2016 PLP 550 (CLC)

NAYYAR MAHMOOD, MEMBER (JUDICIAL-VII).

Mst. Habib Khatoon and her children have filed the instant revision petition under section 164 of the Land Revenue Act, 1967 assailing upon an order dated 30.01.2015, passed by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal, whereby the revision petition of Muhammad Amin, respondent No.1 against the order of Additional District Collector, Pakpattan, dated 02.10.2014 was disposed of by allocating land to him according to his choice.

2. The matter pertains to partition of joint holding comprising Khewat No.1. Khatuni Nos.1 to 7, measuring 160k-lm, situated in Chak # 93/D, Tehsil and District Pakpattan. For partition, Muhammad Amin, respondent No.1 submitted an application to the Tehsildar/AC-I, Pakpattan. Vide order dated 12.06.2013, Naib Tehsildar Pakpattan divided the land in four Wandajaat. Muhammad Amin challenged the partition order in appeal, which was rejected by the Additional District Collector, Pakpattan on 02.10.2014. He filed revision Petition in the court of the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal, who disposed of the same vide impugned order dated 30.01.2015. Hence this revision petition.

3. Learned counsel for the petitioners argued that wandajaat were accepted by the Revenue Officer Halqa/AC-1, Pakpattan on 21.02.2013. Under Section 145 of the Land Revenue Act, 1967, Instrument of Partition (Sanad Taqseem) was also issued on 12.06.2013. In pursuance of the partition order, Mutation No.4605 was also sanctioned on 30.08.2013. Nobody has ever challenged the wandajaat dated 21.02.2013 and the said order has attained finality. Rather instrument of partition dated 12.06.2013 was challenged before the Additional District Collector, Pakpattan by Muhammad Amin, respondent No.1, who dismissed the same and upheld partition of impugned land. However, in revision, Additional Commissioner (Revenue), Sahiwal Division, Sahiwal allowed Muhammad Amin, respondent No.1 to choose his wanda and ordered that other co-sharers, if feel aggrieved, may apply for partition and Muhammad Amin share (chosen by hint) will remain intact. The lower court has not taken care of the rights of other co-sharers while passing the impugned order. The lower court has passed the impugned order just to favour Muhammad Amin and giving him as status of "Sacred Cow" is illegal and void. Respondent's contention that petitioners are taking benefit from the impugned land is baseless. Learned counsel prayed for acceptance of the revision petition.

4. On the other hand, learned counsel for the respondents argued that on 25.05.2012 he submitted application for partition to Tehsildar and then withdrew the same. The other party filed application for partition and obtained order of partition secretly. When respondent came to know about the same, he filed appeal. Before passing the impugned order, the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal visited the spot. The order of Additional District Collector, Pakpattan was ex parte. He prayed that the impugned order has rightly been passed which may be upheld and the instant revision petition may be dismissed.

5. Arguments considered and documents annexed with the case file including the impugned order minutely perused. Learned counsel for the respondent was asked to reply the following queries:-- (i) What was the reason to file appeal against the Instrument of Partition instead of partition order? Whether it is legally right? (ii) Whether possession is with respondent and if yes, then how the other party is enjoying possession for the last 18 months? And if possession is not with the respondent, he managed decision from the lower court in his favour through misrepresentation?

6. Instead of submitting replies to the above queries, learned counsel for the respondents preferred repetition of facts and to dismiss the revision petition. Cursory perusal of the impugned order reveals that lower court has placed 51k-8m land of respondent No.1 in one basket and all other co-sharers in the second basket. There was no justification to allow respondent No.1 to choose the land of his choice out of total holding measuring 160k-1m and refer the other co-sharers to file fresh application for partition, if they so desired. Such pick and choose in joint Khata has no justification. The lower court has made error in judgment not only by allocating specific land to respondent No.1 but also declared share of Muhammad Amin untouchable in case other co-sharers apply for partition. By doing so, the Additional Commissioner (Revenue). Sahiwal Division, Sahiwal awarded relief which was not even claimed. As such, the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal exceeded jurisdiction, misused authority and did not apply judicial mind, which is evident from the fact that issue before him was instrument of partition and not partition, which was never challenged. Such an order cannot be allowed to be maintained because it smacks fishy. Therefore, by accepting the instant revision petition, impugned order of Additional Commissioner (Revenue), Sahiwal Division, Sahiwal dated 30.01.2015 is set aside and order of partition and that of the Additional District Collector, Pakpattan passed in appeal of Muhammad Amin, respondent No.1 are upheld.

7. Inform S&GAD misconduct of the then Additional Commissioner (Revenue). Sahiwal Division, Sahiwal (Mr. Muhammad Aslant Chaudhry) for further necessary action under Punjab Employees Efficiency, discipline and Accountability Act, 2006.

8. Initially, after hearing arguments from both sides, judgment was reserved today, which was later on announced in the open court. HBT/3/Rev. Petition accepted.