2001 PLP 113 (CLC)

Muhammad Usman and Mst. Kafian filed two separate applications for partition of their respective share in the joint holding. Revenue Officer initiated proceedings for partition. The present petitioners in the beginning of the proceedings were present but later absented themselves whereupon a public proclamation was made in a National Daily for their appearance before Revenue Officer Halqa in connection with partition proceedings. On their failure to appear, ex parte proceedings were initiated against them. Revenue Officer, Halqa vide his order, dated 3rd January, 1995 accepted the Wandas submitted to him by the present respondents. Muhammad Ashiq, etc., and Muhammad Younus, etc., the other co‑sharers who had deliberately absented from associating with the partition proceedings, preferred two appeals before District Collector, Khanewal. These appeals were dismissed on the ground;

"the appellants (the present petitioners) appeared in the lower Court but they did not submit their Wanda and subsequently they absented themselves on 26‑12‑1995. As such they are estopped to claim that the impugned decree has been passed in their absence."

2. Muhammad Ashiq and others filed revision petition before Additional Commissioner (Revenue), Multan Division against the order of District Collector which was dismissed on the score that "the petitioners have surrendered their right under their own sweet‑will. The lower Court had got no alternate but to accept the Wandas prepared by the respondents as there was no question against it. The petitioner could not explain their wilful absence in pursuing their legal right". This order of Additional Commissioner, dated 1st July, 1998 has been impugned in this revision petition.

3. I have heard learned counsel for the two parties. It is contended by learned counsel for the petitioners that Revenue Officer has to act in accordance with law irrespective of the fact whether any of the co‑sharer is present before him or not. The order of Revenue Officer was patently bad in law as he did not comply with the mandatory requirements of law. He accepted the Wandas which were prepared by the present respondents and did not apply his mind to determine essential question involved in the partition of the land.

4. It was contended by learned counsel for the respondents that by their absence from the partition proceedings, the present petitioners had forfeited willingly their rights to question the validity of the order passed by A.C.‑I.

5. I have given careful consideration to the arguments of the parties. It is a fact that Revenue Officer Halqa ordered the partition in accordance with the Wandas which were submitted to him by the present respondents.

6. Before Additional Commissioner, it was argued that Revenue Officer was duty bound to ascertain the status of land, classification of it, means of irrigation and cultivating possession of each co‑sharer, etc. It was further argued that Revenue Officer during the partition proceedings has to ascertain many questions such as possession, improvements made by the co sharers, etc. in pursuance of provisions of West Pakistan Land Revenue Act contained in sections 137 to 150 and instructions contained in paras. 18.1 to 18.21 of the Land Records Manual.

7. The Additional Commissioner (Revenue) in his order did not advert to the points raised on behalf of the petitioners. He dismissed the appeal merely on the ground that petitioners had surrendered their right.

8. All Revenue Courts are duty bound to strictly adhere to the requirements of law. Even if the petitioners were absent willingly or otherwise during partition proceedings, the Revenue Officer Halqa was bound by law to act in accordance with the provisions of law. He was required to consider all aspects of partition such as title in the property to be divided, possession of each co‑sharer, classification of land, proximity of any portion of land near Abadi Deh, etc., before drawing up the mode of partition. No mode of partition was framed by the Revenue Officer. Even if the present petitioners were absent in the partition proceedings, any mode of partition prepared by Revenue Officer Halqa was appealable within 30 days by any of the aggrieved co‑sharer. The absence of co‑sharers from the partition proceedings cannot in any way absolve the Revenue Officer Halqa from his laid down duty. The order of A.C.‑I. was, therefore, patently bad in law whereby he allowed partition of the land on the basis of Wandas prepared by the present respondents. District Collector and Additional Commissioner, therefore, fell in error by upholding the order which was legally infirm. The orders of D.C./Collector, dated 5th August, 1996 and Additional Commissioner, dated 1st July, 1998 are, therefore, set aside and the case is remanded to A.C.‑I for decision afresh within two months after hearing the parties who may chose to participate in the partition proceedings. H.B.T./22/Rev. Case remanded.