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Revision No. 60 of 1962‑63, decided on 13th July 1963, District Peshawar.

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-----S. 117 (2) (c) --Suit filed for possession and not for declaration of title- Revenue Officer constituting himself civil Court and deciding case --Appeal lies to civil Court and not to Controlling Revenue Authority.

Naraindas v. Siraj Din and others A I R 1926 Lah. 238 and Mst. Laehmi Bai v. Mst. Handi Bai 100 P R 1913 ref.

The previous history of this case need not be gone into for determination of the point under consideration. This is a, partition case under section 117 of the Land Revenue Act in which a question of title had been raised by the plaintiffs-- respondents. The parties ultimately came up to the Board of Revenue and it was decided by me in Revision No. 287 on 7‑9‑1961 that the plea of title raised was genuine and it was in cumbent on the Revenue Officer either to constitute himself into a civil Court and determine the question or decline to grant the partition until the question has been determined by a competent civil Court. The petition was accordingly accepted and the proceedings remanded for a decision with the above direction. The Revenue Officer thereupon proceeded to constitute himself into a civil Court and directed Momin Khan and others who had made the application for partition to present a regular plaint. However, a suit for possession of the land was brought by them and not for a declaration of title. An objection was raised by the petitioners that keeping in view the nature of relief sought by Momin Khan and others the question in dispute, was cognizable by the civil Courts only and the revenue Court was not competent to give the relief sought. This objection was over‑ruled by the trial Court, in appeal and again in revision by the Additional Commissioner, Peshawar. A second revision petition has now been filed.

The only point that has been argued before me is that section 117 of the Land Revenue Act gives to the Revenue Officers only limited powers as civil Courts to determine only a question of title arising in partition proceedings and the Revenue Officer has no powers to take cognizance of a suit for posses sion of land the title of which is in dispute. Reliance, is placed on Naraindas v. Siraj Din and others (A I R 1926 Lah. 238) which follows 100 P R 1913. The contention urged on behalf of Momin Khan and others is that under Order VII, rule 7, C. P. C., it is competent for a Court to grant such other relief as it may think just to the same extent as if it has been asked for. This plea obviously would apply in the case of civil Courts and not hold good in the case of a Revenue Officer constituting himself into a civil Court for determining a question of title under the pro visions of section 117 of the Land Revenue Act. Section 42 of the Specific Relief Act lays down that a suit for declaration when not asking for any further relief would be tenable only under certain circumstances. In Mst. Lachmi Bai v. Mst. Handi Bai (100 P R 1913) it was held that section 117 of the Punjab Land Revenue Act allows a party to partition proceedings to bring a declaratory suit without asking for other relief. He could undoubtedly bring a suit for possession but that would exclude the jurisdiction of the revenue Courts.

11 Finally the question arises what would be the proper forum for appeal and revision in a case where the Revenue Officer has constituted himself into a civil Court and admitted a suit for possession and not merely for a declaration. I have no doubt that such a suit is not within the competence of a Revenue Officer constituting himself into a civil Court but if he has done so, would it be for an aggrieved party to approach the Controlling Revenue Authority or the proper civil Court to have the matter put right. No ruling has been shown to me on this point but it appears that this would be a matter for determination by the civil Courts and not the Controlling Revenue Officers. This, conclusion can be inferred from the provisions of section 117 (2) (e) of the Land Revenue Act which lays down that when a Revenue Officer constitutes himself into a civil Court an appeal or revision would lie to the civil Courts and not the Controlling Revenue Officers.

As a result of the above discussion I would accept the revision petition, set aside the orders passed by the Collector and the Additional Commissioner as being without jurisdiction and leave it to the aggrieved party to seek his remedy in the proper civil Court.

K. M. A. Petition accepted.

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