P L D 1961 W (PLP)

This is a revision petition against the order of the Commissioner, upholding the order of the Collector who set aside the mode of partition sanctioned by an Assistant Collector, 1st grade. The facts of the case may briefly be re‑stated. The entire land in question is about 7024 kanals odd, of which 6863 kanals odd is nehri. It is iii connection with the partition of this nehri land that the dispute exists between the parties. By virtue of some private partition or otherwise the parties have long step in possession of two blocks of this land separated by a road, The block to the north is in possession of the respondents; the block to the south is iii possession of the petitioners. The made of partition sanctioned by the Assistant Collector, 1st Grade, respected and recognised the parties' long‑standing possession of their respective blocks. Actually the Assistant Collector took great care in drawing up and sanctioning the mode of partition. He visited the site on 26‑10‑1956 and recorded a full inspection note on the same day. In this note be discussed nearly sll the relevant issues, viz., classification of soil, the quality Orland, the parties' respective possessions, etc. and came to the conclusion that the best method of partition of this land was to leave the parties undisturbed in their respective possessions. On the duality of the land he made the following observations:‑ (i) "the contention of the applicants (now respondent' that the land to north of the road is of bad quality is un4,0ept able ; (71) the whole nehri area whether to the north or to the south or the road is of a uniform quality ; (iii) the allegation of the applicants that cotton can not be grown in the north is not correct ; (iv) Muhammad Khan and others, petitioners, have erected deras and residential houses at high expenditure in the south block. Similarly respondents Ghulam Haider and others have set up their deras and houses in the north block." Further, in his preamble to the mode of partition he clarified that although the assessment rates were somewhat different, Rs. 3‑4‑0 per acre in the north and Rs. 3 per acre in the south, the position now was that the means of irrigation being the same, the quality of land on either side was "absolutely similar". He further emphasized that the present possessions of the parties promoted consolidation of lands and he saw no reason why possessions should be disturbed and the present consolidated holdings broken. These facts were also broadly supported by respondent Ghulam Haider in his statement dated 26‑10‑1956 before the Partition Officer. He admitted that the present possessions of the parties have come down from the time of their grand‑fathers made for consolidation, that the petitioners had built their houses in the south block, that "although the entire nehri area was of the same kind", he would like the petitioners' possession to be disturbed because the land to the south of the road was of better quality. From the settlement rates it could appear that the land in the north was better than the land in the south; but it may be that the petitioners have, in the course of many years, slightly improved their land which the respondents are now converting. Respondents Ghulam Haider and others went in appeal to the Collector against the mode of partition and drew his attention to an extract of the Jamabandi of 1952‑53 which showed that both the parties were in possession of both the areas; and the Collector, just on this basis, accepted their contention that the nehri area was of different qualities and must, therefore, be divided. The learned Commissioner adopting the Collector's line of reasoning dismissed the appeal of the petitioners' Muhammad Khan and others. The learned Advocate for the petitioners has argued that the Jamabandi extract of 1952‑53 is wholly undependable as it was prepared in collusion with the interested parties. In rebutting this extract of Jamabandi for 1952‑53, the learned Advocate has depended mainly on three factors. (a) The statement of Ghulam Haider respondent dated 26‑10‑56 itself concedes that the petitioners were in possession of the south block with their residential buildings thereon. (b) The extracts from Khasra Girdawri from 1947 to 1951 and from 1952 to 57 show the petitioners are in possession of the south block. (c) The extract from the next Jamabandi, for 1956‑57, shows that while the respondents are in possession of the north block, the petitioners are in possession of the south block. It is thus contended by the learned Advocate for petitioners that the entry in the solitary extract from Jamabandi for 1952‑53 stands refuted by both the preceding and succeeding entries in Khasra Girdawari and Jamabandi and also by the statement of respondent Ghulam Haider before the partition officer dated 26‑10‑1956. The learned Advocate for respondents has not at all dealt with this rebutting evidence or touched upon the con tention put forward on behalf of the petitioners. It would thus appear that the sole ground on which the Collector and the Commissioner based their orders is completely knocked out. On the other hand it must be reiterated that posses sion which is of long‑standing and which promotes consolidation must be given sufficient weight in chalking out the lines of partition. (This is fully supported by an earlier decision of the Board of Revenue, P L D 1958 W. P. (Rev.) 78). It is also important that the classification of soil recorded at the settlement should not be disregarded, on the basis of minor changes or differences. which are bound to occur in course of time, in favour of a meticulous application of the principle of equal proportions, especially where the latter is calculated to disrupt established possession, undo consolidation and create a perpetual bone of contention between the parties. Finally, it is all to the good if the mode of partition incidentally ensures that the money and labor expended by a party over the gradual improvement of the land in his possession are not lost to him. I therefore, accept the revision petition set aside the orders of the Collector and the Commissioner and restore the mode of partition sanctioned by the Assistant Collector on 6‑11‑

56. K. M. A. Petition accepted.