2016 PLP 1346 (MLD)

WAHEED AKHTAR ANSARI, MEMBER (JUDICIAL-III).

This revision petition has been filed against order dated 18.06.2003, passed by learned Executive District Officer (Revenue), Toba Tek Singh, whereby revision petition of the present petitioners was dismissed.

2. Arguments heard and record perused.

3. Learned counsel for the petitioners argued that during partition proceedings, the petitioners were condemned unheard, which is against the well settled principle of law. Through the impugned partition of land of joint khata, valuable rights of the petitioners were infringed. Previous possessions, entitlement of the parties, classification of land, means of irrigation, paths etc. were to be given due respect. But, it was not done by the revenue field staff while finalizing the partition of land of joint khata. In the partition application, all the co-sharers were not made party. Moreover, Muhammad Latif and Farzand Ali were arrayed as party in spite of the fact that they had died. Therefore, the partition application was not maintainable being defective. Better quality land previously possessed by them was included in the wanda of respondents without any lawful justification. The petitioners were technically knocked out by learned District Officer (Revenue), Toba Tek Singh while dismissing their appeal. Learned Executive District Officer (Revenue), T.T. Singh also ignored this fact of the case while passing the impugned order dated 18.06.2003. The impugned orders were passed without consultation of record and appreciating contention of the petitioners. Lastly, it was prayed that the revision petition may be accepted.

4. The respondents did not turn up despite observation of lawful requirements for process service including proclamation in the daily newspaper. Therefore, they were proceeded ex-parte.

5. I have considered the arguments advanced by learned counsel for the petitioners and also gone through record of the case. Brief of the matter is that Muhammad Ramzan etc. present respondents submitted application before Tehsildar AC-I, Gojra for partition of land of joint khata, who partitioned the land of joint khata vide his order dated 01.08.1996 and framed wandajat of the parties accordingly. Feeling aggrieved by that order, the present petitioners filed an appeal before learned District Officer (Revenue), Toba Tek Singh with a delay of about three years, which was dismissed vide order dated 06.01.2003. The last para of the order reads as under:-- "After perusing the record and hearing the arguments I have come to the conclusion that merits of the case apart the appeal is badly time barred. The factum of minority of the 4 to 25 appellants at the time of the award is a flimsy defence for saving this appeal from being hit by the provision of the Limitation Act. The spirit of the case law submitted by the counsel for the appellants can hold water only in such cases wherein such minors are the main appellants who could not indulge in litigation due to their tender years. In the instant case 21 appellants are trying to hide behind four minors for soliciting condonation for the three years of a veritable stupor. Request of the counsel for the condonation of the three years delay is therefore rejected and the appeal is dismissed as being badly time barred.

6. Feeling aggrieved by the order, the present petitioners filed revision petition in the court of learned Executive District Officer (Revenue), Toba Tek Singh, which was dismissed vide order dated 18.06.2003: The operative para of the order reads as under:-- After hearing the arguments advanced by the learned counsel for the parties and going through the impugned order of the lower courts, it can safely he held that the Tehsildar Gojra vide his order dated 1.8.1996 separated the holdings in joint khatas quite in accordance with provisions of law as envisaged in the Punjab Land Revenue Act, 1967 and keeping in view all the essential ingredients of the partition as well as and characteristics of the land. The order of the trial court has also been implemented in the revenue record and the possession have since changed by the parties in pursuance of this order of the trial court. None from the minors ever raised even a finger against the order till today. Therefore, contentions of the learned counsel for the petitioners carry no weight that the order passed in a suit is a nullity in the eyes of law passed in absentia of an appointed guardian of the minors. His contention, if perused seems to have been based on surmises and conjectures as there is no reliable material on record which may show that lower courts order were not acceptable, to minor defendants as they raised no objection on the partition ordered by the trial court and even till date they seem to have accepted the same. In view of the above reasons, I hold that the impugned orders of the lower courts dated 1.8.1996 and 6.1.2003 do not suffer from any legal infirmity. The Revision Petition is, therefore, dismissed being devoid of merits. The record of the lower courts along with a copy of the order be sent to the concerned authority".

7. During proceedings of instant revision petition, it appeared that the present petitioners have filed a Writ Petition No.942/2006 titled Younis Ali v. Additional District Judge Gojra etc., 2006 before Hon'able Lahore High Court, Lahore, whereby order passed by learned Additional District Judge regarding title of impugned property against the present petitioners. In view of such situation, the instant revision petition was adjourned sine-die vide order dated 27.04.2007. Hon'able Lahore High Court Lahore, passed an order dated 23.05.2014 with following observation:-- "In view of the matter, the learned Member, Board of Revenue (Judicial-III) is directed to decide the revision petition within a period of two months from the receipt of order of this Court and after the decision of revision petition filed by present petitioners, writ petitions shall be fixed for adjudication. Adjourned.

8. Consequently, the revision petition was taken up. During pendency of revision petition another order dated 25.06.2015 was passed by Hon'ble Lahore High Court, which is reproduced as under:-- "In view of above, learned Addl. A.G is directed to contact with the learned Member Board of Revenue (Judl-III) Punjab, Lahore and to make him a request to decide the petitioner's petition on the next date of hearing. He shall also place on record copy of the order to be passed by the learned Member Board of Revenue (Judl-III), Punjab, Lahore before the next date of hearing". Relist on 22.07.2015".

9. The main contention of the petitioners is that Tehsildar Gojra while passing the order of partition of impugned land denied opportunity of hearing to the petitioners. Further, the right of two minors have been jeopardized while passing such order. He further contended that the area under possession of the petitioners have been given to the respondents and more valuable land disproportionate to the entitlement of the respondents have been given to them through impugned partition.

10. As far as contention regarding opportunity of hearing is concerned this has become merely a technical plea as the matter is in litigation before various forums of law for the last 20 years and at each forum the petitioner have availed the opportunity of hearing and lost their case at each forum. Such sort of plea is not to be encouraged, as the same are against the spirit of disbursement of substantial justice. Reliance is placed upon PLD 2015 Supreme Court 15, which reads as under:-- Hardship case

Substantial justice by court

Technicality of law

For doing substantial justice in the true sense in a hardship case, technicality of law and rule shall not operate as an absolute bar in the way of the court because giving preference to the technicality of law would defeat substantial justice.

11. Regarding minors, of course with the time they have attained the age of majority, have never assailed the impugned partition. So, such contention is again worthless. Thirdly, the petitioners are contending that area falling under their possession has been given to the respondents is quite astonishing, as the petitioners during argument themselves admitted that the respondents were not in possession of even an inch of impugned land and all the impugned land was in possession of the petitioners. If this contention of the petitioners is accepted, the respondent would remain landless for all times. Because in any partition, the possession of the petitioners would disturb as they are enjoying possession of whole of the impugned land. So, it is established that the petitioners are in excess possession than their entitlement, refusing the right of harvesting the benefits to the respondents of their entitlement and want to continue with such robbery. The last plea regarding valuable land is very much explained against their contention, perhaps unknowingly by the petitioners themselves, when they submitted the site maps showing the possession of the impugned property before and after partition. Such maps abundantly clarify the position that no in-justice has been inflicted upon the parties through impugned partition as everybody has been accommodated in propionate to his entitlement while dividing the land falling on main road among the parties. Further the impugned partition has already been implemented both the in revenue record and on ground as well, back in year 2006 and new owners have entered through purchases. So, any change in partition at this stage may cause the parties to be victim of another long unnecessary and miserable round of litigation, which is not permissible in any circumstances. 12. in the light of above, the impugned orders dated 18.06.2003 passed by learned Executive District Officer (Revenue), Toba Tek Singh and order dated 06.01.2013 passed by learned District Officer (Revenue), Toba Tek Singh are upheld. HBT/22/Rev. Petition dismissed.