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2019 C L C 1343
[Lahore]
Before Atir Mahmood, J
ABDUL GHAFOOR----Appellant
versus
MUHAMMAD SHAFFI and others----Respondents
Regular Second Appeal No. 16 of 2017, heard on 20th February, 2019.
(a) Punjab Land Revenue Act (XVII of 1967)---
----Ss. 135, 172 & 3---Specific Relief Act (I of 1877), Ss. 42, 54 & 8---Suit for
declaration, possession and permanent injunction---Partition of agricultural
property---Exclusive jurisdiction of Revenue Court---Jurisdiction of civil court
barred---Exclusion of site of a town or village from operation of the Punjab Land
Revenue Act, 1967---Scope---Plaintiff filed suit for declaration, partition and
possession with permanent injunction claiming therein that he and defendants were
co-sharers in the property and that defendants were cultivating crops as well as
raising construction over the property---Trial Court decreed the suit whereas Lower
Appellate Court dismissed the suit on the ground that the disputed land did not fall
within the limits of a town or village, therefore, jurisdiction of Civil Court was
barred---Validity---Held, Jamabandi revealed that the whole Khewat was consisted
of land measuring 99-Kanals and 10-Marlas and the land measuring of 93-Kanals
and 19-Marlas was cultivable whereas only 5-Kanals and 11-Marlas was 'Ghair
Mumkin' (non-cultivable)---Khasra Girdawri showed that major part of the land
was cultivable---No sound proof of Abadi at the disputed land was available, rather
the same was cultivable---Lower Appellate Court had rightly relied upon S. 3(2) of
Punjab Land Revenue Act, 1967 and held that plaintiff had not produced any
notification of Collector, or special orders of the Board of Revenue showing that
the land in question had been included within the site of town or village, however,
documents produced by plaintiff showed that major portion of disputed property
was agricultural land and cultivable---Suit property, being agricultural land, came
under the exclusive jurisdiction of Revenue Court and the jurisdiction of Civil
Court was barred---Appeal was dismissed.
(b) Punjab Land Revenue Act (XVII of 1967)---
----S. 135---Partition of agricultural property---Exclusive jurisdiction of Revenue
Court---Jurisdiction of Civil Court---Scope---Partition of agricultural land falls
within the exclusive domain of Revenue Officer and the jurisdiction of Civil Court
is barred---Decree passed by Civil Court relating to the partition of agricultural
land is without jurisdiction and nullity in the eyes of law.
Qamar Sultan v. Mst. Bibi Sufaidan 2012 SCMR 695 rel.
(c) Punjab Land Revenue Act (XVII of 1967)---
----Ss. 135 & 172---Partition of agricultural property---Exclusive jurisdiction of

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Revenue Court---Bar on jurisdiction of Civil Court---Scope---Section 135, Punjab

Land Revenue Act, 1967 confers power upon a Revenue Officer to make partition
of land, on application of any joint owner, whereas, S. 172 of the said Act expressly
excludes the jurisdiction of Civil Courts in any matter in which the Government,
Board of Revenue or any Revenue Officer, is empowered by the Punjab Land
Revenue Act, 1967 to dispose of---Civil Court has no jurisdiction to adjudicate
upon a suit praying partition of agricultural land.
(d) Punjab Land Revenue Act (XVII of 1967)---
---S. 135---Partition of agricultural property---Construction on agricultural
property---No hard and fast rule can be laid down regarding the type and extent of
constructions on agricultural land, which do not exclude it from the purview of
section 135, Punjab Land Revenue Act, 1967 for the purposes of partition
proceedings, subject to peculiar facts and circumstances of the case.
(e) Words and phrases---
----Land---Meaning.
(f) Punjab Land Revenue Act (XVII of 1967)---
----S. 136---Restrictions and limitations on partition---Scope---Section 136(b)(iii)
of Punjab Land Revenue Act, 1967 provides that partition of any land which is
occupied as the site of a town or village, may be refused if, in the opinion of the
Revenue Officer, such partition is likely to cause inconvenience to the co-sharers or
other persons directly or indirectly interested therein, or to diminish the utility
thereof to those persons.
(g) Punjab Land Revenue Act (XVII of 1967)---
----S. 3---Exclusion of certain land from operation of the Punjab Land Revenue
Act, 1967---Scope---Agricultural land which is occupied as the site of a town or
village remains under the purview of the Punjab Land Revenue Act, 1967 unless
such land is not assessed to land revenue----Agricultural land in a town or village,
which is built upon, comes out of the scope of the term "land" and quits from the
purview of the Punjab Land Revenue Act, 1967.
Muhammad Sadiq v. Abdul Aziz 1990 CLC 1387 rel.
Rana Aamir Iftikhar for Appellant.
Barrister Usman Ghani Rashid Cheema and Ijaz Yousaf for Respondent No.1.
Asad Abbas Dhothar for Respondents Nos. 2 to 7.
Date of hearing: 20th February, 2019.
JUDGMENT
ATIR MAHMOOD J.----Through this appeal appellant has challenged the
judgment and decree dated 19.12.2016 passed by learned Additional District Judge,
Gujranwala, whereby, appeal filed by the respondents was allowed.

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2. Precisely, the facts of the case are that appellant/plaintiff filed a suit for
declaration, partition and possession with permanent injunction against the
respondents before learned Civil Judge, Gujranwala, alleging therein, that the
appellant and respondents are co-sharers in the disputed property measuring 99-
Kanals, 10-Marlas bearing khewat No.10, Khatooni Nos.22-28, qitat 18 situated at
Ladhewala Goraya, District Gujranwala vide registered Haqdaran Zameen for the
year 2007-08; that respondents are cultivating crops on the disputed land as well as
illegally raising the construction over it and on request to restrain from this act,
they refused to do so, hence, the present appellant filed the suit. The suit was
resisted by the respondents. Out of the divergent pleadings of the parties, issues
were framed. Thereafter, evidence from both the parties was called for which was
adduced and recorded, accordingly. After hearing the arguments, learned trial Court
vide judgment and decree dated 07.10.2015 decreed the suit. Feeling dissatisfied,
respondents assailed this judgment and decree before learned lower appellate Court
while filing an appeal which was accepted vide impugned judgment and decree
dated 19.12.2016 and suit was dismissed. Hence, this appeal has been filed.
3. It is contended by the learned counsel for the appellant that impugned
judgment and decree passed by learned lower appellate Court is the result of
misreading and non-reading of evidence available on the record; that the learned
lower appellate Court has committed illegality and material irregularity while
passing the impugned judgment and decree; that the respondent No.13 has admitted
in his written statement that there are illegal occupants in the disputed suit land,
therefore, same could not be partitioned, however, this important aspect of the case
has been overlooked by the learned lower appellate Court. Lastly, prayed for
acceptance of this appeal and setting aside of impugned judgment and decree
passed by learned Additional District Judge, Gujranwala.
4. On the other hand, learned counsel for the respondents has vehemently
opposed this appeal and fully supported the impugned judgment and decree passed
by learned lower appellate Court. He accordingly prays for dismissal of the instant
appeal.
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,

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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 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:-

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(i) ..
(ii) ..
(iii) ..
(iv) ..
(v) ..
(vi) ..
(vii) ..
(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;

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(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
(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 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

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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:

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" he mentioned that some "Kothay" 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.
12. As a consequence of above discussion, this appeal is without any force
which is accordingly dismissed. No order as to cost.
SA/A-50/L Appeal dismissed.

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