Ch. Muhammad Naeem & 3 Others Vs Member Judicial BOR Punjab etc

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.59198 of 2024

Muhammad Naeem, Advocate etc.

Versus The Member (Judicial-II), BOR Punjab, Lahore etc.

Sr.No. of Date of Order with signatures of Judge and that of parties or Order/ Order/ counsel, where necessary. Proceeding Proceeding

30.09.2024 Mr. Iqbal Ahmed Dhudhi, Advocate for the petitioners.

Through this constitutional petition, the petitioners have challenged the validity of the order dated 23.07.2024 passed by the Member (Judicial-II), Board of Revenue, Punjab who dismissed Review Petition No.401 of 2023 of the petitioners filed in ROR No.2980/2022.

2.Brief facts of the case as stated by the learned counsel for the petitioners are that respondent No.5/Muhammad Imtiaz filed an application for partition of joint Khata measuring 213-Kanals 17- Marlas situated in Mouza Burj Khurd, Tehsil & District Kasur against the petitioners and Muhammad Ishaq etc. and similarly another application for partition was also filed against the petitioners regarding land measuring 169-Kanals of Mouza Burj Khurd, Tehsil & District Kasur. On the request of the petitioner, the Naib Tehsildar adjourned sine die the

proceedings due to pendency of the civil suit vide separate orders dated 15.02.2020. Against the above order, respondent No.5 filed two applications for review which were also adjourned sine die by the AC- I, Kasur vide order dated 08.05.2021. Respondent No.5 challenged the above said orders before the Addl. Deputy Commissioner (Revenue), Kasur who while accepting the said petitions vide order dated 03.11.2020 directed the Naib Tehsildar/AC-I to decide the review applications as per law within one month.

Petitioners challenged the said order through an appeal which was dismissed by the Addl. Commissioner (Consolidation), Lahore Division, Lahore vide order dated 17.10.2022. The petitioners challenged the said order through ROR No.2980/2022 which was dismissed by the Member, (Judicial-II), Board of Revenue, Punjab vide order dated 30.11.2023. Against the said order, the petitioners filed Review Application No.401/2023 on 07.12.2023 and the said application was dismissed by the Member (Judicial-II), Board of Revenue, Punjab vide order dated 23.07.2024. Hence, this writ petition.

3.Arguments heard. Record perused.

4.As the partition of agricultural land is in question and Chapter-II of the Punjab Land Revenue

Act, 1967 deals with partition matters of agricultural land. Under Section 135 of the Act ibid any joint owner of agricultural land may apply to a revenue officer for partition of the joint land and separation of his share. In 2013, through an enactment the Punjab Land Revenue (Amendment) Act, 2012, Section 135-A was added whereby a modus oprandi is provided for partition that immediately after sanctioning of the inheritance mutation the revenue officer without awaiting any application from any co- owner shall serve notice on all joint owners of the land to submit an agreed scheme of private partition of the joint land and on receipt of such scheme under subsection (1), the revenue officer shall affirm the scheme according to the provisions of Section 147 of the Act ibid otherwise he shall proceed ahead the case as per law. For ready reference, Section 135A of the Act ibid is reproduced as under:-

“135-A. Partition in case of inheritance.—(1) Notwithstanding anything contained in section 135, immediately after the inheritance mutation has been sanctioned and without any application, the Revenue Officer shall serve notice on all joint land- owners of the holding to submit, within thirty days, a scheme of private partition agreed to by all the joint land-owners.

(2)If the scheme of private partition under subsection (1) is submitted, the Revenue Officer shall affirm the scheme in accordance with the provisions of section 147.

(3)Notwithstanding anything contained in this Act, a scheme for private partition between all the joint land-owners may include site of a town or village.

(4)If the scheme under subsection (1) is not filed within the stipulated time, the Revenue Officer shall immediately commence proceedings for the partition of the joint holding.”

The Punjab Land Revenue Act, 1967 is a special law which deals with the matters pertaining to the rights in the agricultural land and the aforesaid provision [i.e.

Section 135-A] clearly directs the Revenue Officer to immediately start the partition proceedings even if any application is submitted by the co-owners or not and also to decide the said matter expeditiously.

Further, under Section 141 of the Act ibid, the Revenue Officer is also competent to decide the question of the title of such land. For ready reference, Section 141 of the Act ibid is reproduced as under:- “141. Question of title of holding — (1) If a question of title in the holding is raised in the partition proceedings, the Revenue Officer shall inquire into the substance of such question.

(2)If as a result of the inquiry, the Revenue Officer is of the opinion that the question of title raised in a partition proceedings:

(a)is well founded, he may, for reasons to be recorded, require a party specified by him to file a suit in the competent court, within such period not exceeding thirty days from the date of his order, for obtaining a decision regarding the question; or

(b)is not well founded, he shall proceed with the partition of the holding.

(3)In case the suit is filed under subsection (2), the Revenue Officer shall suspend further action on the partition proceedings till the decision of the suit and submission before him the other or decree of the Court.

(4)In case the suit is not filed within the specified period, the Revenue Officer shall proceed to decide the

question of title and on that basis, the partition of the holding.”

Section 141 of the Act ibid was substituted through the Punjab Land Revenue (Amendment) Act, 2015 with the following provision:-

“3. Amendment in Section 141 of Act XVII of 1967.— In the said Act, for Section 141, the following shall be substituted.

“141. Question of title of holding — If a question of title in the holding is raised in the partition proceedings, the Revenue Officer shall inquire into the substance of such question and decide the matter after hearing the parties.”

Now after the aforesaid amendment in respect of the partition between the parties at the time of incorporation of inheritance mutation, if the parties/co- sharers are agreed for the scheme of private partition then the Revenue Officer shall affirm the scheme otherwise he shall immediately commence the proceedings of partition of the joint holding and complete the same within thirty days. If any question of title in the holding arises during the partition proceedings, the Revenue Officer under Section 141 of the Act ibid is fully competent to decide this issue after hearing the parties and the decision of Civil Court is not required in this regard.

5.As far as this plea of the petitioners that civil suit is pending and during the pendency of the suit before the Civil Court, the revenue hierarchy has no

jurisdiction to adjudicate the matter, suffice it to say that as per Section 141 of the Land Revenue Act, 1967 if a question of title in the holding is raised in the partition proceedings, the Revenue Officer shall inquire into the substance of such question and decide the matter after hearing the parties. In this case, the title of the suit land is not disputed between the parties rather petitioners claimed that private settlement had already been arrived at between the parties as per Section 135-A of the Act ibid, thus the revenue officer has jurisdiction to adjudicate the matter regarding some private settlement in respect of the joint property. In this case, respondent No.5/Muhammad Imtiaz filed an application for review of order dated 15.02.2020 whereby the Naib Tehsildar adjourned the applications for partition sine die on the ground of pendency of civil suit. The Addl.

Deputy Commissioner (Revenue), Kasur accepted the applications of Muhammad Imtiaz/respondent No.5, the brother of the present petitioners and directed the Naib Tehsildar to decide the review applications within one month. The said order was upheld by the Addl. Commissioner as well as Member (Judicial-II), Board of Revenue vide orders dated 17.10.2022 & 30.11.2023 respectively. As apparent from the available record, it appears that the petitioners are

trying to linger on the matter on frivolous and unwarranted grounds. The Hon'ble Supreme Court of Pakistan in a recent judgment titled as Syed Ghazanfar Ali Shah Vs. Hassan Bokhari and others (2024 SCMR

154)has seriously discarded such practice of delaying the partition matter without any valid reason.

6.Even otherwise, in ROR No.2980/2022 order was passed on 30.11.2023 and the said order was not assailed by the petitioners within reasonable time rather they filed Review Petition No.401/2023 under Section 8 of the Board of Revenue, (Punjab) Act, 1957 which was dismissed by the Member (Judicial-II), Board of Revenue, Punjab vide order dated 23.07.2024 on the ground of limited scope of the remedy of review as well as non-existence of any sufficient ground for review of his earlier order.

7.Learned counsel for the petitioners has not pointed out any illegality or material irregularity in the impugned order passed by the Member, Board of Revenue and has also not identified any jurisdictional defect.

8.In nutshell, this writ petition is dismissed in limine being devoid of any merit. However, the Revenue Officer concerned is directed to decide the

matter strictly on merits and in accordance with law expeditiously.

(CH. MUHAMMAD IQBAL)

JUDGE

Approved for reporting.

JUDGE

Shahzad Mahmood / Abdul Hafeez