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Civil Revision No. 268 of 1973, decided on 6th June, 1982.

‑‑ S. 49 (3), Third Group (k) and Civil Procedure Code (V of 1908), O. V II, r. 10‑Jurisdiction of Revenue Court‑Suit for rendition of accounts between co‑sharers in respect of joint holding with date trees standing thereon but having no separate entity‑Held, covered by cl. (k) of S. 49(3) Third Group‑Judgment and decree of Courts below set aside and case remanded with direction that plaint be returned for presentation to proper forum for adjudication as provided under r. 10, O. VII, Civil Procedure Code (V of 1908)‑[bass v. Aya Ram 15 P R 1892 ; Varu v. Abdil 46 P R 1893 ; Nasib Singh and others v. Amin Chand and others A I R 1942 Lah. 152 held not applicable]. [Jurisdiction].

Dass v. Aya Ram 15 P R 1892 ; Varu v. Abdil 46 P R 1893 and Nasib Singh and others v. Amin Chand and others A I R 1942 Lah. 152 held not applicable.

Jhanda Khan v. Fateh Din and others 111 P R 1890 ref.

S. Bashir Hussain Shah for Petitioner.

H. Saadullah Khan Mian for Respondents.

Dates of hearing: 5th and 6th June, 1982.

Mohammad Ramzan son of Ghulama, resident of Pahar Pur, Tehsil and District D. I. Khan has filed this revision petition challenging the judgment and decree of the learned District Judge D. 1. Khan dated 24‑5‑1973, confirming the judgment and decree of the learned Civil Judge, D. I. Khan, dated 22‑7‑1972, granting a preliminary decree for rendition of accounts in favour of the plaintiff respondents.

2. The brief facts of the case are that Mohammad Sadiq and others, instituted a suit for the recovery of Rs. 450 or whatever amount was to be found due after the rendition of accounts as the share in the produce of the date trees for the period 1967‑68, 1968‑69 and 1969‑70.

3. This suit was contested by Mohammad Ramzan, defendant res pondent by filing a written statement wherein he denied the title of the plaintiff in the suit property meaning thereby that he did not admit to be accountable to the plaintiffs. Objection with regard to limitation and cause of action was also raised. However, specific objection with regard to the jurisdiction of the Court was not raised in the written statement. The learned trial Court, in the light of the pleadings of the parties framed the following issues:‑

(1) Whether the plaintiffs are the owners of the suit land and date trees therein

(2) Whether the plaintiffs have got no cause of action

(3) Whether the suit is not within time

(4) Whether the plaintiffs are entitled to the rendition of accounts

(5) Relief.

4. After recording the evidence of the parties, the learned trial Court decreed the suit by granting a preliminary decree for the rendition of accounts.

The appeal filed by the present petitioner also failed.

5. In this revision petition, the only point urged by the learned counsel for the petitioner, is that the civil Court has got no jurisdiction to entertain the present suit in view of section 49(3) Second Group (k) of the N: W. F. P. Tenancy Act, 1950. In order to appreciate the point raised, it will be for advantage to reproduce the relevant provisions of law which is as under:‑

"S.49.‑The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Courts shall take cognizance of any such dispute of matter with respect to which any suit might be instituted:

Second Group (k) : suits by a co‑sharer in an estate or holding for share of the profits thereof or for a settlement of accounts."

According to then learned counsel the plaintiff's claim was based on being a co‑sharer in the property, therefore, the suit of the nature was exclusively triable by the Revenue Court. The important question for determination for attracting the provisions of the aforementioned section of law, I have to determine as to whether the subject‑matter of the suit comes within the purview of land as defined in the N: W. F. P. Tenancy Act. Land has been defined in section , clause (1) of the said Act, which is as under :‑

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 agricultural purposes or for purposes subservient to agriculture or for pasture; and includes the site of building and other tenures on such land or to any right or interest in any such land.

6. Estate has been defined under section 2(ix) of the ' N.‑W, F. P. Tenancy Act, which is as follows:‑‑

Estate' means any area‑

(a) for which a separate record‑of‑rights has been made; or

(b) which has been separately assessed to land revenue or would have been so assessed if the land revenue had not been released, compounded for or redeemed:

(c) which the Board of Revenue may, by general rule of special (sic) declare to be an estate.

Similarly, holding has been defined in subsection (10) of section 4 of the West Pakistan Land Revenue Act, 1967, which is as under:‑

Holding means a share or portion of an estate held by one land owner or jointly by two or more land owners.

7. The learned counsel for the respondents referred to Dass v. Aya Ram (15 P R 1892), and subsequent authority Varu v. Abdil (46 P R 4893) wherein suit for date trees was held to be not a suit land and was declared to be triable by the civil Court. It is important to note that in the latter authority there had been no claim with respect to the land, upon which the trees were standing. Similarly reference was also made to Nasib Singh and others v. Amin Chand and others (A I R 1942 Lah. 152), wherein suit between the owner of the land and the owner of the trees was not held to be suit between landlord and tenant. The authorities referred to above are not applicable to the facts of the present case. In the case cited there was no identity of interest in the land and the trees standing thereon. It has been specifically mentioned in that case that there had been no claim of ownership in the land on which the trees were standing. To appreciate the facts of the case I have to revert to the contents of the plaint to find out whether the claim to the share in the date trees flows out of the ownership of the land on which trees are standing or the claim is independent of any ownership in the land. The suit is for the rendition of accounts as share in the date trees in Khata No. 319 measuring 54 kanals 1 marla. In para. 1 of the plaint plaintiffs claim to be a co‑sharers with the defendants in equal share in Khata No. 319 and in possession of the date trees copy of the Jamabandi of the land for the land for the year 1936‑57 has also been placed on the file. Similarly in his statement in Court, he has categorically stated that the suit land was allotted to his father who had in term gifted it in their favour and the date trees exist in the same land. In the cross‑examination. he admitted that previously, there had been a separate record of rights for date trees but now the same is subject to the ownership of the land on which trees are standing.

8. From the plain reading of the plaint and the statement of the plaintiffs given in Court, there can be no hesitation in holding that in the case in hand, the date trees have no separate entity. It has been held in Jhanda Khan v. Fateh Din and others (111 P R 1890) that land not occupied as the site of any building but occupied or let for agricultural purposes is covered by the word land'. Similarly fruit garden is a land within the meaning of the Punjab Courts Act unless such land be the courtyard or the compound of a house.

9. In view of what has been stated above and in circumstances of this case, I am clear in my mind that the present suit for the rendition of account between the co‑sharers in respect of the joint holding is therefore, covered b section 49 (3) Second Group (k) of the N.‑W. F. P. Tenancy Act, 1950. Consequently the judgment and decree of both the Courts below are set aside and the case is sent back to the learned trial Court with the direction to return the plaint alongwith the relevant documents to the plaintiff for presentation to the proper forum for adjudication as provided for under Order VII, rule 1 of the Civil Procedure Code. The parties are left to bear their own costs.

S. Q. Case remanded.

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