P L D 1975 Lahore 228 (PLP)

The petitioners are joint owners with respondent No. 1 in khatas Nos. 8 ?5 and 1398 in village Mananwala, District Sheikhupura. While respon dent No. 1 owns no land in the village except in those two khatas. petitioners Nos. 1, 2 and 3 are owners of khata No. 838 and peti tioners Nos. l to 5 are joint owners with their mother in khata No.

837. In the course of the consolidation proceedings in the village respondent No. 1 sought to have his share in khatas Nos. 835 and 1398 (which amounts to one-third of the total) separated by partition. The Assistant Consolidation Officer refused to partition the khatas in question for the sake of respondent No.

1. Thereupon, respondent No. 1 appealed to the Collector. But the appeal was dismissed on the 3rd of October 1969. Then he preferred a revision petition in the Court of the Additional Commissioner (Consolidation) but failed again as the petition was dismissed on the 26th of May 1971. Undaunted by these failures, respondent No. 1 approached the Board of Revenue with another revision petition which was heard by the learned Member (Consolidation). The learned Member allowed the revision petition on the 31st of December 1973 and exercising his authority purportedly under para. 14 (incorrectly referred to as 14(b) of the Urdu Instructions issued by the Board of Revenue in December 1965, directed that the Khatas in question be partitioned and the share of respondent No. 1 he separated. Hence this writ petition in which the petitioners challenge the authority of the learned Member to direct partition in the course of the consolidation proceedings.

2. The learned counsel for the petitioners contends that clause of instruction No. 14 of the Urdu Instructions has been misinterpreted. According to him, the request of respondent No. 1 could be acceded to only in case he had a separate exclusive khata in the village. The learned counsel for respondent No. 1, however, argues that the petitioners having two khatas in the village in which respondent No. 1 is not a co-sharer, their shares in khatas Nos. 835 and 1398 could be lawfully separated by partition under clause of the Instruction No. 14.

3. Under the revenue law, it is within the exclusive jurisdiction of the Revenue Courts to partition joint khatns. As an exception, however, it has been provided in the instructions referred to above that where all the co-sharers agree, joint khatas can be partitioned by the consolidation authorities during consolidation. But where all the co-sharers do not agree to partition, certain conditions have been laid down which must be satisfied before partition is resorted to for the purposes of consolidation. It will be of advantage to reproduce the relevant instruction which reads as under :- The import of this instruction is clear. It means that if one of the co-sharers in a joint khata wants the partition of the said khata against the will of the others, he can have it partitioned in case he has an exclusive khata of his own and thus get the share so separated from the joint khata consolidated with his exclusive khata provided there is no hitch. Further, such partition can be resorted to also in the interest of minor and widows, ignoring the objections of the other co-sharers, if the objections are based merely on selfish motives.

4. In the present case, respondent No. I is not a minor; and secondly, he hots no exclusive khata in the village with which he might consolidate his share in the joint khatas after having it separated there from. It is true that the petitioners have other khatas in the village but it is not they who are seeking the partition. , In my opinion, therefore, the learned Member, Board oi Revenue, had no authority under clause of Instruction No. 14 to direct partition of the khatas in question in the course of consolidation. Respondent No. 1 is however at liberty to apply for partition to the competent Revenue Court in the normal course.

5. For the foregoing reasons, I accept the writ petition, declare the impugned order dated 31st December 1973, of the learned Member (Con solidation), Board of Revenue, to be without lawful authority and' of no legal effect. The parties shall, however, bear their own costs. S. A.H. Petition accepted.