Fida Muhammad Vs Said Muhammad Arif etc

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Writ Petition No. 4017-P/2024

Fida Mohammad .........Petitioner(s).

Versus Said Muhammad Arif and others.

..........Respondent(s)

For the Petitioner: Mr. Gul Sadbar Khan, Advocate

For the Respondents: Mr. Jehan Afsar, Advocate.

Date of Hearing: 24.10.2025

JUDGMENT

WIQAR AHMAD, J.- Facts of instant matter as per contents of writ petition, are that respondents No.1 to 10 moved an application for partition before respondent No.31 (Additional Assistant Commissioner) which was contested by the petitioner through a detailed reply raising various preliminary objections including those of title and jurisdiction. The petitioner also sought a stay of the partition proceedings on the ground that a civil suit regarding title of the property was already pending. Respondent No.31, after hearing both sides, dismissed the stay application on 06.10.2021. The petitioner’s appeal before respondent No.30 (Additional Deputy Commissioner) met same fate on 24.02.2022. However, on revision, respondent No.29 (Additional Commissioner Mardan) accepted the petitioner's plea and set aside the

impugned orders, vide order dated 08.06.2022. Subsequently, respondents No.1 to 10 filed a second revision before respondent No.28 (Member Board of Revenue-II, KP, Peshawar), which was accepted on 31.07.2024. Feeling aggrieved, petitioner has filed instant writ petition.

2.Arguments heard and record perused.

3.Perusal of record reveal that instant petition has been filed against a remand order of SMBR-II whereby he held that the partition proceedings (earlier stopped through an order of Commissioner in 1st revision) should be proceeded further and accordingly order of Additional Commissioner Mardan dated 8.6.2022 was set aside.

4.Learned counsel for petitioner mainly contended that petitioner had purchased the property from one Jehanzeb predecessor in interest of respondent of respondents No. 1 to 9 and that said Jehanzeb was not left with ownership of any property therefore his successors could not have filed an application for partition subsequently.

5.Transaction in favour of the petitioner had been incorporated in the revenue record through mutation No. 4016 attested on 16.9.2006 in the revenue estate of Mauza Topi District Swabi where he had been shown to have purchased an area of 2 kanals 5 marlas. The entry of said mutation had duly been incorporated in the revenue record. Share of the petitioner had neither been claimed nor disputed by

respondents to the extent of his mutated property. He had been arrayed as respondent in the application for partition. The proceedings of application for partition did not mean that he was being deprived of his property purchased by him. His share, whatever recorded in the revenue record, is to be adjusted to him in the partition proceedings. The principles in respect thereof have been well settled. No serious question of title warranting stoppage of partition proceedings could be found existing in the case. Mere fact of pendency of civil suit before the civil court, cannot be made a ground for stoppage of partition proceedings. If this approach is adopted then no partition proceedings would ever be able to run. Normally various persons are parties in a Khata sought to be partitioned under section 135 of the Land Revenue Act and those parties who do not want partition, may chose a methodology wherein they may institute civil suit one after another and partition proceedings could not be conducted. Section 141 of the Land Revenue Act gives jurisdiction and discretion to the revenue officer to determine, by keeping in mind the nature of title dispute where it should proceed the partition proceedings or should stop it till pendency of the civil suit. Said discretion had appropriately been exercised by the revenue officer who had held that partition proceedings should be carried on.

Appeal was also dismissed for the right reasons. Interference of Additional Commissioner Mardan in the matter was not at all justified. The partition proceedings had wrongly been

suspended which order has properly been set aside by Member-II Board of Revenue. No prejudice to any of fundamental rights of the petitioner was found. The proceedings have not yet been finalized at departmental end.

The writ petition has been filed against the order made during pendency of the partition proceedings, and not against any final order determining rights and on said score also it is not maintainable. Reliance may here be placed on judgment of Hon'ble Supreme Court of Pakistan rendered in case of President All Pakistan Women Association, Peshawar Cantt...vs...Muhammad Akbar Awan and others reported as 2020 SCMR 260.

6.For what has been discussed above, instant writ petition was neither maintainable nor was possessing any merits and same is accordingly dismissed.

Announced on;

24th of October, 2025 *Zarshad* --Sd/-

JUDGE

(SB)Hon’ble Mr. Justice Wiqar Ahmad