P L D (PLP)

Other Respondents: Ex parte. This is a revision filed against an order dated the 18th of December 1963, passed by Additional Commissioner, D. I. Khan, whereby the appeal preferred by the petitioner was dismissed. The facts of the case are that one Shahzad, a co‑sharer, along with respondent No. 1 and others, absconded. His land was auctioned and the petitioner purchased it. Subsequently he applied for the partition of his share and the Tahsildar Bannu proposed a mode of partition whereby the petitioner got 57 kanals and 7 marlas excluding 19 kanals and 5 marlas of cultivated area which was taken from the possession of Mir Muhammad Khan respondent No. 1 and given to the petitioner. The Revenue Assistant sanctioned the mode of partition on the 30th of October 1958. Mir Muhammad Khan went in appeal to the Collector who remanded the case on 2‑6‑1959 on the ground that the partition was against the provisions of Martial Law Regulation No.

64. The case was again sent up to the Tahsildar for suggesting a fresh mode of partition. He made proposals .on the 10th of March 1961, and the Revenue Assistant approved his recommenda tions on 27‑12‑1961. There was only a slight amemdment to the effect that 4 kanals and 19 marlas of land under path and watercourses was excluded from the partition. Mir Muhammad Khan went in appeal to the Collector who accepted the appeal and remanded the case. The petitioner went in appeal to the Additional Commissioner but the appeal was rejected. Hence this revision. I have heard the learned counsel for the parties and have examined the record. There are 51 co‑sharers and only Dr. Sar Anjam Khan who has stepped into the shoes of Shahzad, has applied for partition of his share. The problem will, therefore, be solved if only the share of the petitioner is separated and the rest of the land is allowed to remain as joint. In doing so, two questions will arise namely‑ (a) whether the land in dispute comparising 19 kanals and 5 marlas can be given to the petitioner after withdrawing it from respondent No. 1 ? and (b) whether the partition would be permissible under M. L. Regulation No. 64? So far as the first point is concerned, it is established that the land in dispute comprising of 19 kanals and 5 marlas was originally in the possession of Shahzad. After he absconded, Mir Muhammad Khan respondent No. 1 took over its possession and has been cultivating since. The land belonged to Shahzad and, during partition proceedings, Mir Muhammad Khan cannot claim to retain it, specially when the land in dispute was less than the share of Shahzad in the joint khata. The learned counsel for Mir Muhammad Khan has raised the question of improvement. This consideration is, however, offset by the fact that Mir Muhammad Khan has been enjoying the profit from this land without making any payment to anybody. He cannot, therefore, claim any compensation for improvements, if any, were made at all. So far as the provisions of M. L. Regulation No. 64 are concerned, it is a common ground that the petitioner owns in this very village 51 kanals. After partition, he will get 57 kanals and 7 marlas. The total area will be 108 kanals 7 marlas which will be more than a subsistence holding. This case is covered by sub‑para. 3 (i) of para. 215 (page 164) of Land Reforms in West Pakistan, Volume

1. It is, therefore, clear that, if the petitioner's share is separated from the joint khata, such partition will not be against the provisions of M. L. Regulation No.

64. In these circumstances, I accept the revision, set aside the orders passed by the learned Commissioner and the learned Collector and direct as follows:‑ (a) Only the share of the petitioner will be separated from the joint khata. The rest of the khata will remain undivided; and (b) during partition proceedings, the petitioner will be given the area in dispute measuring 19 kanals and 5 marlas which originally belonged to Shahzad, along with such other area as will make up a total of 57 kanals and 7 marlas. A. H. Order accordingly.