Noor Jan and others Vs Mst. Buzarga through Legal Heirs and others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P. No.2157-P/2025 Noor Jan and others Vs.

Mst. Buzarga through Legal Heirs and others Date of hearing 25.09.2026 For Petitioner(s): Mr. Inam Ullah Khan Hoti Advocate on video link.

For Respondent(s): Mr. Umar Shahzad Advocate on video link.

For State: Mr. Muhammad Furqan AAG for the provincial government.

JUDGMENT

WIQAR AHMAD, J. Instant petition has been filed by petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers:

“It is therefore, humbly submitted that by acceptance of the instant Writ petition in hand, the impugned order of MBR-JudI-I (KPK) Peshawar dated 14-10-2024 passed in case No.477/MBR- 1/2021, the impugned order of the Additional Assistant Commissioner/AAC-II Mardan dated 19- 03-2021 and the impugned order of Additional Commissioner Mardan dated 16-08-2021 and others may kindly be set-aside and the application of the respondents for consolidation of khata jaat dated 18-02-2021 and 04-03-2021 may be dismissed further the objections / applications filed by petitioners upon the maintainability of the suit dated 15-02-2021 and 19-02-2021 may be decided further relief may be awarded according to justice in favour of petitioners and the correct order of Additional Deputy Commissioner dated 13-04-2021 may kindly be kept maintain”.

2.Brief facts of the case, as stated in instant petition, are that the private respondents

initiated partition proceedings before the learned Revenue Court, where a mode of partition was prepared and proceedings regarding consolidation of Khata Jaats and cancellation of previous mutations were undertaken. The petitioners filed objections dated 15.02.2021 and 19.02.2021, seeking consideration of the correct record relating to legal heirs and inheritance; however, their objections statedly remained undecided.

Meanwhile, the private respondents filed applications for consolidation of Khata Jaats, one of which was eventually allowed by the Revenue Court. The petitioners challenged said order before Additional Deputy Commissioner, Mardan, who accepted their appeal vide order dated 13.04.2021, set aside the order dated 15.03.2021 passed by the Additional Assistant Commissioner-II, Mardan. The private respondents thereafter filed a revision before the Additional Commissioner, Mardan, which was accepted vide detailed order dated 16.08.2021. The petitioners challenged said order through Revision Petition No.477/MBR- I/2021 before the Member (Judicial-I), Board of W.P. No.2157-P/2025

Revenue, Khyber Pakhtunkhwa, which was dismissed vide order dated 14.10.2024. Feeling aggrieved, petitioners have invoked constitutional jurisdiction of this Court through instant writ petition.

3.Arguments heard and available record perused.

4.Perusal of record reveals that petitioners are aggrieved of the order passed by additional commissioner Mardan (upheld by SMBR) revenue hierarchy, whereby application of respondents for consolidation of all the Khatas, (in which the contesting parties were co-owners) of the property, was allowed in the partition proceedings. It is the case of petitioners that separate partition proceedings should be conducted in respect of each Khata amongst the same parties. Learned counsel for petitioners vehemently contended that the partition should be conducted separately for each Khata and that its consolidation was not warranted under law. In rebuttal, learned counsel for respondents stated that parties are co-owners in all the Khatas which have been consolidated and that there was no illegality in such W.P. No.2157-P/2025

consolidation; therefore, impugned orders are not open to question.

5.Section 135 of the Land Revenue Act, 1967, (hereinafter to be referred as the Revenue Act) provides that any joint owner of land may apply to a Revenue Officer for partition of his share in the land if, on the date of application, the share is recorded in Chapter VI as belonging to him, or his right to the share has been established by any subsisting decree or order, or a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof. Section 136 of the Act provides for restrictions and limitations on partition, including exceptions relating to places of worship and burial grounds. The section also empowers the Revenue Officer to refuse partition of any embankment, watercourse, well or tank, grazing ground, or any land which is occupied as a site for a town or village, if, in the opinion of the Revenue Officer, partition of such land may be likely to diminish the utility for the users.

6.Section 137 of the revenue Act provides for issuance of notice to all recorded co-sharers.

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Section 138 provides for addition of parties, while section 139 of the Act confers power upon the Revenue Officer to disallow an application for partition. Under section 140, the Revenue Officer is required, on admission of the application, to ascertain whether any question as to title in the property sought to be partitioned, exists. Section 141 provides for disposal of questions of title in the property to be divided, while section 142 of the revenue Act provides for disposal of other similar questions.

Section 143 provides for property which may be excluded from partition. Thereafter, sections 144, 145 and 146 provide for matters to be dealt with after passing the order of partition.

7.It is important to note that, in all these provisions, nowhere any requirement exists that a Revenue Officer should conduct separate partition proceedings for separate Khatas. The provisions consistently refer to “joint property”.

If the parties are co-owners in more than one Khata, there is no bar to consolidating such Khatas. In fact, the better course would be to consolidate such Khatas so as to avoid injustice to any co-owner. The entire co-owned property W.P. No.2157-P/2025

should be separated and each person should be put in possession of the property he owns. This would also be beneficial in avoiding fragmentation of the property of a single owner into small pieces in different Khatas. The impugned order also contains the reason that, if partition is separately effected in different Khata numbers, it would result in

fragmentation of the co-owned property into very small pieces which would be of little use to the owners. This was, therefore, found to be a proper exercise of jurisdiction by the Revenue Officers below in consolidating all the Khatas in the partition proceedings where all the parties were co-owners. Honorable Lahore High Court, while rendering its judgment in the case of Khan Khalid Tasleem Khan and others Vs Akhtar Ali and others, reported as 2006 MLD 830, has also held that Khatas are maintained for revenue purposes and do not, by themselves, affect the rights of the parties in the total land owned by them. In said case, the land owned by a deceased predecessor and devolved upon his successors in four different Khatas was held to constitute one corpus, and it was W.P. No.2157-P/2025

held that a brother's sale of property in one Khata, according to his entitlement (in the inherited share from the common predecessor in all four Khatas) was valid. For ready reference, relevant observations of the Honorable Court are reproduced herein below:

“7. The case of the petitioners argued before me, is that the learned appellate Court has proceeded on the erroneous premise that the land, which is subject- matter of the present litigation, was comprised in one Khata and it was such Khata alone which determined the entitlement of the vendor Noor Hussain. This premise is misconceived. The Revenue Record and the division of land into Khatas within a revenue estate is only meant for certain procedural and revenue, purposes. If a landowner owns land in different Khatas and the said Khatas are also contiguous, the mere fact that the total land is comprised in different Khatas is not of material effect considering that possession of the suit properties is with the petitioners and respondent No.17 as vendees.

8.In the present case, it is evident from Exh.P-1, Exh.D-2, Exh.D-3 and Exh.D-4 that the land in the four Khatas, mentioned above, was in Nal Chah Imamdinwala showing that the total land owned by Bathu deceased was in a compact block. In these circumstances, the entitlement of Noor Hussain had to be determined with reference to the four Khatas and not with reference to one Khata alone.

Further ahead in said judgment it was also held;

10.In my opinion, this question is not of material significance because of the circumstances mentioned above, which show that the three brothers inherited land measuring 123 Kanals, 9 Marlas from Bathu deceased. The respondents/plaintiffs have picked up one Khata alone and have confined their assertions on the basis of the said one Khata which, in all, measured 19 Kanals, 16 Marlas. Proceeding on the premise discussed above viz. that the Khatas are only meant for some Revenue purposes and do not affect the right of the parties in the total land A comprised in the four Khatas, which were part of the estate inherited by the three brothers, it follows that the disputed sales made by Noor Hussain were not in excess of his entitlement.

11.I now consider the appellate judgment which also proceeds on the basis of the land comprised in one Khata alone which finds mention in the jamabandi (Exh.P-1). The learned appellate Court has not taken note of the other Khatas, mentioned above, and the land owned by the three sons of Bathu in the same. Khata No. 165, in the circumstances of the present case, cannot be seen in isolation from Khatas Nos.3, 5 and 110. The situation in the present case is no different from the case where co-sharers in one Khata privately W.P. No.2157-P/2025

partitioned the said khata by taking separate Khasra numbers comprised in the Khata, or sell specific khasra numbers. It is the entire khata in such circumstances which then needs to be examined. Likewise, in the present case, it is the entire property B which originally was owned by Bathu deceased in the four Khatas which has to be taken into account.

12.In addition to the above, learned counsel for the petitioners pointed out that the respondents/plaintiffs could only have filed a suit for partition of the Khatas in question and it is in partition proceedings that the entire matter could have been sorted out. This is a valid submission, particularly in view of the fact that not only Noor Hussain, but even Gulab Din (predecessor of the respondents/plaintiffs) had also alienated property out of his inherited share. One instance of such alienation is Mutation No.547 (Exh.D-5), whereby Gulab Din had sold 3 Kanals of land out of one khata. As a result, the petitioners and other outsider vendees became co-owners in the khata and the rights of all co-owners could only have been decided through a partition of the khatas in question.

8.Although the ratio decidende above

mentioned judgement is not directly applicable to facts of the case in hand, however the wisdom may be followed from the reasoning and

observation recorded in said judgment

regarding the fact that entitlement of joint owners should be seen in the corpus even if the co-owned property lies in different Khatas.

While separating respective shares of the parties it was also found more appropriate that the co-owned property is considered and accordingly a partition is effected where all the co-owners get their due entitlement in the shape of their separate share in possession. It would also be in the interest of the respective co-owners that they received their separate share in a consolidated form so far as

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practicable and so long as it is adjustable while keeping in view the settled principals of partition more important among which is to divide the property in accordance with its value i.e. higher value and lower value.

9.In light of what has been discussed above, the impugned orders were found to have been passed in exercise of lawful jurisdiction and in an appropriate manner, after affording due opportunity of hearing to the parties. The reasoning adopted in the impugned decisions was also found to be in accordance with law, reasonable and appropriate. Instant constitutional petition was, therefore, found to be devoid of merit and is accordingly dismissed.

Announced

--sd--

JUDGE

(SB)Hon’ble Mr. Justice Wiqar Ahmad J.

*Atif Zafar JSS*

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