P L D 2012 Peshawar 151 (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioners herein, through instant writ petition, has questioned the orders of revenue hierarchy passed/delivered on their application for partition of joint property whereby their application was dismissed by the Deputy District Officer, Revenue, vide his order dated 15-8-2007 and his appeal against the same was also dismissed and then his revision before Presiding Officer, Revenue Appellate Court, Malakand and his second revision before the Board of Revenue also met the same fate when these were respectively dismissed by the respondents and the initial order of dismissal of partition application by Deputy District Officer, Revenue dated 15-8-2007 was upheld.

2. The brief but the material facts leading towards filing of instant writ petition are that the petitioners being joint owners of property situated in village Badragga, Tehsil Dargai, Malakand Agency filed an application for partition of their share in the joint property. Though this application was initially allowed but on appeal of the respondents, case was remanded back to the Revenue Officer for proceeding afresh. Thereafter, the petitioners as well as the respondents led their evidence and the Deputy District Officer, Revenue/Assistant Collector dismissed the application merely on the ground that a private partition between the parties had already taken place way back in the year 1962 by referring to the entries made in a partition Mutation No.124, entered on 15-4-1972 and further held that every co- owner is in possession of their respective shares given to them on the basis of said private partition and everyone is enjoying and utilizing their respective shares in accordance with the said partition and dismissed the application filed by the petitioners and such dismissal was upheld up to the Board of Revenue. 2A. The learned counsel appearing on behalf of the petitioners vehemently contended that there was no private partition between the parties and their properties are lying joint and the joint owners are utilizing the properties just being the joint/co-owners and not under any partition. He next contended that the impugned order of the Deputy District Officer, Revenue and the other respective orders of the revenue hierarchy dismissing his appeals and revisions by maintaining the original order are against law, which cannot be maintained. He next contended that the predecessor of the parties, namely Abdur Rashid died somewhere in 1960-1961 and by that time, the petitioner No.1 was a minor of about five to six years of age. So, if any private partition fraudulently made by respondent No.1 being his elder brother, would not be binding on him and requested for setting aside of the orders. As against that, the learned counsel for respondents, in support of the orders passed by the revenue hierarchy, submitted that since 1946, no mutation in the entire region of Malakand has been attested, so their mutation of private partition entered on 15-4-1972 is yet to be attested amongst many other similar mutations, but every co-owner to the extent of his/her share is enjoying the possession and fruits of their respective shares in the property; the possession of all the co-owners are on the basis of said private partition shown in the mutation and many of the co-owners have further alienated their shares and said mutations are also waiting attestation. Further argued that when once a partition between the parties was made in accordance with law, then subsequent application for partition is not maintainable and was rightly dismissed by the revenue hierarchy.

3. Learned counsel for the parties were heard and record of the case was perused.

4. Before we enter into the merits of the case, it would be appropriate to reproduce the provisions of section 147 of West Pakistan Land Revenue Act, 1967, which was extended in the Malakand Region vide N.-W.F.P. Regulation No.1 of 1974, on 17-4-1974:--

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". A look at the above-quoted provision of Law would make it clear that if there is private partition between the parties/joint owners, any of them, under the law, has to apply to the Revenue Officer for an order affirming the said private partition effected between the joint owners. The Revenue Officer then would inquire into the matter about the existence or otherwise of private partition and if he is satisfied after the inquiry, then he has to make an order affirming the private partition between the parties and then has to proceed further under the other relevant provisions regulating the partition proceedings like administration of property excluded from partition, distribution of revenue and rent amongst the co-owners after partition, instrument of partition and delivery of possession to all the concerned according to the partition so reached between the parties and affirmed by the Revenue Officer. The above-said procedure is required to be adopted by the Revenue Officer even if it is a private partition with consent of the parties. Now coming to the facts and circumstances of the present case, much stress has been given by the respondents as well as the Revenue Officer on an unattested mutation of partition which was entered on the basis of private partition deed on a white paper, dated 2-1-1960. The entries of relevant column No.13 of the mutation are reproduced below:-- The perusal of said entry, itself, would reveal that neither it refers to any application so made to the Revenue Officer, nor it refers to any order of Revenue Officer affirming the said private partition between the joint owners after proper enquiry and his satisfaction. What appears from the record is, that the entries made in the mutation were made by the Patwari Halqa at the instance of respondent No.1. If there are relevant entries in daily-diary would not help the respondents. It has also not been denied by the respondents that at the time of execution of said alleged private partition deed dated 2-1-1962, petitioner No.1 was a minor and it is also an admitted fact that respondent No.1 is the elder brother. He being an elder brother has an undue influence upon his sisters being women folk and the younger brother who was a minor at that time. It was argued by the respondents that since the private partition, every co-owner is enjoying the property according to his respective share and many of them have further alienated their shares in the names of different people, but this very fact alone would not be sufficient to establish on the record that there was a private partition between the parties. The petitioners and the respondents are the co-owners/co-sharers of the property and can deal with their properties being joint owners, can sell and purchase the joint properties. The entire record of the case is silent with regard to any application moved to the Revenue Officer for giving effect to the alleged private partition or any order of the Revenue Officer reflecting the factum of affirmation of private partition and this is a sine qua non under section 147 of the Land Revenue Act, 1967, for implementation of any private partition. In absence of the same, mere entry of partition mutation cannot be declared to be sufficient enough to have the protection of law. The exercise of jurisdiction by the revenue hierarchy, in the circumstances, is nothing short of mis-appreciation of law on the subject and they have failed to consider the record in its true perspective. It is also very strange to observe that no further 'Jamabandi'/record of rights has been prepared in the entire Region since 1946. It is again an astonishing fact that the Act of 1967 was extended in the Malakand Region vide N.-W.F.P. Regulation No.1 of 1974, on 17th April 1974, but in spite of its extension, nothing material and practical is being done in accordance with the West Pakistan Land Revenue Act, 1967. The revenue hierarchy working in the Region is bound to act in accordance with law. We are unable to understand how the concerned authorities, people of the region (the actual affectees) and the political leaders of the area have blindfolded their eyes on such an important matter. We, in the circumstances, direct the concerned authorities to look into the matter seriously just to overcome the problems and disputes faced by the poor people. So, we are constrained to allow this writ petition by setting aside all the orders of revenue hierarchy and sending back the case of petitioners to the Deputy District Officer for initiating a fresh process of partition amongst the co-sharers strictly in accordance with the provisions of the West Pakistan Land Revenue Act, 1967, regulating the partition of joint properties by also considering the authenticity of factum of private partition in the light of observations made above and in accordance with law if so alleged. H.B.T./149/P Case remanded.