Dilasa Khan & others Vs Shah Zaheer & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

1)W.P No. 448-M/2026 (Dilasa Khan and others Vs. Shah Zaheer and others)

2)W.P No. 1141-M/2022 (Mufti Kifayat Ullah and others Vs. Khan Badshah and others)

3)W.P No. 1264-M/2023 (Muhammad Nagin and others Vs. Mati Ullah and others)

4)W.P No. 784-M/2025 (Aqil Nawaz Khan and others Vs. Malak Haji Aman ul Mulk etc.)

5)W.P No. 925-M/2025 (Hafiz Ur Rahman and others Vs. Muhammad Yar Jan and others)

6)W.P No. 1652-M/2025 (Bacha Muhammad and others Vs. Wahdat Khan and others)

7)W.P No. 169-M/2026 (Fazal Wahid and another Vs. Aziz Ur Rahman and others)

8)W.P No. 648-M/2026 (Badshah Zahid and others Vs. Khan Badshah and others) Present:

M/S Qazi Farid Ahmad, Asghar Ali, Syed Abdul Haq, Akhtar Munir, Muhammad Zahir Khan, Javed Akhtar Tajak (via video link) and Akbar Ali Swati, Advocate for petitioners.

Mr. Haq Nawaz Khan, Addl: A.G. for official respondents.

M/S Akhtar Munir, Razaullah Khan, Muhammad Humayun, Syed Abdul Haq, Husnul Maab,and Rahatullah, Hamid Ullah, Advocates for private respondent.

Date of hearing: 20.05.2026

JUDGMENT

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

QAZI JAWAD EHSANULLAH, J.- Through this common judgment, the captioned writ petitions are being decided together as they arise out of partition proceedings initiated under the Land Revenue Act, 1967 in the districts of Dir Upper and Dir Lower and involve common questions of law and fact. Broadly, the controversy in all these petitions revolves around the scope and extent of jurisdiction of the revenue hierarchy to entertain and adjudicate applications for partition in areas where no regular settlement record exists and/or where the entitlement of the parties to the property sought to be partitioned is itself disputed, thereby statedly giving rise to questions of title. Since the determination of these petitions depends upon interpretation of the same statutory provisions and examination of substantially similar legal issues, they are being disposed of through this single judgment to avoid repetition of facts and multiplicity of reasoning.

2.The facts of W.P No. 448-M/2026 are that the petitioners Dilasa Khan etc. filed an application under Section 135 of the Land Revenue Act, 1967 before the Assistant Commissioner, Wari, seeking partition of certain joint mountainous and grazing lands situated in village Razagay, District Dir Upper. The application was contested by the respondents Shah Zaheer etc. on the grounds of non-joinder of Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

necessary parties, existence of residential structures and other constructions on the property, absence of common lineage between the parties and, above all, the existence of a dispute regarding title and ownership. The Additional Assistant Commissioner dismissed the partition application on 15.12.2023 holding inter alia that questions of title were involved. On appeal, the Additional Deputy Commissioner constituted a commission, obtained a report and, vide order dated 12.09.2024, accepted the appeal and remanded the matter for partition proceedings. The said order was maintained by the Additional Commissioner, Malakand Division on 17.12.2024. However, the learned Member Board of Revenue, through order dated 27.01.2026, accepted the revision petition of the contesting respondents, set aside the orders of the appellate and revisional authorities and restored the order of the Assistant Commissioner. The petitioners have challenged the latter order through the present writ petition.

3.In W.P No. 1141-M/2022, the petitioners had sought partition of a joint holding situated at Mano Khwar, Tehsil Balambat, District Dir Lower through an application before the Assistant Commissioner. The application was contested but was ultimately accepted by the Additional Assistant Commissioner (Revenue) on 21.06.2019. The appeal preferred by the private respondents was dismissed by the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Additional Deputy Commissioner on 09.10.2019.

Subsequently, the Additional Commissioner, Malakand Division, in revision, set aside the concurrent orders of the revenue authorities on 30.06.2021. A further revision preferred by the present petitioners before the learned Member-II Board of Revenue was dismissed on 09.02.2022. Aggrieved therefrom, the petitioners have invoked the constitutional jurisdiction of this Court.

4.The facts of W.P No. 1264-M/2023 are that respondent No.1 instituted an application under Section 135 of the Land Revenue Act, 1967 before the Additional Assistant Commissioner (Revenue), Dir Lower, seeking partition of the property specified in the application. The present petitioners Muhammad Nagin and others contested the proceedings by filing a written reply wherein they asserted that the property had already been partitioned amongst the legal heirs of their predecessor, late Asmat Ullah, and also raised objections regarding the maintainability of the partition application.

Notwithstanding the objections, the Revenue trial Court framed issues, recorded evidence of the parties and, vide order dated 19.01.2023, allowed the partition application. The petitioners preferred an appeal before the Additional Deputy Commissioner, Dir Lower, who vide order dated 23.08.2023 maintained the entitlement of the parties to partition and Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

remanded the matter to the trial Court for appointment of a commission and completion of partition proceedings in accordance with law. Aggrieved therefrom, the petitioners have directly invoked the constitutional jurisdiction of this Court through the instant writ petition without exhausting the higher fora of the revenue hierarchy.

5.The facts of W.P No. 784-M/2025 are that respondent No.1 instituted an application for partition before the Assistant Commissioner (Revenue), Timergara, against the present petitioners and other co-sharers. The application was contested by the petitioners, who, besides filing a written reply, raised a preliminary objection that in the absence of settlement record in District Dir Lower, the Revenue Authorities lacked jurisdiction to entertain partition proceedings. The said objection was rejected by the Assistant Commissioner (Revenue) vide order dated 30.09.2015. The appeal, revision and further revision preferred by the petitioners respectively before the Additional Deputy Commissioner, the Additional Commissioner, Malakand Division and the Member Board of Revenue ultimately culminated in judgment dated 18.01.2018 passed by the Board of Revenue whereby the matter was remanded for continuation of partition proceedings. The petitioners challenged the said judgment through W.P No. 313-M/2018, which was dismissed Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

by this Court on 07.02.2019 with the observation that there was no legal embargo in the way of the Revenue Court to assume jurisdiction in the matter. Thereafter, respondent No.1 moved an application for restoration of the partition proceedings, which was accepted. The Revenue Officer proceeded with the matter, granted interim relief and, vide order dated 08.06.2021, framed as many as nine issues including issues relating to title and ownership. Subsequently, relying upon the judgment rendered by this Court in W.P No.

828-M/2020 and connected matters reported as PLD 2022 Peshawar 147, the petitioners filed an application seeking return or dismissal of the partition application on the ground that the Revenue Authorities lacked jurisdiction to proceed further. The said application was dismissed by the Additional Assistant Commissioner (Revenue), Timergara, vide order dated 07.07.2021 with the observation that the question of jurisdiction had already been adjudicated upon and, in any event, the objection was covered by the issues already framed and would be decided after recording evidence. The appeal preferred by the petitioners was dismissed by the Additional Deputy Commissioner on 24.09.2021 and the revision petition was also dismissed by the Additional Commissioner, Malakand Division, on 11.01.2022. A further revision preferred before the learned Member-V, Board of Revenue Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

was dismissed on 25.03.2025 with costs. Aggrieved therefrom, the petitioners have filed the instant writ petition.

6.The facts of W.P No. 925-M/2025 are that respondents No.1 to 5 instituted an application under Section 135 of the Land Revenue Act, 1967 before the Assistant Commissioner, Dir Upper, seeking partition of the property described therein. Upon appearance, the present petitioners, instead of filing a written reply to the partition application, moved an application seeking rejection thereof on the ground that the requirements of Section 135 of the Act were not fulfilled and that, in the absence of settlement record, the Revenue Authorities lacked jurisdiction to entertain the matter.

The said application was dismissed by the Assistant Commissioner vide order dated 16.06.2022. The appeal preferred by the petitioners was dismissed by the Additional Deputy Commissioner on 31.08.2023, whereas the revision petition filed before the Additional Commissioner, Malakand Division, also met the same fate vide order dated 22.02.2024.

A further revision preferred before the learned Member-V, Board of Revenue, was dismissed on 23.04.2025 with the observation that the petitioners had prematurely sought rejection of the partition proceedings without filing their reply and that the matter ought to proceed in accordance with the procedure prescribed under the Land Revenue Act. The Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

petitioners have assailed the aforesaid orders through the instant writ petition.

7.The facts of W.P No. 1652-M/2025 are that respondents No.1 to 6 instituted partition proceedings before the Assistant Commissioner in respect of the property in dispute, which were entrusted to the Tehsildar, Timergara. The present petitioners were initially not impleaded as parties, however, upon their application, they were joined in the proceedings vide order dated 17.04.2018. After appearance, the petitioners sought dismissal of the partition application.

The Tehsildar, Timergara, vide order dated 29.08.2022, accepted their objection and dismissed the partition proceedings. The appeal preferred by respondents No.1 to 6 was also dismissed by the Additional Deputy Commissioner, Dir Lower, on 02.05.2023. However, in revision, the Additional Commissioner, Malakand Division, vide order dated 05.09.2023 set aside the concurrent orders of the Tehsildar and the Additional Deputy Commissioner and revived the partition proceedings. The petitioners' further revision before the Member, Board of Revenue, was dismissed on 06.11.2025, whereafter the petitioners have invoked the constitutional jurisdiction of this Court.

8.The facts of W.P No. 169-M/2026 are that respondent No.1 submitted an application dated 31.03.2023 Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

before the Assistant Commissioner, Samar Bagh, alleging that the present petitioners had encroached upon a strip of his ancestral property measuring 9 feet in width and 300 feet in length from their adjoining purchased land and sought demarcation and removal of the alleged encroachment. The application was forwarded by the Assistant Commissioner to the SHO, Police Station Munda, for inquiry, who, through a subordinate official, conducted an inquiry, prepared a site sketch and submitted a report. Thereafter, the matter was entrusted to the Tehsildar, Munda, for further proceedings.

Upon notice, the petitioners appeared before the Tehsildar and filed a written reply contesting the claim and raising inter alia objections regarding title and jurisdiction. However, subsequently they failed to pursue the proceedings, whereafter the Tehsildar, Munda, vide ex parte order dated 20.10.2023, accepted the application of respondent No.1. Thereafter, the petitioners filed an application on 11.06.2024 seeking setting aside of the ex parte order. The said application was dismissed by the Tehsildar, Munda, vide order dated 25.09.2024 on the ground that the petitioners had earlier participated in the proceedings and the application for setting aside the ex parte order had been filed beyond the period prescribed by law. The petitioners preferred an appeal before the Additional Deputy Commissioner, Dir Lower, who, vide judgment dated Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

04.03.2025, accepted the appeal, set aside the order dated 25.09.2024 and remanded the matter for fresh proceedings after framing proper issues, including the question of jurisdiction, and recording evidence of the parties. However, in revision, the Additional Commissioner, Malakand Division, vide judgment dated 30.06.2025, set aside the appellate order and restored the order of the Tehsildar, holding that the petitioners had admittedly appeared in the proceedings, filed a written reply and thereafter absented themselves, therefore, their application for setting aside the ex parte order, having been filed after about eight months, was hopelessly barred by limitation. The petitioners' further revision before the Senior Member, Board of Revenue, was dismissed on 13.01.2026, whereafter they have invoked the constitutional jurisdiction of this Court through the instant writ petition.

9.The facts of W.P No. 648-M/2026 are that the petitioners instituted an application under Section 135 of the Land Revenue Act, 1967 before the Tehsildar, Samar Bagh, seeking partition of ancestral joint property. The application was contested by respondents No.1 and 2 on the plea that the property claimed by the petitioners was not joint property but their purchased property. The Tehsildar, however, allowed the partition application vide order dated 22.06.2023. The appeal preferred by the contesting respondents was dismissed by the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Additional Deputy Commissioner on 30.01.2024, while the revision petition filed before the Additional Commissioner, Malakand Division, was also dismissed on 27.05.2024.

Subsequently, the learned Member-V, Board of Revenue, vide judgment dated 24.02.2026 accepted the revision petition, set aside the concurrent orders of the subordinate revenue fora and held that the controversy involved a dispute regarding title requiring adjudication by a competent Civil Court before partition proceedings could be undertaken. The petitioners have challenged the said judgment through the instant writ petition.

10.We have heard the arguments of learned counsel for the parties, including the learned Additional Advocate General representing the official respondents, and perused the record with their able assistance.

11.It appears that the principal controversy in all these cases revolves around the scope and extent of jurisdiction of the Revenue Authorities to entertain and proceed with applications for partition in those areas where regular settlement record has not been prepared and maintained. The parties have also placed considerable reliance upon the judgment reported as PLD 2022 Peshawar 147 and have advanced competing interpretations thereof. It is, Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

therefore, appropriate to first examine the legal framework governing the field before adverting to the facts of each petition individually.

12.A recurring argument advanced in a number of petitions is that in the absence of settlement record, the Revenue Authorities become completely divested of jurisdiction to entertain an application for partition. The proposition, though puruasive at first glance, does not appear to be borne out from a plain reading of Section 135 of the Khyber Pakhtunkhwa Land Revenue Act, 1967. The jurisdiction of the Revenue Officer in matters of partition flows directly from Section 135 ibid, which provides as follows:

“135. Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if—

(a)at the date of the application the share is recorded under Chapter VI as belonging to him; or

(b)his right to the share has been established by a decree which is still subsisting at that date; or

(c)a written acknowledgment of that right has been executed by all parsons interested in the admission or denial thereof.”

A careful reading of the above provision leaves no room for doubt that the Legislature has envisaged three distinct situations in which the jurisdiction of the Revenue Officer may be invoked. The first situation is where the share of the applicant stands recorded in the revenue record prepared Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

under Chapter VI of the Act. The second is where the right of the applicant to a particular share has already been established through a subsisting decree. The third is where the right claimed by the applicant is acknowledged through a written instrument executed by all persons interested in its admission or denial. Significantly, the three conditions are separated by the disjunctive expression “or”, thereby indicating that fulfillment of any one of them would be sufficient to attract the jurisdiction of the Revenue Officer.

13.It follows that absence of revenue record or formal revenue settlement by itself does not automatically extinguish the jurisdiction of the Revenue Authorities in every case. Such absence merely renders clause (a) of Section 135 inapplicable. The Revenue Officer is still required to examine whether the applicant derives jurisdiction under clause (b) or clause (c) of the section. To hold otherwise would amount to rendering clauses (b) and (c) redundant, which is impermissible while interpreting a statutory provision. The above view finds support from the judgment rendered by this Court in Mian Shahzada Jan and others V. Muhammad Israr and others reported in PLD 2022 Peshawar 147 wherein, after examining Section 135 of the Act, it was held that an application for partition may competently be entertained if any one of the three conditions enumerated therein exists. The Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

learned Judge in Chambers observed that where revenue record is not available, the Revenue Officer must still examine whether there exists a subsisting decree determining the share of the applicant or a written acknowledgment of such right executed by all concerned persons. For facility of reference, the relevant observations recorded in the aforesaid judgment are reproduced herein below:

“10. If any of the above mentioned three conditions are available to an applicant, he may file an application for partition of his share in joint immovable property, which may be proceeded by the revenue officer according to rest of the provisions of the Revenue Act and Rules framed there-under, otherwise an application cannot be entertained by a revenue officer. In all the connected cases, the revenue record, in respect of the property sought to be partitioned, has neither been prepared nor maintained under Chapter VI of the Revenue Act. The first condition could not be met in any of these cases. The other two conditions remain i.e. determination of share by a decree of Court or a written acknowledgement of the right to such share, which are needed to be looked into, in the perspective of facts of each case separately, and such exercise shall be taken in latter part of this judgment. The question can therefore be answered easily by referring to Section 135 of the Revenue Act and clarifying that only in case of existence of any of the three situations given in Section 135 of the Revenue Act, an application may be entertained by a revenue officer for partition of joint immovable property, otherwise he would be divested of the jurisdiction to entertain such an application.”

The judgment, therefore, does not lay down an inflexible rule that every partition application in a non- settlement area must necessarily fail rather, the determining Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

factor remains the existence or otherwise of any of the three jurisdictional foundations contemplated by Section 135 of the Act.

14.Equally important is the distinction between a genuine dispute regarding title and a dispute relating merely to implementation of admitted rights. Where determination of entitlement itself requires adjudication of complicated questions of ownership, inheritance, tribal rights or competing claims of title, the matter ordinarily falls within the domain of the Civil Court. However, where the shares of the parties already stand determined through a subsisting decree, written acknowledgment, admitted arrangement or other legally recognizable source, the Revenue Officer is not divested of jurisdiction merely because one of the parties subsequently raises an objection regarding title.

15.Another aspect which requires emphasis is that the judgment reported as PLD 2022 Peshawar 147 was rendered on the peculiar facts of the cases before the learned Single Bench. In some of those cases neither revenue record existed nor was there any subsisting decree determining specific shares of the parties, nor any written acknowledgment satisfying the requirements of Section 135 of the Act. It was in that backdrop that the Revenue Authorities were found to have exceeded their jurisdiction. The ratio of the said judgment Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

cannot be extended to a situation where one of the jurisdictional conditions expressly recognized by Section 135 is otherwise available on the record.

16.Yet another allied aspect requiring consideration is the effect of a plea regarding title raised during partition proceedings. In this regard, Section 141 of the Khyber Pakhtunkhwa Land Revenue Act, 1967 assumes significance.

The provision does not contemplate that the jurisdiction of the Revenue Officer stands automatically ousted whenever one of the parties merely raises an objection regarding ownership or title. Were such a proposition to be accepted, every partition proceeding could be frustrated by a simple assertion of title at the outset. The Revenue Officer is, therefore, required to examine the nature of the objection and determine whether it discloses a bona fide and substantial dispute of title incapable of adjudication within the framework of the Act. It is only where the controversy genuinely pertains to determination of independent title and cannot be resolved on the basis of the material contemplated by Section 135 of the Act that the parties may be left to approach a competent Civil Court.

Conversely, where the dispute essentially relates to implementation of admitted, acknowledged or otherwise established rights, the Revenue Authorities are not divested of Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

jurisdiction merely because an objection regarding title has been raised.

17.The touchstone for adjudication of the connected petitions, therefore, is not merely the existence or non- existence of settlement record. The real inquiry is whether, on the facts of each case, any of the three conditions envisaged by Section 135 of the Act were available so as to enable the Revenue Authorities to assume jurisdiction and proceed with the partition application. It is in the light of this principle that the facts of each petition are now to be examined.

18.W.P No. 448-M/2026

In the present petition, the partition proceedings were initiated by the petitioners under Section 135 of the Act of 1967 in respect of the property situated in village Razagay, District Dir Upper. The Additional Assistant Commissioner declined to proceed with the matter primarily on the premise that questions of title were involved. However, the appellate authority, after obtaining a report through a commission and examining the material available on record, came to the conclusion that the matter required continuation of partition proceedings and accordingly remanded the case for further action. The said view was affirmed by the Additional Commissioner, Malakand Division. The learned Member-V, Board of Revenue, while exercising revisional jurisdiction, Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

reversed the concurrent findings mainly on the ground that in the absence of settlement record the Revenue Authorities lacked jurisdiction and that the parties were required to seek determination from the Civil Court. Such approach does not appear to be in consonance with the true import of Section 135 of the Act. As already discussed, absence of revenue settlement per se is not the sole determinative factor. The Revenue Authorities are required to examine whether the case falls within any of the three situations contemplated by clauses (a), (b) or (c) of Section 135 ibid. The revisional authority appears to have treated absence of settlement record as conclusive against jurisdiction without undertaking the inquiry mandated by law. The appellate authority had already found sufficient material on record warranting continuation of the proceedings and had remanded the matter for carrying the partition proceedings to their logical conclusion. At that stage, no final adjudication regarding title had been undertaken. In such circumstances, the learned Member Board of Revenue was not justified in terminating the proceedings altogether merely on a broad assumption that a dispute of title existed.

The impugned order, therefore, suffers from misapplication of the principle laid down in PLD 2022 Peshawar 147 and cannot be sustained. Accordingly, W.P No. 448-M/2026 is admitted and allowed. The judgment dated 27.01.2026 passed by the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Member, Board of Revenue is set aside and the orders passed by the Additional Deputy Commissioner and the Additional Commissioner are restored. C.M No. 989-M/2026, however, the applicants are at liberty to seek their impleadment through an application before the court of first instance.

19.W.P No. 1141-M/2022

The controversy in this petition stands on a different footing. The record reveals that the claim of the applicants was founded upon the partition deed dated 07.05.1968 and the proceedings culminating therefrom. The Additional Assistant Commissioner, after framing specific issues and recording evidence of the parties, recorded categorical findings that the disputed property remained jointly owned by the parties in equal shares and had not yet been partitioned. The Revenue Court further found that the applicants were owners to the extent of one-fourth share and that the property sought to be partitioned had consciously been left undivided amongst the four branches of the family. The findings recorded by the Revenue Court were not based merely upon the assertions of the applicants rather, the Court extensively relied upon the documentary record, the partition deed dated 07.05.1968, admissions made by various respondents and the evidence adduced by the parties. It was specifically found that the contesting respondents had failed to Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

produce any reliable evidence showing that the property in dispute had already been partitioned or that the proceedings initiated by the applicants were otherwise incompetent. The appellate authority independently re-examined the matter and concurred with the findings of the trial Revenue Court.

Particularly significant is the fact that a number of respondents filed admitting replies, while even the contesting respondents acknowledged the existence of the earlier arrangement and the joint nature of the property. The cumulative effect of such admissions and the written arrangement relied upon by the parties brings the matter substantially within the ambit of clause (c) of Section 135 of the Act, namely the existence of a written acknowledgment regarding the right claimed by the applicants. The case is, therefore, materially distinguishable from the situations considered in PLD 2022 Peshawar 147 where neither a subsisting decree determining specific shares nor a written acknowledgment satisfying the requirements of Section 135 was available on record. The revisional authorities, while upsetting the concurrent findings of the courts below, failed to properly appreciate the evidentiary value of the partition deed, the admissions of the parties and the findings regarding continued joint ownership. Their approach, therefore, cannot be sustained in law. Consequently, W.P No. 1141-M/2022 is allowed. The impugned revisional Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

orders are set aside and the orders dated 21.06.2019 and 09.10.2019 passed by the Revenue Officer and the appellate authority respectively are restored. Likewise, C.M No. 365- M/2023 is allowed and the documents annexed therewith are treated to be part and parcel of the writ petition. The Tehsildar concerned shall proceed with the partition proceedings strictly in accordance with law and conclude the same expeditiously.

20.W.P No. 1264-M/2023

At the outset, it is noted that respondents are not before the Court while Mr. Aziz Ul Haq Advocate, who was representing respondent No.1, has moved C.M No. 564- M/2026 for withdrawal of his Wakalat Nama under the instruction of respondent No.1 not to pursue the case on his behalf. The application is allowed and the Wakalat Nama accordingly stands withdrawn. Since, the respondents have not bothered to engage another counsel, therefore, this petition is decided on the basis of available record after hearing learned counsel for the petitioners and learned A.A.G.

In this petition, the respondents instituted partition proceedings before the Revenue Authorities, which were contested by the present petitioners primarily on the plea that the property had already been partitioned amongst the legal heirs of their predecessor, late Asmat Ullah. The Revenue Officer framed issues, recorded evidence and, after Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

evaluating the material available on record, accepted the partition application. The appellate authority, while maintaining the entitlement of the parties to seek partition, remanded the matter for appointment of a commission and completion of partition proceedings in accordance with law.

The record does not reveal that the Revenue Authorities finally adjudicated any complicated question of title falling exclusively within the domain of the Civil Court. Rather, the authorities merely proceeded with the partition proceedings after recording a prima facie satisfaction regarding the joint nature of the property. Whether the plea of previous partition was ultimately correct or otherwise was itself a matter requiring factual determination on the basis of evidence. Such inquiry squarely fell within the proceedings already pending before the Revenue Officer. The petitioners, instead of allowing the proceedings to attain their logical conclusion before the higher fora of the revenue hierarchy, have invoked the constitutional jurisdiction of this Court at an interlocutory stage. No jurisdictional defect, material illegality or perversity in the concurrent approach of the Revenue Authorities has been pointed out. The impugned orders, therefore, do not warrant interference in exercise of constitutional jurisdiction.

Accordingly, W.P No. 1264-M/2023 is dismissed. The Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Revenue Officer shall proceed with the partition proceedings in accordance with law.

21.W.P No. 784-M/2025:

The distinguishing feature of this petition is that the controversy regarding jurisdiction of the Revenue Authorities had already travelled through the entire revenue hierarchy and even before this Court in W.P No. 313-M/2018.

The challenge raised by the petitioners at that stage was founded upon substantially the same objection, namely that in the absence of settlement record the Revenue Authorities could not entertain partition proceedings. The said contention did not find favour with this Court and the writ petition was dismissed on 07.02.2019. Following restoration of the partition proceedings, the Revenue Officer framed issues on 08.06.2021, including issues relating to title and ownership.

Thereafter, relying upon the judgment reported as PLD 2022 Peshawar 147, the petitioners again sought dismissal of the partition application. The Revenue Officer, the appellate authority, the revisional authority and ultimately the Board of Revenue concurrently held that the objection could appropriately be examined during trial of the partition proceedings and that no ground existed for outright rejection of the application at that stage. The approach adopted by the revenue hierarchy does not suffer from any legal infirmity.

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

The judgment reported as PLD 2022 Peshawar 147 does not mandate automatic dismissal of every partition application instituted in a non-settlement area. Rather, the Revenue Officer is first required to examine whether any of the jurisdictional foundations contemplated by Section 135 of the Act exist. Since issues had already been framed and evidence was yet to be recorded, the authorities below have rightly declined to terminate the proceedings summarily. The petitioners, in substance, have sought a second determination of a jurisdictional objection which had substantially been examined earlier. Such course could not have been permitted.

The learned Member-V, Board of Revenue was, therefore, justified in maintaining the orders passed by the subordinate fora. Consequently, W.P No. 784-M/2025 is dismissed. The Revenue Officer concerned shall proceed with the partition proceedings from the stage already reached and conclude the matter strictly in accordance with law.

22.W.P No. 925-M/2025:

In the instant petition, the respondents had instituted an application under Section 135 of the Act before the Assistant Commissioner seeking partition of the property in dispute. Significantly, instead of filing a written reply to the partition application and placing their defence on record, the petitioners immediately sought rejection of the proceedings on Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the premise that in the absence of formal settlement the Revenue Authorities lacked jurisdiction. The application seeking rejection of the partition proceedings was dismissed by the Assistant Commissioner vide order dated 16.06.2022 and the said view was successively maintained by the Additional Deputy Commissioner, the Additional Commissioner and ultimately the learned Member-V, Board of Revenue vide impugned judgment dated 23.04.2025. The revisional authority observed that the petitioners had sought premature termination of the proceedings without even permitting the Revenue Officer to examine whether the requirements of Section 135 of the Act stood fulfilled. This Court finds no illegality in the approach adopted by the authorities below. Whether the applicants derive their claim from a subsisting decree, written acknowledgment or any other legally recognized source including the plea of inheritance is a matter which necessarily requires examination of the pleadings and material produced by the parties. Such inquiry could not have been undertaken in the absence of a written reply and without affording the parties an opportunity to substantiate their respective claims. The interpretation advanced by the petitioners would result in dismissal of every partition application filed in a non-settlement area at the very inception, irrespective of whether clauses (b) or (c) of Section 135 of the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Act are attracted. Such interpretation is plainly inconsistent with the scheme of the statute and the principle discussed earlier. The learned Member, Board of Revenue, has therefore, committed no jurisdictional error in declining to terminate the proceedings at the preliminary stage. Accordingly, W.P No.

925-M/2025 is dismissed. The Revenue Officer shall proceed with the partition application in accordance with law and determine the rights of the parties after affording them full opportunity of producing evidence.

23.W.P No. 1652-M/2025:

In this petition, the Tehsildar, Timergara vide order dated 29.08.2022 and the Additional Deputy Commissioner vide order dated 02.05.2023 had taken the view that the partition proceedings initiated by respondents No.1 to 6 and others were not maintainable and consequently dismissed the application. However, the Additional Commissioner, Malakand Division, in revision, set aside the said orders and revived the partition proceedings, which view was subsequently affirmed by the learned Member-V, Board of Revenue, vide impugned judgment dated 06.11.2025. The record reveals that the revisional authorities did not finally determine the rights of the parties nor did they direct partition of the property. They merely held that the proceedings ought not to have been terminated at the very initial stage and that Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the question whether the applicants fulfilled the requirements of Section 135 of the Act required examination during the course of proceedings. Such approach is consistent with the statutory scheme. As already observed, the mere absence of settlement record is not sufficient to non-suit an applicant seeking partition. The Revenue Officer is under a legal obligation to examine whether the applicant derives entitlement from any of the situations contemplated by clauses (a), (b) or (c) of Section 135 of the Act. The orders passed by the Tehsildar and the appellate authority effectively foreclosed such inquiry without proper adjudication of the relevant questions. The Additional Commissioner and the Board of Revenue, therefore, have rightly restored the proceedings to enable determination of the controversy in accordance with law. No jurisdictional defect, perversity or material illegality has been pointed out warranting interference by this Court in exercise of constitutional jurisdiction. Consequently, W.P No.

1652-M/2025 is dismissed. The Revenue Officer concerned shall proceed with the partition proceedings and decide the matter strictly in accordance with law after recording evidence of the parties.

24.W.P No. 169-M/2026:

This petition stands on an entirely different footing. It does not arise out of partition proceedings under Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Section 135 of the Act but originates from proceedings relating to demarcation and alleged encroachment. The principal controversy before the revenue hierarchy was whether the petitioners had established sufficient grounds for setting aside the ex parte order dated 20.10.2023. The record reveals that the petitioners appeared before the Tehsildar, filed a written reply and actively participated in the proceedings.

Thereafter, they discontinued their appearance, resulting in the ex parte order. Their application seeking setting aside of the ex parte proceedings was filed after considerable delay and was dismissed by the Tehsildar. Although the appellate authority took a lenient view and remanded the matter, the Additional Commissioner as well as the Member-V, Board of Revenue concurrently held that the application was hopelessly barred by limitation and that no satisfactory explanation for the delay had been furnished. The controversy in the present petition is thus governed primarily by principles relating to ex parte proceedings and limitation. The elaborate arguments advanced regarding Section 135 of the Act and PLD 2022 Peshawar 147 have little relevance to the determination of the issues involved herein. The petitioners have failed to point out any jurisdictional defect or patent illegality in the concurrent findings recorded by the revisional authorities. Accordingly, W.P No. 169-M/2026 is dismissed and the impugned orders Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

passed by the Additional Commissioner, Malakand Division and the Member-V, Board of Revenue are maintained.

25.W.P No. 648-M/2026:

The petitioners instituted partition proceedings under Section 135 of the Act claiming that the property in dispute was jointly owned and possessed by the parties. The application was contested by respondents No.1 and 2 on the plea that the property was their exclusive purchased property.

The Tehsildar, after examining the material available on record, accepted the partition application. The appellate and revisional authorities, namely the Additional Deputy Commissioner and the Additional Commissioner, independently reappraised the matter and concurred with the findings recorded by the Tehsildar. The learned Member-V, Board of Revenue, however, reversed the concurrent findings vide judgment dated 24.02.2026, and held that a dispute regarding title existed which required adjudication by a Civil Court. The approach adopted by the Board does not appear to be sustainable. The existence of an objection regarding title does not by itself oust the jurisdiction of the Revenue Authorities. The real question is whether the claim set up by the applicants is supported by any of the jurisdictional foundations contemplated by Section 135 of the Act and Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

whether the controversy is capable of being examined within the framework of partition proceedings. The three authorities below had concurrently concluded that the proceedings were maintainable and that the matter should proceed further in accordance with law. The learned Member, Board of Revenue upset those findings without demonstrating that the conclusions reached by the subordinate fora were perverse, arbitrary or based on misreading of the record. The impugned judgment, therefore, reflects an unduly expansive application of the principle enunciated in PLD 2022 Peshawar 147. For these reasons, W.P No. 648-M/2026 is allowed. The judgment dated 24.02.2026 passed by the learned Member-V, Board of Revenue, is set aside and the orders passed by the Tehsildar, the Additional Deputy Commissioner and the Additional Commissioner are restored. It may, however, be observed that the precise nature of the plea regarding purchased ownership set up by respondents No.1 and 2 is not fully reflected in the impugned judgment. If the dispute ultimately turns out to involve determination of independent title wholly outside the scope of partition proceedings, the Revenue Officer shall remain competent to pass such order as may be warranted by law. The restoration of proceedings shall not be construed as a Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

final adjudication upon the merits of the rival claims of ownership.

26.There is no order as to costs.

Announced Dt:20.05.2026 -Sd-

JUDGE

-Sd-

JUDGE

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah