2003 PLP 87 (CLC)

This single order will dispose of two revision petitions filed by the petitioner named‑above against two different orders both dated 28‑3‑2002 of the Presiding Officer Revenue Appellate Court No. III, Saidu Sharif. Perusal of the record reveals that the impugned land is the ancestral property of the parties which after the death of the predecessor namely Abdul Zaman devolved upon the parties to the suit by way of inheritance. The present respondents, it appears from the record, filed an application for partition of the suit‑land before the Revenue Officer Bunner and Puran. The present petitioner in both the cases appeared before the Revenue Officers and raised an objection that since his suit for declaration is pending before the Civil Court, therefore, partition proceedings may be stayed till disposal of the aforesaid civil suit. The Revenue Officers, Buner and Puran i.e. Tehsildar Dagar and Tehsildar Puran vide their orders dated 18‑5‑2001 and order dated 8‑2‑2001 respectively (the Tehsildar Puran first stopped the proceedings vide order dated 14‑12‑2000 on production of status quo order from the High Court, but later on vide his order dated 8‑2‑2001 reviewed his earlier order) did not accept his plea on the ground that any joint owner can file application for partition. Those orders were assailed before the District Collector, Buner and District Collector. Shangla in appeals who also dismissed them vide their orders dated 13‑12‑2001 and 16‑11‑2001 respectively. On further appeals of the present petitioner against the orders 13‑12‑2001 of District Collector Bunner and 16‑11‑2001, of the District Collector, Shangla, the Presiding Officer Revenue Appellate Court No. III, Saidu Sharif vide his two orders dated 28‑3‑2002 stayed the partition proceedings in both the cases till further orders from the High Court. Hence the present revision petitions. Arguments heard. The plea of the present petitioner that a civil suit is pending in the Court of the Senior Civil Judge, Shangla, and that the Revenue Court has no jurisdiction to entertain the partition application carries no weight as the partition regarding Agricultural Land is within the jurisdiction of the Revenue Court. Under section 135 of the Land Revenue Act any joint owner, who is recorded in the Revenue Record as such, can apply for partition. In the instant case the respondents were recorded as joint owners in the Revenue Record, the validity of which has not been challenged. Although a civil suit is pending in the Court of Senior Civil, Judge, Shangla, yet title of the respondents to the property under partition has not been questioned by the petitioner, rather the petitioner has admitted the property to be ancestral, devolved upon the parties after death of their father in equal share as is clear from para. I of his plaint before the Senior Civil Judge, Shangla. The question of title means a dispute as to the ownership of the property and the careful perusal of the plaint would show that the petitioner has never challenged the ownership. The alleged civil suit is regarding declaration of the property bearing Khasra No.1670 situated in Mauza Saidu Sharif, Swat which is not the subject of the present partition proceedings and for the recovery of Rs.17,00,000 and has therefore, no relevancy with the present partition case. Partition proceedings can only be stayed when a Revenue Officer after examining the case decides that question of title is involved. Partition proceedings cannot be stayed merely on the assertion of the party that such a question exists, neither in law nor in equity is there any warrant for the proposition that partition proceedings must be stayed the moment a party utters that a question of title is involved. Revenue Authorities being in possession of Revenue Record, wherein a party has been recorded as co‑sharer are bound to proceed with the application of partition of the joint land in accordance with the law. The only point which is different to case of Revenue Office: Puran from that of Daggar is that in case of partition proceedings before Assistant Collector, Puran, he had reviewed his earlier order dated 14‑12‑2000, vide which he had stopped the partition proceedings on production of status quo order, from august High Court, by his order dated 8‑2‑2001 after proper service of notice Chaspangi on the petitioner. By passing such an order the Revenue Officer has committed no illegality or irregularity. Under section 163 of the Land Revenue Act the Revenue Officer was competent to review his own order, in the best interest of justice. In view of the above circumstances, I have come to the conclusion that the plea of the petitioner (Shams‑ul‑Haq) for modification of the impugned order, of the Presiding Officer, Revenue Appellate Court No. III to the extent to stay partition proceedings is not justified in the eyes of law as the respondents (Mr. Aurangzeb etc.) are co‑sharers in the joint property having right to separate their share under the law. The suit property/land to be partitioned is not disputed in the Civil Court between the parties to affect the partition proceedings as is evident from the verdict of the High Court passed on the appeal of the petitioner. Hence see no merit in the instant revision petitions which are hereby rejected with no order as to cubs. S.A.K./62/Rev. Revision petitions dismissed.