2023 PLP 1317 (MLD)

FAZAL SUBHAN, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) the petitioner has prayed the following: - "It is, therefore, most humbly prayed that on acceptance of instant writ petition, the judgments passed by the learned Member Board of Revenue may be set-aside and that of Additional Deputy commissioner, Mansehra may be restored with cost throughout."

2. Brief facts of the case are that the respondents filed (Twenty 20) applications under section 135 of the West Pakistan Land Revenue Act, 1967 (Act) in the year 2005 for partition of their joint property, situated in different Khattas and Khasras of Village Attarshisha, District Mansehra. After filing their applications, the petitioners/respondents were summoned, respondents Nos.1 to 11 appeared and filed their replications wherein they took the plea of private partition, alleging to have been duly effected and each owner is in possession of their respective shares.

3. Record transpires that in all the 20 partition petitions, proceedings were carried out and the DDOR suggested mode of partition on 18.05.2010 and on 17.08.2010, on submission of Naqsha Jeem, order for implementation was passed. During the pendency of petitions, parties through their counsel, consented for filing of 3 partition petitions and agreed that in the remaining 17 petitions, the respondents shall be given property on MNJ Road as per entitlement on the basis of revenue record. After the decision by the DDOR, it was challenged through appeal which was allowed in 17 petitions and matter was remanded by Additional Deputy commissioner Abbottabad. Dissatisfied with this order, the respondents challenged in revision which was allowed on 13.10.2015 with the direction to the lower court to revisit the 3 petitions to ensure justice.

4. On receipt of record the Additional Assistant Commissioner appointed commission and after calling for objections, vide order dated 07.12.2016 rejected the objections of petitioners and directed for "Sanad Taqseem". They filed appeal before Additional Deputy Commissioner which was allowed on 31.08.2017 with the directions to the lower Court for appointment of fresh commission to visit the spot for inspection of Tatima jat in the presence of parties. Muhammad Saddique etc challenged the said order before the Court of Additional Commissioner Hazara Division which was accepted on 16.01.2018 and order of ADC Mansehra was set-aside and that of lower court was upheld. This order was further challenged in revision petition before Senior Member Board of Revenue (SMBR) by the petitioner which was also dismissed on 11.07.2018, which has now been assailed through this writ petition.

5. Arguments of learned counsel for parties heard and record perused.

6. Before this Court, two main objections were raised by the petitioner, firstly that in the first round of proceedings in the partition proceedings, Yasir Ali Khan, while posted as Deputy District Officer, Revenue and Estate Mansehra passed an order on 02.02.2012 and later on he being posted as Additional Deputy Commissioner, Mansehra had decided the appeal in the case, hence he may not have heard the appeal in the same matter and secondly, the petitioners were deprived of their entitlement on NJP Road despite agreement of the parties.

7. After considering these objections it is noticed that Yasir Ali Khan, while posted as Deputy District Officer, Revenue and Estate, Mansehra initially decided the partition petition on 02.02.2012. The matter was pending before different forums and an appeal against the order of Additional Assistant Commissioner dated 07.12.2016 came up for hearing before Yasir Ali Khan Additional Deputy Commissioner, Mansehra and this time too, he while accepting the appeal vide order dated 31.08.2017, remanded the case for decision in light of order of Additional Commissioner Hazara. Thus it is clear that on both the occasions, petition/appeal of the petitioners were allowed by the said officer in favour of petitioner while serving in different capacities hence, legally they cannot raise any objection of mala fide or prejudice to the said orders.

8. Regarding the carving of Tatima on the basis of report commission, it is clear that this aspect of the case relates to factual controversy and the determination of possession of parties can only be made through spot inspection hence such controversy cannot be determined by invoking constitutional jurisdiction of this Court. In this respect, there are plethora of judgments of the August Superior Court that when there are conflicting claims of factual nature and pending before the Court of competent jurisdiction, then High Court, in exercise of its constitutional mandate cannot go into such factual controversy and these may better be left to the Court of competent jurisdiction for decision. In this respect reliance is placed on the case of Shafiullah Jan v. Government of Khyber Pakhtunkhwa a through Secretary Small Industrial Estate, KPK Peshawar and 6 others, reported in 2018 CLC Note 17 [Peshawar (Bannu Bench)]. Similarly, in the case of Zafar Abbass and 4 others v. Member Board of Revenue Punjab and 18 others, reported in 2021 YLR Lahore 912, it was held that ;- "The learned counsel for the petitioners despite taking maximum time failed to convince that either respondent No. 2 was not sharer or he was awarded more land than his entitlement. The revenue hierarchy while passing the impugned concurrent orders focused the compactness of wandas and the potential/ worth/location of the block awarded to the sharers. This Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot go deep into factual controversy requiring the evidence, whereas on its face value neither impugned orders are coram non judice nor ultra vires rather were passed while keeping in mind the afore-noted parameters in dividing the property to the right holders as per their shares. Thus no case of interference with the impugned orders is made out, therefore, this petition being meritless is dismissed in limine. In the case of the Muhammad Ayaz v. Superintendent District Jail, Timergara District Lower Dir and 3 others, reported in PLD 2018 Peshawar 01 it was held that:- "In view of the 'ratio decidendi' laid down in the above judgments of the apex Court, it is clear that controversies, which are based on contentious disputed fact, should not be entertained and adjudicated in constitutional jurisdiction. Accordingly, the contention of the worthy counsel for the petitioner will not be considered while deciding the instant petition." Similar view was also adopted in the judgments reported in PLD 2015 Supreme Court (AJ&K) 7 and 2021 MLD 1106 [Sindh].

9. After considering the entire record and in view of the rulings relied upon above, no case for interference through writ jurisdiction is made out hence this petition stands dismissed. MQ/53/P Petition dismissed.