1999 SCMR 873 (PLP)

CH. MUHAMMAD ARIF, J.

A brief resume of the instant appeal through leave of this Court against the judgment of a Division Bench of the Peshawar High Court, Peshawar dismissing appellants' Constitution Petition bearing, Writ Petition No.302 of 1996 is that respondent No.5-Mehboob Ali Khan filed an application before respondent, Assistant Collector. 1st Grade Peshawar, hereinafter referred to as the A.C., under section 135 of the Land Revenue Act, 1967, hereinafter referred to as the Act, seeking partition of his share out of the joint property owned by him alongwith the other co-sharers. The service of process on the respondents in the said application was gone ahead through publication in the newspaper. Those who did not put in appearance, pursuant to the publication in the newspaper, were proceeded against ex parte. The Patwari Halqa produced the relevant record and after examining the same, the mode of partition was accepted and Mutation No. 15322 was got sanctioned on 5-7-1993.

2. The present appellants filed an application requesting for cancellation of the ex parte order dated 27-1-1992 on 11-8-1993. Their plea was that they had not been served in the partition proceedings. The respondent-A.C. dismissed this application on 28-2-1994 mainly with the observation that they were not able to prove that any prejudice or loss had been caused to them in the partition proceedings.

3. Appellants appealed against order of the A.C. before the respondent- Collector, Peshawar. The respondent-Collector accepted the appeal, set aside the order of the A.C. and remanded the matter with the direction that the appellants may be made party to the case in the interest or justice"

4. Respondent No.5-Mehboob Ali Khan successfully challenged the order of the respondent-Collector before the respondent-Additional Commissioner (Rev.) who, through his judgment dated 29-12-1994, accepted the appeal, set aside order of the learned Collector dated 8-5-1994 and restored that of the respondent-A.C. dated 5-7-1993.

5. The appellants remained unsuccessful in challenging the order of the respondent-Additional Commissioner, Peshawar before the respondent-Member Board of Revenue, hereinafter referred to as the B.O.R., who dismissed the Revision Petition on 6-11-1995 in the following terms: "I do not find any material irregularity or illegality in the impugned order and, therefore, decline to interfere with it. The revision petition fails and it is dismissed with no orders to the costs. "

6. Appellants' Constitution Petition bearing Writ Petition No.302 of 1996 was dismissed in limine as below: "

3. Mr. N.M. Khan, Advocate representing the petitioner at the outset submitted that he sticks to his earlier view that the present Bench is not legally constituted one because the elevation of one of its Member (Jawaid Nawaz Khan Gandapur, J.) has been declared invalid by the latest Supreme Court judgment in respect of elevation of superior Courts Judges. This Bench had earlier adjourned the case of the learned Advocate on account of the same objection, therefore, we expressed our willingness to adjourn this case also but he insisted on hearing of the case as, according to him it was in the interest of his client to have an order on the stay application. We are of the view that the Constitution of this Bench is not illegal as the time limit of one month given in the judgment for validating the elevation of the recently appointed Judges has not yet expired. On merits he confined his arguments only to illegality of the judgment of respondent No. l as according to him it was no judgment in the eye of law because it lacks discussion and reasons in support of the conclusion. It appears that he was oblivious of the fact that he has invoked the exceptional and extraordinary jurisdiction of this Court in writ petition against the controversy determined by Court of competent and exclusive jurisdiction and, therefore, besides dwelling on procedural technicalities or propriety he was required to show as to what loss has been caused to the petitioner by the partition proceedings conducted in competent forums and to make submission regarding the substance of controversy. It is not every procedural error which would vitiate the proceedings conducted by competent Court unless it is shown that substantial injustice has occasioned by such irregularity. The learned counsel did not argue as to what points were argued before the learned Member, Board of Revenue which he failed to answer in his judgment. It would not be sufficient for blaming a Court for its failure to deal with a particular point unless it is shown that the point was pressed before it. Although no argument was addressed on the merits of the controversy but we went of our own through the available record in order to find out as to how the petitioners have been prejudiced by the proceedings conducted by the competent forums. The perusal of the order of the original Court shows that the petitioners were given adjournments on 20-12-1993, 4-1-1994, 23-1-1994 and 12-2-1994 to enable them to show as to how much area they owned before the partition and how much is allotted to them in partition so as to find out as to what loss has been caused to them by the ex parte proceedings in partition matter. It was also observed in this order that the petitioners' Advocate was unable to show any loss to the petitioners by - these proceedings. Again the learned Additional Commissioner in his appellate order has observed 'the contention of the respondents' counsel that they have acquired right in the joint property by a mutation of sale but the same has been sanctioned in the cultivation column instead "Malkiyati" column, as there was ban on sale of land is without any substance or force. The respondent can claim remedy for such disputes in a regular Civil Court instead of making for relief from the Revenue Officer dealing with partition case under the Land Revenue Act'. It is the obvious that the respondent can redress their grievance in a competent Civil Court in case they feel that they have been deprived of their legitimate rights in the partition proceedings of the land owned by them. If the judgment of the learned Collector which is in favour of the petitioners is scrutinized on the criteria as agitated before us by the petitioners' Advocate to the effect that the judgment of respondent No. l containing no reason for decision should be set at naught then it would be obvious that the judgment of the Collector also suffers from this lacuna. As its perusal reveals that the Collector has also given no reason for conclusion arrived at by him but has simply reproduced the finding of the lower Court and the arguments of the Appellate Court and has given no reason as to how and on what basis he was inclined to agree with the submissions of the learned Advocate to remand the case. We are, therefore, of the view that in absence of any jurisdictional defect and also of the inability of the petitioners to show as to what injustice has been done to them by the impugned orders there is no justification for interference, in the impugned decisions. This writ petition is therefore, dismissed in limine.

7. Paras. 3 and 4 of Leave Grant Order dated 22-1-1997 read thus: "

3. The main ground on which the Courts below refused to interfere with the partition order, was that the petitioner is not one of the co -owners in the land and, therefore, no prejudice has been caused to him by the order of partition of land. "

4. The petitioner has produced before this Court the sale-deed and Jamabandis in respect of some of the survey numbers which were subject-matter of partition proceedings and on perusal of these documents, it appears prima facie, that the predecessor of the petitioner had interest in these survey numbers as owner. We, accordingly, grant leave to appeal, inter alia, to consider whether the finding of the Courts below that the petitioner was not a co-owner in the partitioned land and, therefore, no prejudice has been caused to him was justified in view of the sale-deed and entries in the jamabandies showing some of the survey numbers of partitioned land in the ownership of the predecessor of the petitioner(s). "

8. Hence, this appeal.

9. It appears that the main stay of the case of the appellants is that their predecessor-in-interest was shown as an owner of a part of the lands subject matter of the partition proceedings before the concerned Revenue Court. It was also pleaded in Civil Petition No. 168-P of 1996 that the learned Division Bench of the High Court was in error in not adverting to the grounds raised in the writ petition and grounds before respondent No. l/M.B.R.

10. Mr. Mian Muhammad Younis Shah, learned Senior Advocate Supreme Court appearing in support of this appeal, has objected to the mode of service on the joint-owners in the partition proceedings before the Collector/A. C. under the Land Revenue Act, 1967. According to him, the service of process being not supported by the provisions of law, the appellants have been condemned unheard. He has referred to Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6) to contend that the only course available to all concerned, including the learned Division Bench of the High Court, was to remit the case to the respondent-A.C. to finalise the same after keeping in view the right/s of the appellants in some of the disputed Khasra numbers. He was also critical of all the impugned judgments/orders against his clients which, according to him, are sans any support from the material available on the record.

11. Mr. K.G. Saber, learned Advocate Supreme Court appearing on behalf of respondents Nos.5, 39 and 167 has supported the impugned judgment of the High Court with the contentions that as the predecessor-in-interest of the appellants was not shown as owner regarding any one of the Khasra numbers in dispute and as he was shown in cultivating possession of some of the Khasra numbers in Jamabadi for the years 1987-88 and that too after purchasing the same from the then vendors, their remedy lies in proceedings against the then vendors.

12. We have considered the respective contentions raised by the learned counsel for the parties and have also been taken by them through the material available on the record.

13. There is no cavil with the proposition that the making of an order against a litigant without affording an opportunity of hearing to him cannot but be removed from the scene to give rise to the making of another according to law. However, a careful perusal of the record does indicate that the predecessor of the appellants was not shown as a owner of any part of the lands in question. The case of the appellants before the A.C. was duly attended to by the latter, as below: Learned counsel for the appellants was not in a position to controvert the details mentioned in the afore-quoted order dated 28-2-1994 and was content with submitting that if an opportunity had been granted to the appellants to bring on the record the material indicating the defects in the partition of lands between the parties before the Revenue Courts, they would have succeeded in having the partition proceedings set aside by the Revenue Court/s. We are not inclined to the view that the appellants had any interest in the partition-proceedings regarding the land in dispute. The learned Additional Commissioner was of the considered view that an application under section 135 of the Land Revenue Act could be filed only by a joint owner against the other joint-owners and that where there is no joint land no application for its partition is competent. Ass the present appellants were not possessed of the requisite locus, there is no need to determine whether the procedure of service was according to law or not. The contention of the respondents" counsel that they have acquired right in the joint property by a mutation of sale but the same has been sanctioned in the cultivation column instead of "Malkiati" column as there was ban on sale of land, is without any substance or force. The respondents cart claim remedy for such disputes in a regular Civil Court instead of asking for relief from the Revenue Officer dealing with a partition case

" It is not the case of the appellants that any one of the observations made by the respondent-A.C. or by the respondent-Additional Commissioner in their respective orders dated 28-2-1994 and 29-12-1994, suffers from any inaccuracy whatsoever.

14. Viewed in the perspective of the details/excerpts mentioned above the plea of the appellants that the learned Division Bench of the High Court was not quite right in dismissing their Constitution Petition in limine, does not inspire any confidence. To sustain a plea of the above nature the appellants have to show that the High Court was not possessed of the jurisdiction to uphold the decisions made by the hierarchy of Courts/Tribunals set up under the Land Revenue Act, 1967. The appellants had themselves moved the High Court with a view to seeking reversal of judgments passed by the Assistant Collector on 28-2-1994, the Additional Commissioner 'on 29-12-1994 and the B.O.R. on 6-11-1995. It was after considering in detail the orders impugned by the appellants before the High Court that the impugned judgment dated 16-4-1996 was passed by the High Court. In the absence of any jurisdictional error in the determination of the case before the respondent-authorities, the learned Division Bench of the High Court was within their jurisdiction to decline to interfere in the orders impugned before them. It was the overall effect of the orders made in the partition proceedings by the competent forum/s finding the same not to he open to arty exception in law that the appellants were non-suited with the observation that the appellants can have their grievance redressed in a competent Civil Court".

15. No other point was urged.

16. Resultantly, this appeal fails and is hereby dismissed with no order as to costs. M.B.A./R-29/S Appeal dismissed.