2021 PLP 154 (MLD)

IKRAMULLAH KHAN, J.

Through the instant writ petition, petitioner has questioned the legality and validity of impugned judgments, rendered by respondents Nos. 1 to 4, whereby not only the application of petitioner filed under section 141 of the Land Revenue Act, before respondent No.4 was dismissed but also the appeals and revision petitions filed before respondents Nos. 1 to 3 were dismissed.

2. In essence, respondent No.5 filed an application in term of Section 135 of the Land Revenue Act for partition of the land, well mentioned therein the said application, against the petitioner and rest of the private respondents. Petitioner filed an application before the respondent No.4 for dismissal of the said partition application on the ground that petitioner had instituted a declaratory suit against some of the private respondents and till the disposal of the suit the partition proceeding could not be carried on in view of Section 141 of the Land Revenue Act. The said application was dismissed by respondent No.4 while, the appeals and revision petitions, filed by petitioner against the impugned judgment of respondent No.4 were also dismissed by respondents Nos. 1 to 03 accordingly, hence the instant writ petition.

3. I have heard learned counsel for the parties and have gone through the record.

4. The revenue papers annexed herewith the instant petition reveal that the joint land under partition is comprised of 45 kanal and 5 marla. While the respondent No.5 namely Dar Ayaz is shown to be owner to the extent of 2 kanal, as per report of the Ajar/Revenue official. Respondent No.5 had applied only for separation of his recorded shares, which has not made disputed in any competent Court of law by any party herein.

5. Petitioner had no doubt instituted suit against some of the private respondents claiming to be owners of their shares, allegedly purchased by him through unregistered deed, but petitioner had not asked for any relief against the respondent No.5 in regard to his recorded shares. Therefore, the petition of petitioner before the Revenue Authorities in order to postpone the partition proceeding was not maintainable, hence, rightly dismissed by respondents Nos. 1 to 4.

6. During course of argument, learned counsel for respondents apprised the Court and placed on record judgment of learned Civil Judge Takht Bai, Mardan that suit of the petitioner had already been dismissed as well as the appeals vide their respective judgments dated 15.11.2017 and 23.12.2019. Irrespective of the fact that the suit instituted by the petitioner is dismissed, otherwise as mentioned hereinabove the shares of contesting respondent No.5 has not been made disputed by the petitioner in any competent Court of law, therefore, the partition proceeding could not be postponed that other shares of some of the respondents are under litigation before a Civil Court.

7. The provisions contained in Section 141 of the Land Revenue Act, is misconceived by learned counsel for petitioner, which read as: "S.141. Disposal of questions as to title in the property to be divided. (1). When there is a question as to title in any property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court. (2). Where the Revenue Officer does not himself proceed to determine the question of title as a civil Court, he may, for reasons to be recorded by him in this behalf, require a party specified by him to file a suit in a civil Court, within such period not exceeding ninety days from the date of his order as he may fix, for obtaining a decision regarding the question. (3). On the filing of a civil suit by the party required so to do within the specified period, the Revenue Officer shall suspend further action on the application for partition till the said civil suit is decided by the Court and a copy of the Court's order is produced before him." (4). In case the party so required fails to file a suit within the specified period, the Revenue Officer may proceed with the partition and decide the question of title himself. (5). Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply, namely:- (a) If the question is one over, which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as a Revenue Court under the law for the time being in force. (b) If the question is one over which a Civil Court has jurisdiction, the procedure of Revenue Officer shall be that applicable to the trial of an original suit by a civil Court and he shall recall a judgment and a decree containing the particulars required by the Code of Civil Procedure, 1908 (Act V of 1908), to be specified therein. (c) An appeal shall lie from the decree of the Revenue Officer under clause (b) as though that decree were a decree of a civil Judge in an original suit. (d) Upon such an appeal being made, the District Court or the High Court as the case may be, may issue an injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal. (e) From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court, if such furtherappeal is allowed by the law for the time being in force. The above mentioned provisions of law command that if the ownership of the party seeking partition is disputed and the Revenue Officer concerned could not decide the dispute, being intricate question of right, then Revenue Officer shall direct the parties to approach the competent Court for resolution of the dispute but mere institution of a suit by any of the parties on their own option could not restrict the Revenue Officer to proceed in the matter of partition of a jointly held land.

8. Therefore, this writ petition being meritless is dismissed accordingly and the Revenue Officers below are directed to complete the proceeding of partition, if not already completed expeditiously as soon as possible but not later than 6 months. ZC/231/P Petition dismissed.