P L D (Rev (PLP)

NASIR AHMAD, F. C.‑This case relates to partition of a part of the common village shamilat land measuring 2814 Kanals 1 Marla comprised in Khewat No. 314 as entered in the Jama bandi of village Hassan Abdal district Attock for the year 1944‑

45. The particular holding in dispute is Khasra No. 3900/3048 and is entered as ghair mumkin pahar in the revenue records. An objection was taken by Ghulam Farid etc. during the preliminary stages on the strength of this entry that ghair mumkin pahar area was not liable to partition in accordance with shart wajib‑ul‑arz of the village. The respondents, Sardar Muhammad Ashraf etc. who had made the original application for partition contended that the entry in the shart wajib‑ul‑arz of the village, on which reliance was placed related to the second settlement and had not continued in the third settlement. Besides the condition of impartibility related only to Mufidi Am lands. The land in dispute is on lease with the Wah Stone and Lime Quarrying Company Ltd. and as contained in the list attached to the Jamabandi cannot be termed as Mufidi Am land which has been defined to include village grave‑yard, pond etc. The Assistant Collector nevertheless seems to have accepted these objections and declined to grant the application under section 115 of the Land Revenue Act. The Collector accepted the appeal and the main reason which prompted him to this decision was that the suit of the petitioners for a share in the profits of the land which had gone up to the High Court in a Letter's Patent Appeal No. 123 of 1943 was held to be untenable ; further that their only remedy lay in the partition of the joint property: On second appeal the Commissioner agreed with the decision of the Collector. It has been argued before me that the statement made by the present petitioners before the Tehsildar that the property was not liable to partition amounted to raising a question of title under section 117 of the Land Revenue Act, and Revenue Officers, therefore, were not competent to proceed without first either determining the question of title them selves or getting it settled by a Civil Court. This principle is correct but it does not seem to apply at this stage. The original order passed by the Revenue Officer purports to be under section 115 of the Act and there is clear distinction in cases covered by section 115 and those which are covered by section

117. In brief it is this : that the former section relates to a question as to the property to be divided and not to a question of title in the property sought to be divided which is dealt with 'under section

117. It may broadly be said that a question whether a certain prior agreement (shart wajib‑ul‑arz is an agreement 'between co‑sharers) to keep their property joint is still operative or has ceased to be so is essentially one of title involving a determination of the civil rights of parties and would be triable by a Civil Court or by a Revenue Officer sitting as a Civil Court under section 117 of the Act, but seeking a declaration that the Revenue Officer as such can all the same for good and suffi cient cause disallow partition under section

115. The original decision has been given under section 115 of the Land Revenue Act and in view of the fact that the Assistant Collector relied on an entry of the second settlement which has not been' repeated in the subsequent settlement the justification for delaying partition on this score did hardly exist. As a matter of fact it has been repeatedly held that entry regarding an agreement in wajib‑ul‑arz holds good during the period of the settlement in which it is made and becomes inoperative when the settlement has come to an end. The second contention that partial partition of the shamilat is not tenable also does not seem to me to hold good‑as a partition of particular holding (khewat) can be effected. There are separate and different khewats of the shamilat and application in respect of everyone of them can be made without any legal objection. There is further one strong reason for allowing partition which has been mentioned both by the Collector and the learned Commissioner, namely that if the partition is not allowed there would hardly be any remedy left to the respondents to seek their share in the profits which accrue to the share‑holders in the common land of the village. This particular holding has been leased out at a very handsome rate of‑rent and all attempts of the petitioners to get a share to which they are obviously entitled have so far failed. As a result I would reject this petition and direct that the partition of the land in dispute may proceed. A. H. Petition rejected.