Partition of land

2024 YLR 2820 PESHAWAR-HIGH-COURT Judicial Precedent

S. 7Civil Procedure Code (V of 1908), S.12 (2) & O.XXII, R.4Partition of landDeath of one of the partiesNon-impleading of legal heirs

Petitioners sought setting aside of order passed by revenue authorities regarding partition of land in question on the plea that one of the parties to partition proceedings died and his legal heirs were not impleaded

Validity

Non-impleading of legal heirs of one of the deceased respondents,under the provision of O.XXII, R.4 C.P.C., did not vitiate the proceedings or resultant orders

High Court declined to interfere in order passed by Board of Revenue dismissing revision petition filed by petitioners, as there was no illegality nor any violation of law in passing the order

Petitioners failed to point out any infirmity in orders passed by revenue hierarchy

Constitutional petition was dismissed in circumstances.

2024 MLD 61 PESHAWAR-HIGH-COURT Judicial Precedent

Rr. 3 & 10Partition of landPrincipleHousing schemePlotting of land

Petitioners were aggrieved of partition of land in question made by revenue authorities in favour of respondents/co-sharers

Validity

Factum of plotting, non-construction of any house over land under partition and report filed by Patwari made it clear that plotting had been done recently

Plotting of colony was without any proper legal authentication of concerned authority, and it could not place any legal bar on revenue authority to conduct partition of land to safeguard right of all co-sharers in each and every inch of joint land

One co-sharer was the protector of possession of all others and a co-sharer with symbolic possession even could safeguard his rights

High Court declined to interfere in the orders passed by revenue authorities as the same were self-contained and in accordance with law

Constitutional petition was dismissed, in circumstances.

2021 YLR 1901 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 135, 137 & 172Land Record Manual, para. 18.6Partition of landConsolidation of partition proceedingsPetitioners sought partition of their property in which respondents were proceeded ex-parte and partition was allowed

Revenue authorities declined to set aside ex-parte order but Board of Revenue accepted second revision of respondents and remanded the matter for decision afresh

Validity

When owners of joint holding of different revenue estates intended to separate their respective shares and when in respect of all estates applications were pending adjudication then it was far better in the interest of justice and for the parties that all such applications be decided simultaneously

Consolidating all such applications would be more appropriate so that any dispute with respect to shares, possession, carving out of Tatimma and potentiality of property keeping in view para 18.6 of Land Record Manual, be decided once for all

Applications of different estates of same sub-division could be consolidated, especially when no one was disputing the same

Philosophy and logic for consolidation of partition application was settlement of all kinds of disputes not only to Khewat ( ) but also to survey numbers either of the same or of different holdings ( )

High Court remanded the matter to revenue authorities for consolidated partition proceedings of both revenue estates synchronously

Petition was disposed of accordingly.

2021 YLR 1373 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 135 & 137Civil Procedure Code (V of 1908), S. 11Res-judicata, principle ofApplicabilityPartition of land

Petitioner-plaintiff after withdrawing his application for partition of land before revenue authorities filed civil suit before Civil Court

Suit filed by petitioner-plaintiff was concurrently rejected by Trial Court and Lower Appellate Court, as barred by principle of res-judicata

Validity

Withdrawal of application for partition before revenue forum did not constitute a bar in the way of filing subsequent suit before Civil Court

Application for partition filed before Revenue Court under S.135 of Khyber Pakhtunkhwa Land Revenue Act, 1967, was filed before such a forum which was not competent to grant relief in subsequent suit

Such proceedings were not decided on merit but were disposed of on the basis of compromise and matter in issue was not directly and substantially in issue in proceedings of partition application

High Court set aside judgment and decree passed by two Courts below and the matter was remanded to Trial Court for decision afresh

Revision was allowed accordingly.

2021 CLC 1230 PESHAWAR-HIGH-COURT Judicial Precedent

Ss.135, 137 & 172Specific Relief Act (I of 1877), S.42Civil Procedure Code (V of 1908), S.9Suit for declarationPartition of landNecessary partiesCivil Court, jurisdiction ofScope

Petitioners-plaintiffs assailed partition proceedings initiated by revenue authorities on the plea that they were owners of land in question and were not joined in partition proceedings by revenue authorities as their names were not incorporated in column of ownership

Validity

Revenue authorities failed to comply with the provisions of S.137 of Khyber Pakhtunkhwa Land Revenue Act, 1967, which had provided that after receipt of partition application, Revenue Officer had to issue notices to recorded co-sharers, who were not joined in the application

Where allegations of lack of jurisdiction or mala fide were attributed to the authority passing order in question, Civil Courts could examine such matter under the provision of S.9, C.P.C. as a Court of ultimate jurisdiction

High Court set aside judgments and decrees passed by two Courts below and remanded the matter to revenue authorities for fresh partition proceedings

Revision was allowed accordingly.

2016 YLR 35 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 135, 136, 142, 27, 7 & 20(3)West Pakistan Land Revenue Rules, 1968, R.10Punjab Land Record Manual, Ch. 18Constitution of Pakistan, Art. 199Constitutional petitionPartition of landPartition proceedings conducted by patwari appointed as local commission by Deputy District Officer (Revenue)Validity

Revenue Officer should decide the question as to the land to be partitioned or mode of partition by holding necessary inquiry and record his decision on the basis of sound and cogent reasons

Inquiries conducted under West Pakistan Land Revenue Act, 1967 were judicial proceedings

Deputy District Officer (Revenue), in the present case, did not make any inquiry by himself

Partition proceedings were conducted through Patwari by appointing him as local commission

Girdawar Circle or a Patwari could not be vested with the power of a Revenue Officer to conduct inquiry under West Pakistan Land Revenue Act, 1967

Power and authority to set in law was not transferable otherwise than provided in law

All orders made by the Revenue Officer as Trial Court, the inquiry conducted by Patwari and the appointment of Patwari as local commission were contrary to West Pakistan Land Revenue Act, 1967

Revenue Officer could appoint commission for proceeding under West Pakistan Land Revenue Act, 1967 but same was conditional with ranks that would fall within the ambit of Revenue Officer

Partition proceedings conducted by Patwari as local commission were without legal authority, null and void

Order passed by Member Board of Revenue putting at naught the order of Deputy District Officer (Revenue) was in accordance with law

High Court directed the Senior Member of Board of Revenue to issue directions to all the Revenue Officers especially to all the Collectors in the province that before issuance of any direction in partition suit, Trial Court shall make inquiry in judicial manner and further the procedure provided in Chapter-18 of the Land Record Manual; if necessary, appoint commission (Revenue Officer) not below the rank of Assistant Collector 2nd Grade to conduct the inquiry and proceedings.

2016 MLD 1346 BOARD-OF-REVENUE-PUNJAB Judicial Precedent

Ss. 135 & 164Partition of land

Tehsildar, on submission of application for partition of land of joint khata, partitioned the land of joint khata; and framed wandajat of the parties accordingly

Aggrieved by that order, the petitioners filed appeal before District Officer (Revenue) with delay of about three years, which was dismissed

Revision petition was also dismissed by Executive District Officer (Revenue)

Main contentions of petitioners, were; that Tehsildar while passing order of partition, had denied opportunity of hearing to the petitioners; that, right of two minors had been jeopardized while passing such order; that area under possession of the petitioners, had been given to the respondents, and more valuable land disproportionate to the entitlement of the respondents, had been given to them through impugned partition and that no opportunity of hearing was given to the petitioners

Validity

Contention regarding opportunity of hearing, had become merely a technical plea as the matter was in litigation before various forums of law for the last 20 years and at each forum, the petitioners had availed the opportunity of hearing and lost their case at each forum

Regarding minors, with the time they had attained the age of majority, but had never assailed the impugned partition, such contention was worthless

Contention of the petitioners that area falling under their possession had been given to the respondents, was quite astonishing, as petitioners, during arguments had themselves admitted that the respondents were not in possession of even an inch of impugned land; and all the impugned land was in the possession of the petitioners

If that contention of the petitioners, was accepted, the respondents would remain landless for all times

Petitioners, being in excess possession than their entitlement were refusing the right of harvesting benefits to the respondents of their entitlement and wanted to continue with such robbery

Plea of petitioners regarding valuable land was explained by site maps and clarified the position that no injustice had been inflicted upon the parties through impugned partition, as every body had been accommodated in proportionate to his entitlement

Impugned partition had already been implemented both, in the revenue record and on ground as well, back in the year 2006; and new owners had entered through purchases

Any change in partition at present stage could cause the parties to be victim of another long, unnecessary and miserable round of litigation, which was not permissible in any circumstances

Impugned orders were upheld in circumstances.

2015 YLR 2457 BOARD-OF-REVENUE-PUNJAB Judicial Precedent

Ss. 135, 147 & 164West Pakistan Land Revenue Rules, 1968, R.6-APartition of landRespondents submitted application to Tehsildar for partition of land of joint khataTehsildar partitioned the land and framed wandajat of the parties

Appeal filed by one of the respondents against order of Tehsildar before District Officer (Revenue) was accepted and case was remanded to Tehsildar, with direction to partition, the land of joint khata afresh

Appeal filed against said order, was dismissed by Additional Commissioner

Validity

Main stance of the petitioner was that the parties were in possession of impugned land as consequence of family partition arrived at between the parties back in year 1970, and further reiterated in year 1990

­Petitioner, admitted that such partition, had not been entertained in terms of S.147 of West Pakistan Land Revenue Act, 1967, but as an evidence of such part ition

Petitioners, could produce girdawari showing the possession of the respective parties, as per such partition from 1970 onward

Petitioner, produced copies of Khasra girdawari for the year Kharif 1972 to Kharif 1976

Respondent contradicted that contention of family partition, and produced the detailed chart showing the possession of contesting parties on impugned land from 1971 to 2008

Said chart, had shown that none of the party was in continuous possession of particular piece of land from 1990 onwards establishing the fact that possession had been changing between the parties and no party was in continuous possession of specific piece of land, leading to the conclusion that no family partition was effected between the parties

Where the main contention of the petitioner, had been defeated out of examination of relevant record, revision petition was left with no merits which was dismissed, and impugned order passed by Additional Commissioner (Revenue), was upheld in circumstances.

2014 CLC 758 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 135Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42(12) & 44Partition of landWrit petition before High CourtScope

Parties were co-sharers in the land in dispute, and if one party claimed that the land in possession of other party was in excess of its marginal share, then it was enjoined upon the Revenue Assistant to order for partition of the land according to the shares

Co-sharer had right to apply for partition of the land, and get the land partitioned, and entered in the revenue record in separate khewat and khata number

Orders passed by Revenue Authorities and the judgment of High Court in that respect, were perfectly legal

If the findings recorded by the lower Tribunals were based on no evidence, or were against the record, then High Court could interfere with the findings of the lower Tribunals under extraordinary jurisdiction vested in it under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974

In the present case the findings recorded by the lower Tribunals were based on the record

High Court was justified in dismissing writ petition

Petition for leave to appeal was dismissed in circumstances.

2012 CLC 1283 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Chap. XI [Ss.135 to 150]Civil Procedure Code (V of 1908), S.9Specific Relief Act (I of 1877), S. 42Suit for declarationPartition of land

Plaintiffs had challenged the order of Revenue Assistant on the ground that partition-deed in respect of suit land was contrary to the partition order passed by Revenue Assistant and that partition-deed issued by Revenue Assistant was without hearing the plaintiffs, without notice, against law, mala fide and in violation of the provisions of West Pakistan Land Revenue Act, 1967

Jurisdiction of civil court

Scope

Section 9, C.P.C. had conferred jurisdiction upon the civil court to hear, determine and adjudicate a cause by exercising their judicial power and authority

Civil court is granted general jurisdiction to try all suits of civil nature, unless their cognizance was specifically or impliedly barred

For the purpose of determining the question of jurisdiction, the recitals in the plaint had to be considered and the question be decided on the basis of facts alleged in the plaint

Section 9, C.P.C. had conferred wide powers in the civil court to determine whether court of special jurisdiction had acted in accordance with law; and limits imposed upon it by law

When the jurisdiction of civil court was expressly barred and conferred upon special tribunal, civil court being courts of ultimate jurisdiction had the jurisdiction to examine the acts of such forum, whether those were in accordance with law; within sphere allotted to it by such law; illegal, mala fide or contrary to principles of natural justice

Civil court could determine whether a judgment was obtained on the basis of fraud and a functionary had exceeded its jurisdiction; and its order was nullity in the eyes of law

Where the statutory provision had not been complied with, the civil court could set aside such judgment

Under Chapter XI of West Pakistan Land Revenue Act, 1967, Revenue Courts had exclusive jurisdiction to decide the question relating to the partition of land; and the civil court could not question the correctness of the decision of Revenue Court based on law and valid exercise of jurisdiction; in that case the jurisdiction of the civil court was ousted, but if the decision was in violation of law, procedure, mala fide, based on fraud, against the statutory provisions, in violation of principles of natural justice, the civil court would have jurisdiction to entertain the suit and decide the same

Had the plaintiffs challenged the correctness of the partition-deed without alleging said facts of mala fide etc., then S.172 of the West Pakistan Land Revenue Act, 1967, should have come in operation; and in that case civil court had no jurisdiction to entertain the suit

Plaintiffs had challenged the decision of the Revenue Authorities on the grounds which attracted the jurisdiction of the civil court; no ouster clause was attracted

Civil court, in circumstances, had the jurisdiction to entertain and decide the suit.