P L D 1962 W (PLP)

(b) Punjab Land Revenue Act (XVII of 1887), S. 16-- Revision‑Power not limited. The respondents Momin Khan and others applied to the Assistant Collector 1st Grade for partition of the land in dispute which is situated in village Tungi, District Peshawar. Before the partition proceedings could conclude Muhammad Ajmal Khan etc., the petitioners preferred an appeal to the Collector in which two main issues were raised. Firstly: that the petitioners had raised a question of title namely the existence of a private partition between the parties. Further that as a result of this private partition the various share‑holders had dealt with the land falling to their shares as if it were their exclusive property. Secondly: that the parties held several other joint holdings which had been taken into account in this family partition. Thus unless the entire property were pooled together the matter in issue, i.e., the partition could not be determined justly. The Collector accepted the appeal and directed that the Assistant Collector should proceed in accordance with the provisions of section 117 of the Land Revenue Act and determine the question of title raised, i.e., the alleged private partition of all the joint holdings of the parties before proceeding further. He accordingly remanded the case. The learned Additional Commissioner, however, intervened in revision. Somehow it escaped his notice that a question of title had been raised and the mendatory provisions of section 117 of the Land Revenue Act had to be followed. He merely held that it was not necessary that all the joint holdings of the parties should be dealt with together and a partition of one of their joint holdings could proceed independently of others. He accordingly set aside the order of the Collector and directed the partition proceedings to continue. Muhammad Ajmal Khan and others have now come up in second appeal. A preliminary objection has been taken by the respondents namely ; that under the provisions of section 13 of the Land Revenue Act a second appeal is not competent In this case. Mr. Pir Bakhsh the learned counsel for the petitioners has requested that in the particular circumstances of this case the appeal may be treated a revision and I have accepted this request for the reasons which follow. It is contended on behalf of the respondents that the provi sions of section 116 of the Land Revenue Act give some discretion to the Revenue Officer to decide whether a question of title is in fact Involved or not; so that according to the learned counsel for the respondents if the question of title raised seems prima facie frivolous on the strength of the revenue record, the Revenue Officer need not comply with the provisions of section 117 and may proceed with the partition. This view is contrary to what has without exception been accepted as the correct procedure in partition proceedings. It has been laid down by the Financial Commissioners and by the Board of Revenue that even if a question of title, when raised, is prima facie untenable, it shall not be decided by the Revenue Officer as such unless he constitutes himself into a Civil Court. The main reason why the law makes it incumbent to follow this procedure is that the proceedings of Revenue Officer (Partition proceedings are a Revenue Officer's case) are summary in character and no statutary law or rules lay down how these proceedings are to be conducted. A question of title in property is of such importance as to warrant a decision in accordance with the procedure laid down by the C. P. C. so that the parties have an opportunity to lead evidence in accordance with the Evidence Act, cross examine witness etc. etc. It is really in the interest of the parties themselves that a question of title should not be decided in the summary manner which is followed by Revenue Officers and the parties should get the maximum opportunity permissible under the civil law of the land to state and prove their case. In this particular case the question of a private partition had definitely been raised. It had also been stated that this private partition embraced all the joint holdings of the parties and as a result of this private partition the parties had dealt with the land which fell to their share as their exclusive property that is sold, mortgaged or gifted it away etc. etc. This was not a frivolous plea and it was incumbent on the Revenue Officer either to constitute himself into a Civil Court and determine this question of title or decline to grant the partition until the matter in issue had been determined by a competent Civil Court. The powers of interference in revision are not limited by the Land Revenue Act, but even following the provisions of section 115 of the C. P. C. the Revenue Officer below have exer cised jurisdiction which did not vest in them. It is just a case of this kind in which interference in revision is in fact required. I would accordingly accept this petition, set aside the order passed by the learned Additional Commissioner and restore that of the Collector, i.e., that the Assistant Collector should determine the question of title before proceeding with the partition. S. B. Petition accepted.