P L D 2020 Peshawar 101 (PLP)

AHMAD ALI, J.

The petitioners through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have called in question the vires of Orders dated 30.01.2018, 20.04.2014 and 28.05.2013 passed by respondents Nos.1 to 3 respectively, whereby directions were issued to lower revenue staff to conduct partition proceedings in all the six partition cases simultaneously.

2. A long and short of the present petition is that the petitioners filed six applications for the partition of Khasra Nos.946, 989, 2400, 2401, 2396, 2399 and 1160. Partition proceedings were conducted and after deriving the mode of partition in all the Khasras except Khasra No.2401, the case files were sent to the Patwari for further proceedings. However, Patwari Halqa expressed his inability to conduct proceedings in respect of the Khasra No.2401 due to snowfall and as such, vide order dated 17.01.2013 the Additional Assistant Commissioner-II, Mansehra, issued direction to complete the process in rest of the Khasras excluding Khasra No.2401 and thereby the partition application No.120/DDO regarding Khasra No.2401 was kept pending and adjourned sine die till the end of snowfall. However, in an appeal by respondents, the Additional Deputy Commissioner Mansehra vide order dated 28.05.2013 set aside the order dated 17.01.2013 and directed to conduct partition proceedings in all the six partition applications simultaneously. Petitioners then filed an appeal before the Additional Commissioner Mansehra which was dismissed vide order dated 29.04.2014, and thereafter, their revision petition was also dismissed by the Member-I Board of Revenue vide order dated 30-01-2018. Now petitioners preferred this constitutional petition to restore the order dated 17.01.2013 of the lower revenue forum and to set aside the order dated 30.01.2018, 20.04.2014 and 28.05.2013 of all the superior revenue forums.

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

4. The record transpired that the partition application No.120/DDO regarding partition of Khasra No.2401 was adjourned sine die vide order dated 17.01.2013 till the end of snowfall, whereas, rest of the proceedings in the connected partition applications pertaining to other joint Khasras were directed to be carried out. As all the parties were joint owners in all the Khasra numbers under partition, therefore, no proper partition could be conducted by the exclusion of Khasra No.2401. The Addl. Assistant Commissioner-II (AAC-II) Mansehra instead of processing all the cases jointly divided the partition proceedings in two parts; and thereby it becomes impossible to partition the land in accordance with the kind of land and proportionate share of each joint owner. Therefore, it was required to keep all the petitions pending till the end of snowfall and then to proceed ahead with the same. Instead, the AAC-II in a slipshod manner excluded Khasra No.2401 from partition with rest of the Khasras. It is very unfortunate that the petitioners, who are having possession over the Khasra No.2401, succeeded in lingering-on the proceedings over a period of seven years, then what to say about the duration of snowfall which ended much before in the year 2013.

5. Partial partition cannot be allowed and the entire properties owned by the parties should be included in the partition to safeguard all the co-owners from being discriminated and thus the entire corpus is placed in a common pool for the Court to ensure that each co-owner is allotted his share equitably depending on the value thereof, which would surely be dependent upon the area, location and the nature of the property. Reliance in this regard is placed on the case titled, Ghulam Rasool and another v. Muhammad Khalid and 2 others (2006 YLR 2289) wherein it was held: A part of Khewat No.268 bearing Khasra No.838 is sought to be partitioned through suit in hand, but this course is not permissible under law. In a similar situation, matter came up for consideration before a Division Bench of this Court in the case of Chandi Shah v. Bahara Shaba and others (AIR 1930 Lahore 286(1)) and it was held that suit for partial partition should be dismissed. In another matter Honourable Supreme Court of this country in the case of Jan Muhammad and another v. Abdur Rashid and 5 others (1993 SCMR 1463), it was mandated that entire joint holding should be put to partition and part thereof which are not partitionable or under heavy constructions, other co-sharers can be compensated by way of money and it was so held on the principle that possession of one co-sharer in law is possession of all the co-owners. Identical view was taken by an Honourable Division Bench from Karachi jurisdiction in the case of Ghazi Qaiser Pervaiz and another v. Ghazi Faisal Pervaiz and another (2000 CLC 519). Refusal to partition a part of joint holding, has wisdom behind it because some parts of the joint holding may be of much more value, as compared to its other parts. Party opting to come for partition, should not be permitted to pick and choose and to have share in valuable parts of the joint holdings by leaving out its parts with lesser value. Each owner is owner of every inch of joint holding to the extent of his share and thus I am of the considered view that a part of the joint holdings cannot be permitted to be partitioned, leaving out major parts thereof, as joint.

6. This Court adopted the said view in the case of Muhammad Ayaz (PLD 2016 Peshawar 8). Besides, this Court in Syed Azhar Hussain Shah's case (2016 YLR 1489) held: "Partial partition should not be allowed and the entire properties owned by the parties shall be included in the application irrespective of the possession of properties."

7. In view of the foregoing there is no illegality, irregularity or perversity in the impugned orders which are as such maintained. The learned counsel for petitioners was unable to point out any jurisdictional error in the impugned orders calling for interference by this Court in exercise of its extraordinary constitutional jurisdiction. Accordingly, the partition proceedings so conducted in the exclusion of Khasra No.2401 are declared as null and void. The AAC/lower revenue forum is however, directed to depute a Tehsildar or Naib Tehsildar to derive a fresh mode of partition in respect of all the Khasra numbers; and then the fate of all the partition applications shall be decided simultaneously but not later than six months.

8. For what has been discussed and observed above, there is no merit in this Writ Petition which is thus dismissed. ZC/170/P Petition dismissed.