1990 PLP 1965 (CLC)

PLD 1985 SC 208; PLD 1975 Lah. 228; PLD 1989 Rev. 14 and 1987 SCMR 197 ref. Ch. Subhan Khan for Petitioner. Sh. Hamecd Asghar for Respondents. This revision petition has been filed under section 13 of the Consolidation of Holdings Ordinance, 1960, against the order dated 17‑9‑1988 of the Additional Commissioner (Consolidation), Gujranwala whereby he accepted the revision of the respondents.

2. Brief facts of the case are that the Consolidation Scheme of the revenue estate Sheikhpur, Tehsil Shakargarh, District Sialkot was confirmed under section 10(3) of the Consolidation of Holdings Ordinance, 1960 on 28‑6‑1986. The present respondents feeling aggrieved filed an appeal with a delay of 11 months and 28 days in the Court of the Collector (Consolidation) who vide his order dated 9‑5‑1988 rejected the same. He held in his order that the respondents received land during the consolidation operations after partitioning the khata, in separate scheme with their consent. The respondents thereupon went in revision before the Additional Commissioner (Consolidation) who accepted the same holding in the impugned order that the respondents did not present any application for the partitioning of joint khata. As the joint khata was divided without consent of all co‑sharers, he made the Khata joint again. Hence this revision petition.

3. It has been argued by the learned counsel for the petitioner that the joint khata was partitioned with the consent of the parties during the consolidation operations and possessions were amicably changed. The change of possession was also duly reflected in the record and the respondents had got their area in one compact block. It was maintained that the Martial Law Regulations regarding partition of holdings was not applicable to the partitioning of joint Khatas in the consolidation operations. Moreover, the respondents had chosen to prefer an appeal after 18 months after going back on their earlier agreement. In this period they had also obtained one‑third share of the price of the tubewell installed in the petitioner's `wanda'. It has further been averred that the respondents had not objected to the partitioning of Khata No. 4 which was also a joint holding and therefore how can they object to Khata No. 3 which was similarly a joint holding.

4. The learned counsel for the respondents contended that the parties were real brothers and they were co‑sharers in 2 Khatas in the village. However, consent of all the co‑sharers was necessary for partitioning of a joint Khata which was not obtained in the instant case. Therefore, partitioning of the joint Khata was void ab initio. It was denied that the respondents had ever agreed to the partitioning or received any compensation for the tubewell falling in the share of the petitioner. It has further been pointed out that the revision filed by the respondents before the Commissioner which led to the impugned order was not hit by limitation because, as held in PLD 1985 SC 208, there was no limitation in Consolidation matters before the Commissioner in revision.

5. The Patwari is present with record which has been examined by me. Khata No. 3 consists of proprietary holdings of the parties whereas Khata No. 4 consists of Shamlat Dch. On the partitioning of the Khata No. 3 in thr. Consolidation Scheme, thumb‑impressions of Ghulam Ali, Barkat Ali and Ghulam Rasool can be seen and are not denied. However, there is no specific written application for the partitioning of the joint Khata of the three brothers. It is evident that a joint Khata was divided during the consolidation operations, ignoring the mandatory instructions that a joint Khata can be partitioned only with the consent of all the share‑holders subject to certain exceptions. This case is not covered by any exception and therefore the mandatory provisions of instructions have been violated. There is ample case‑law on this point to the effect that violation of even one condition vitiates the proceedings, such as PLD 1975 Lah. 228; PLD 1989 Rev. 14; 1987 SCMR

197. I, therefore, do not see any force in the revision petition which is dismissed and the impugned order is upheld. H.B.T./348/R Petition dismissed.