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Civil Revision No'564-P/202 I'

Nawaar Khan etc.

Versus

Gul Mohammad and others.

JUDGMENT

Date ofhearing. .....30.4.2025..

by:- Petitioner(s) Mr. Abdul Ahad, Advocate'

Respondent (s) by:- Mr. Mohammad Atlas Khan Dagai, Advocate.

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wIoAR AHIWAD, J:- The petitioners filed a civil suit before the learned Civil Judge-IV, Lahor, District Swabi, seeking partition and possession of a jointly owned immovable properly. The property in question measures 3 kanals and 17 marlas and comprises Khasra Nos. 1512, 1508, and 1513, recordedunderKhataNos.l04llT7 and

178.It is situated in Mauza Yar Hussain, District swabi. The petitioners claim ownership of a lS-marla share in said property' They assert that the property is held jointly by all parties involved' However, disputes have arisen concerning the distribution of shares and the valuation of different segments of the property. These disagreements have created obstacles in achieving a mutually agreed division. Due to the unresolved disputes, the petitioners have statedly approached the court seeking a legal remedy. They request the court to ensure the separation and allotment of their rightful share from the joint properly. Their claim is based on the principle CR No. 564-P/2021

^\, of joint ownership and the ongoing disputes among the co-sharers regarding the fair division of the property'

2.Upon issuance of summons, Gul Mohammad and sher ullah (Defendant No. I and 2) appeared before the court and contested the suit by filing their separate written statements. The learned Civil

Court framed the necessary issues for adjudication. Both parties produced evidence in support of their respective claims. After the conclusion of proceedirgr, the learned Civil Court dismissed the suit througlr judgment and decree dated 18 July 2019. Aggrieved by the decision, the petitioners filed an appeal before learned Additional District Judge-II, Lahor, Swabi. However, the appeal was also dismissed through judgment and decree dated 30 March 2OZL Consequently, the petitioners have filed this civil revision, challenging the judgments and decrees mentioned above.

3.Arguments heard and record perused.

4.Perusal of the record reveals that claim of the petitioners/plaintiffs was based on inclusion of their n€tmes as co- owners in KhasraNos. l5!2,1508, and 1513, KhataNos. l04ll77 and 178. However, both the courts below concluded that the properlry in question is agricultural in nature. Statement of concerned Patwari Halqa, recorded in this regard, is of significant importance. A portion of his cross-examination, recorded on 22 October 2019, is reproduced below for ready reference:

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5.Upon directed to prepare site map (,r-'*go: -it) of disputed he property, the Patwari Halqa visited the location. However, expressed his inability to identiff the disputed property or to

prepare a map showing its sulroundings. In this regard, his

below statement recorded on the following date is also reproduced for ready reference:

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It was evident from statement of Patwari Halqa that the property in dispute had been developed and was no longer agricultural. The remaining evidence also indicated that the contesting respondents had constructed houses on the disputed property and were residing there. Copies of the record of rights, which were extribited in evidence, also contained an entry stating

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* ^+Jt", particularly in Khasra No. 1513. Special attorney of the petitioners, namely Mutahir Khan, while testiffing as PW-2, admiued that a portion of the property had been transferred by the petitioners to one Mughal Baaz,who was predecessor-in-interest of the contesting respondents. It was further admitted that the respondents had constructed a house on that portion and were residing therein. This witness also acknowledged that said respondent had purchased additional property in same area from CR No. 564-Pl202l

A another co-owner, namely Mohammad Akbar. Relevant portion of the cross-examination of PW-2 is also reproduced below for ease of reference;

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l. He also admitted that it was same portion on which Respondent No. I had constructed his house. Additionally, he stated that the land sold to Mugh al Baaz was ftansferred prior to the witness's memory. In these circumstances, the transaction could not have been fully reflected in the revenue record, particularly because, in cases involving constructed properties, updating the revenue record is generally not made. Therefore, it could not be held that the petitioners/plaintiffs remained co-owners with those who had purchased specific portions of the disputed property and constructed separate houses upon them. The mere fact that rulmes of petitioners/plaintiffs' was reflected in the revenue record as co- CR No. 5&-P/2021

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owners did not established co-ownership in the constructed houses, and especially where the property had lost its agricultural character developed into individual residences by the

respondents/defendants. In the absence of any evidence suggesting jointly that the houses were jointly owned, jointly constructed, or possessed by the petitioners/plaintiffs, or that they had been inherited from a common predecessor, entries in the revenue record cannot serve as conclusive proof of co-ownership. Filing a suit for partition under such circumstances was entirely ill-conceived.

7.The case presented by the petitioners reflects a basic misunderstanding of the law relating to partition. It is correct that partition is a matter of right between co-owners of joint properly.

This principle is expressed in the legal maxim nemo in communione potest invittts detineri, meaning that no one can be forced to remain in co-ownership against his will. Normally, any co-sharer who holds an undivided share in a property may approach the court or the appropriate revenue forum to seek partition and separate possession of his rightful share. However, this right can only be enforced when it is established that at the time partition, co- ownership and unity of possession are in existence and have not been practically severed. Partition marks the conclusion of ongoing joint ownership by converting an undivided share into a specific and sep arutetitle. In the present case, the undivided share claimed by the petitioners has, in practical terms, already been separated and allocated on the ground. Specific portions have been transferred to other individuals, who were in possession and have constructed houses on those portions. As a result, the original joint property no CR No. 5&-Pl202l

longer existed as a single whole that could have been partitioned in the usual legal manner. In such circumstances, allowing a technical claim for partition by a person who had no physical stakes or presence in the property, would disrupt settled possession and ownership. It would also undermine the equitable basis of partition proceedings. The law does not support a claim that exists only on paper, especially when it goes against established facts and realities on the grotrnd.

8.Learned counsel for petitioners, referring to the statement of the Patwari Halqa that the property in dispute was unidentifiable and undetermined due to its development into constructed houses, relied on Section 4 of the Partition Act, 1893. Same provision being relevant is also reproduced below for reference:

" 4. Partition suit by transferee of share in dwelling-house.-

(l)Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such ffansferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2)If in any case described in sub-section (l) two or more members ofthe family being such shareholder severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section."

The wording of Section 4 ofthe Partition Act, 1893 is clear in itself.

It applies when a member of an undivided family sells a portion of land to an outsider, ffid the property in question is a house that cannot be physically partitioned. In such cases, if any other shareholder expresses a desire to purchase share of the transferee, CR No. 564-P/2021

its sale the court may assess the value oftransferee's share and order to the requesting shareholder. However, the application of this section requires a fundamental condition that the house must be

owned by members of an undivided family. In the present case,

to ttre there was no evidence to suggest that the petitioners belonged the same family as the respondents, or that they had inherited property from a common predecessor. In fact, this was not even the case pleaded by the petitioners before the civil cotlrt. Moreover, there was no evidence to show that the petitioners co-owned the developed portions of the properly, including the constructed houses, with the defendants. The only reliance was on the fact that their names continued to appear in the Ktrata in the revenue record.

Such residual entries, relating to land that had undergone transformation from agricultural use to constructed property several decades ogo, cannot be treated as proof that the petitioners were co- owners in all the houses built on the land. These entries do not entitle them to claim co-ownership or seek partition of any house of their choosing. When questioned on this aspect, learned counsel for petitioners claimed to be co-owners in the constructed houses of the defendants. In support of this argument, learned counsel for the petitioners relied on the judgment of Honorable Sindh High Court in case of Muhammad Anwar v, Dr. Gohar Ali teported as 2007 CLC 621 Karachi, ffid the judgment of Honorable Latrore High Court in case of Muhammod Aziz v. Muhammad Arif (and another) reported as 2001 MLD 597 Lahore. He contended that a co-owner or co-sharer is deemed to have a share in every inch of the joint property until it is partitioned by metes and bounds.

CR No. 5il-P/2021

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9.As far as the case of Muhammad Aziz (supra) is concerned, it does not support the case of the petitioners. Firstly, that case related to agricultural properly. Secondly, the vendee was found to have purchased a specific portion of the immovable properly, and it was helcd even in said judgment he could not be treated as a co- sharer in the remaining joint property merely because he had purchased an identified and specific part. In this regard, paragraph 9 of the judgment is quite clear and is reproduced below for ready reference:

"9. While in the present case, the vendor was the sole proprietor of the Khata and she sold specific khasra numbers in favour of the pre-emptor/respondent and by purchasing of these specific khasra umbers, the plaintiff would not be construed to be a co-sharer in the remaining land which also falls in separate rectangle and specific khasra numbers. Thus, the cases referred by the learned counsel for the respondent are in no way applicable to the facts of the present case and helpful to the respondent."

While delivering saidjudgment, Honorable Lahore High Court also relied on the principle laid down by the Honorable Supreme Court of Pakistan in the case of Mardan Shah vs. Shah Nazar Khan, reported as PLD 1970 S.C 245 wherein the apex court had held as follows

" Under section 12 firstly ofthe Act, the right of pre-emption qua the property sold vests in a person who is a co-sharer in such property. Now a co-sharer is not statutorily defined, but its legal concept is quite well-settled, namely, that a co-sharer whatever the extent of his right in the joint property, is a co- owner in every inch of that property to the extent of Lis share until partition takes place which he can claim as a matter of right. The appellant's right of co-ownership in the present case is merely confured to one wall and the site under it which, as usual, was probably due to mutual agreement between him and the original owners in their mutual interest. But this jointness in one wall cannot be extended to create a risht in the anoellant as a in the entire house in dispute. In an analogous case reported as Rajindra Singh v. Umrao Singh and others (A I R 1925 Lah.223} a Division CR No. 564-Pl202l

a Bench of the Lahore High Court in examining the right of a pre-emptor on the basis of co-sharership, has observed as follows :- ,'A person who is a part-owner of one of the walls of a house but has no right of any kind in any other part of the house whatsoever, is not entitled to call himself a co-sharer in the whole property."

We fully concur in this view which depicts the correct legal position. The appellant's claim that by reason of his being a co-owner in a common wall of the disputed house. he should be deemed to be a co-sharer in the house in dispute to give effect to his pre-emptive right to that house. is too wild to need any further comment. The appeal is dismissed with costs." "emPhasis suPPlied."

It is important to note that in above-mentioned judgment, Honorable Supreme Court of Pakistan, despite referring to the principle that a co-owner was deemed to be the owner of every inch of the joint property, did not apply this principle to the case before it, which involved a constructed house. The Court obsenred that said principle had primarily been developed in relation to agricultural land and could not be readily applied to a constructed house in the absence of independent evidence establishing co- ownership.

10.So for as second judgment relied by learned counsel for petitioner i.e. Muhammad Anwar (supra) was concerned facts of same case was also different and the principle laid down therein could not be applied to the facts of the case in hand. In said case there was a dispute amongst the legal heirs of common predecessor over the property and facts of same were by no means similar to the present one. The principle that a co-owner would be deemed to be owner in every inch of the property has been developed in those cases where a person is recorded as co-owner in agricultural CR No. 564-Pl202l

i\ immovable property which is subject to partition and till partition takes place by metes and bounds a co-owner is deemed owner in the entire corpus of the property. This principle cannot be stretched to the case in hand where defendants had constructed their houses and they have exclusive use and possession of said houses.

petitioners had neither been belonging to said families nor offspring of any common predecessor nor a partner nor have ever participated in the construction of the houses. In such circumstances mere entries as co-owner in former revenue record maintained for the purpose when same used to be agficultural in nature, cannot by itself be taken as conclusive proof that the person was co-owner in the constructed houses of the defendants. Entries in the revenue record may be a piece of evidence but besides same, evidence has to be led by such claimant to prove that in addition of being recorded as co-owner in the revenue record, said claimant have actually been co-owner in the constructed house either by way of inheritance, acquisition or other contractual relations or that he has been dispossessed therefrom in violation of provisions of Illegal Dispossession Act. He will have to explain that he or his predecessor had remained in possession and how had they lost possession and what were reasons that they could not bring an action within the prescribed period of limitation. After such evidence is led then the entries in the revenue record may be read in aid of such evidence but it by itself cannot be treated as conclusive proof of co-ownership of a person when the property is constructed one.

CR No. 5&-P/2021

11.This Court, in a similar matter, decided Civil Revision No. 282-Pl2Ol3 dated 23.04.2025, titled shehriyar Khan vs.

Muhammad Kareem and others, and held as follows:

'oOnce agricultural land is converted into Abadi Deh and entered into the Laal Lakir, no mutation can be attested in respect of such properly. In this situation, the fiansfer of property must take place through a sale deed or other legal instruments. The Registration Act, the Transfer of Property Act, and the Contract Act will govern such transactions' However, if agricultural land has been practically converted into Abadi Deh but has not been marked as Laal Lakir by the Revenue Deparfinent due to the failure of conducting the required periodical assessment after every 25 years, then mutation may still be attested in respect of such property. This is because the revenue record has not been officially converted into Laal Lakir and remains valid. Although the significance of the ordinary revenue record for the purposes of title transfer and revenue maffers under the Land Revenue Act, 196'1, may diminish due to the changed nature of the land, if the revenue record is maintained and Jamabandi are regularly prepared without demarcating the Abadi Deh in the Laallakir, then such records may still serve as corroborative evidence for determining title. A comprehensive Record of Rights (Misal-e-Haqiat) is prepared after conducting a proper settlement operation of the land, which is required to take place every 25 years. Additionally, Jamabandi is to be prepared every four years. various sections of the west Pakistan Land Revenue Act, 1967<uch as Section 40, Section 59, Section 64, and Section 116<mpower the Provincial Government and the Board of Revenue to carry out the settlement of an estate or subdivision, generally on a routine basis after every 25 years. Unfortunately, this legal obligation is not being fulfilled by the Revenue Department, despite the existence of a well-established institutional framework and a sufficient number of human resources. If this mandatory settlement operation is conducted as required under Section 64Q) of the Land Revenue Act, 1967, it will significantly reduce unnecessary litigation before civil courts and revenue officers. Therefore, this court emphasizes the importance of compliance with the law and reminds the Revenue Department and the Board of Revenue, established under the West Pakistan Board of Revenue Act, 1957, to fu lfi ll their statutory responsibilities.

t2. In the present case, both the courts below have correctly identified the origin and nature of the dispute and have applied the relevant legal principles to the facts of the case. The evidence has CR No. 5&-Pl202l

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.\" both been properly evaluated, and the concurrent findings of fact by courts leave no justification for this court to interfere in the matter white exercising its revisional jurisdiction. Reliance in this respect is also placed on the judgments of Hon'ble Supreme Court of pakistan rendered case of AAMIR LWLAL Vs S. AKMAL (deceased) through L.Rs, reported as2024 SCMR 1649, Salamt Ali vs Muhammad Din reported as PLD 2022 S.C 353 and case titled Nasir Ati vs Muhammad Asghar reported as 2022 SCMR

13.In light of what has been discussed above instant civil revision was found lacking substance and same accordingly dismissed.

Announced on;

sUh ofApril,2025 tZaztha/,)

(SB)h[r. Justice Wiqar Ahmad

CR No, 564-P/2021