the trial court, nor was there any documentary evidence before the appellate court to hold in the affirmative; that even assuming that one of the survey numbers under the contract could not be exchanged, that was no ground to dismiss the suit with regards to other survey numbers; and that since the finding with regards to Government land was given by the appellate court, the Plaintiff is entitled to an opportunity to lead additional evidence to prove the contrary. On the other hand, the learned AAG Sindh representing the official Respondents submitted that once it had been pleaded by the Defendants 1 to 14 that part of the land under the contract was Government property, it was incumbent upon the trial court to have framed an issue to that effect. He submitted that since no evidence was led by the Plaintiff to demonstrate title to the land underlying the contract, the suit was rightly dismissed by the appellate court.
7. Heard the learned counsel. After perusing the record it is apparent that submissions in the case and the findings of both the courts below were misdirected, in that, the crucial question as to the jurisdiction of the civil court to deal with the matter was not adverted to at all. The Defendants 1 to 14 had pleaded in the suit and in the appeal that the agreement dated 07.10.1989 was not a contract of exchange of land, but of private partition of agricultural land jointly held by the co-owners, and thus the jurisdiction of the civil court was ousted by the provisions of the Sindh Land Revenue Act, 1967. That point escaped the attention of both the courts below.
8. Both the agreement dated 07.10.1989 (Exhibit 122) and the agreement dated 12.08.1991 (Exhibit 124) sought to be enforced, recited that the subject land was agricultural land held by the parties jointly. Both agreements acknowledged that such land had yet to be partitioned between the parties by the competent authority. The Plaintiff’s Attorney also deposed that: “We partitioned our landed property amongst ourselves privately and such writing was reduced on 07.10.1989 in presence of witnesses”. Thus, it was manifest that the agreement dated 07.10.1989 was essentially an agreement for private partition of agricultural land. The second agreement dated 12.08.1991 was only an agreement to perform the first agreement on the exchange of additional consideration.
9. Given the fact that the suit land was agricultural land assessed to land revenue, and that the suit was not for a declaratory decree under section 53 of the Sindh Land Revenue Act, 1967, the matter of partition of such land between co-owners was governed by Chapter XI of the Sindh Land Revenue Act, 1967. Section 135 of the said Act provides that any joint owner of the land may apply to the Revenue Officer for partition of his share in the land if certain conditions are met. The proceedings for partition before the Revenue Officer are then regulated by sections 136 to 146 of the said Act.
10. Section 141 of the Sindh Land Revenue Act, 1967 provides:
“141. Disposal of questions as to title in the property to be divided.--(1) 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, he may, 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.
(4) In case the party so required fails to file a suit within the specified period, the 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:---
(b) If 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 Code of Civil Procedure, 1908 Act (V of 1908), 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.
(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.”
Thus, section 141 of the Sindh Land Revenue Act even caters to a situation where a question arises as to title in the land sought to be partitioned, and provides that the Revenue Officer may determine such question himself as though he were a civil court, or he may require the concerned party to file a suit in a civil court.
11. An agreement between co-owners for private partition of their land is also no exception to the jurisdiction of the Revenue Officer under the Sindh Land Revenue Act, 1967. Section 147 of the said Act stipulates :-
“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.”
12. Section 172 of the Sindh Land Revenue Act, 1967 ousts the jurisdiction of a civil court in any matter in which a Revenue Officer is empowered by the Act to dispose of or take cognizance of a matter. Sub-section (2)(xviii) of section 172 expressly excludes the jurisdiction of a civil court with regards to “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.” It is apparent, that the words “not being a question as to title” in sub-section (2)(xviii) of section 172 are not intended to exclude the jurisdiction of the Revenue Officer in a matter of partition involving a question of title, but are meant to cater to the exercise of jurisdiction by a civil court pursuant to section 141 of the Act i.e., when the Revenue Officer seized of a matter of partition declines to determine a question of title himself and requires the party concerned to file a suit in a civil court. An interpretation to the contrary would make section 141 of the Act redundant.
13. In view of the provisions of the Sindh Land Revenue Act, 1967 discussed above, even if the parties had agreed to a private partition of their joint agricultural land, the remedy of the Plaintiff for the partition of his share lay before the Revenue Officer under the Sindh Land Revenue Act, 1967, and in the absence of an order by the Revenue Officer under section 141 of the Act, requiring a party to approach a civil court, the civil court could not have assumed jurisdiction. The express bar to the jurisdiction of the civil court under section 172 of the Act could only be circumvented if the Plaintiff demonstrated that the case attracted one of the established exceptions to the ouster of the plenary jurisdiction of a civil court. But since it was not the case of the Plaintiff that he had made an application to the Revenue Officer under section 147 of the Sindh Land Revenue Act for an order to affirm the private partition, or at least, no order passed under the Sindh Land Revenue Act, 1967 had been impugned in the suit, there can be no exception to the ouster of jurisdiction of the civil court by section 172 of the said Act.
14. Having concluded above that the civil court had wrongly assumed jurisdiction over the suit, therefore, even though the impugned judgment and decree passed in Civil Appeal No. 5/2002 to dismiss the suit was on a ground besides the point, there will be no purpose in disturbing the same. Therefore, this revision application is dismissed along with pending applications. The office shall ensure that the R&P of the appellate court is returned.
J U D G E
 Examination-in-chief of the Plaintiff’s Attorney.
 Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan (2018 SCMR 1444) reiterates the said exceptions viz., that the jurisdiction of a civil court to examine orders/acts of an Authority is not ousted (a) where the Authority was not validly constituted under the statute; (b) where the order/action of the Authority was malafide; (c) where the order/action passed/taken was such which could not have been passed/taken under the law that conferred exclusive jurisdiction on the Authority; and (d) where the order/action violated the principles of natural justice.