Shah Karim Bakht etc vs Mst:Jehan Zeba etc

`JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P. No. 352-M of 2015

JUDGMENT

Shah Karim Bakht & one another vs Mst. Jehan Zeba & others.

Date of hearing: 18.5.2016.

Petitioners:- ( Shah Karim Bakht & 1 another) by Mr. Atlas Khan Dagai, Advocate.

Respondents: (Mst. Jehan Zeba & others) by Mr. Rafiq Ahmad, Astt: Advocate General and Mian Muhammad Riaz, Advocate.

MUHAMMAD YOUNIS THAHEEM, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Shah Karim Bakht & 1 another, the petitioners have challenged the judgments/orders passed by the revenue hierarchy and have made a prayer that the same to be declared illegal, without lawful authority and of no legal effect upon the rights of petitioners, whereby application of the respondent No. 1 for partition of suit land has been concurrently allowed.

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2.Brief facts of the case are that respondent No. 1, Mst. Jehan Zeba filed partition application under section 135 of the Land Revenue Act, 1967 in the Court of learned Assistant Commissioner, Kabal, Swat for partition of suit land fully detailed in the heading of the application. The defendants/petitioners were summoned, who submitted their written reply, wherein they raised several objections both legal and factual, the learned Court below after hearing arguments of the parties vide judgment/order dated 30.4.2013 accepted the application of respondent No. 1 in respect of partition of land and Tehsildar Kabal was appointed as local commissioner to submit complete report regarding suit khasra numbers and to give full description of the trees, graveyard, mosque, Ghairmumkin Rasta/passage and improvements made at the suit land. Against the same, the petitioners filed an appeal, which was dismissed by the learned District Collector/Deputy Commissioner Swat vide judgment/order dated 05.3.2014. Still Nawab

feeling aggrieved, the petitioners filed revision petition before learned Additional Commissioner, Malakand, which was also dismissed vide judgment/order dated 27.5.2014, whereafter, the petitioners took the matter to the Court of Senior Member Board of Revenue, Khyber Pakhtunkhwa Peshawar, but there too, their request was answered in negative vide impugned judgment/order dated 18.02.2015, hence, instant writ petition.

3.Valuable arguments of learned counsel for the parties heard and available record perused with their able assistance.

4.From the perusal of the record, it reveals that the parties inherited the property in question from their predecessor namely Sultan, who had one son Ali Akbar and one daughter Mst. Jehan Zeba, she filed partition application on 15.3.2013, which was contested by present petitioners by filing replication, wherein they raised objection that as the question of title is involved by taking plea that Mst. Jehan Zeba has given her share as "Bakhsish" Nawab

to them vide Iqrar-NamaJat dated 28.3.1982 and 01.10.1985 and in this respect her daughters have instituted a civil suit for declaration on the basis of alleged written deeds dated 28.3.1980 and 01.10.1985 alongwith plea of adverse possession.

5.The learned Additional Assistant Commissioner, after hearing both the parties, accepted the application of respondent No. 1 vide his order dated 30.4.2013 and appointed a commission for partition of land under the provisions of West Pakistan Land Revenue Act, 1967. On the denial of the respondent that she has not given her Shari shares of inherited property in partition to her brother and the alleged documents/deeds are fake, fictitious, unregistered and have got no legal sanctity. This order was challenged by the present petitioners by filing appeal before the learned Deputy Commissioner, District Swat, who after hearing of parties vide his judgment/order dated 05.3.2014 hold that the applicants are joint owners in the kattahjat and Nawab

partition under the law is taken place amongst the joint owners, therefore, the learned A.A.C has correctly continued the process of partition by dismissing the appeal. Against the same order of Deputy Commissioner/Revenue Appellate Court, the present petitioners filed revision petition before Additional Commissioner, Malakand Division at Swat, who after hearing also dismissed the same vide judgment/order dated 27.5.2014. Still not satisfied, the present petitioners preferred revision petition before the Member-II, Board of Revenue Khyber Pakhtunkhwa, which also met the same fate vide judgment/ order dated 18.02.2015 as under:-

" Record of the case would reveal that both the parties are joint co- owner and co-sharer. The request of the present respondent Mst. Jehan Zeba is right to separate her shares and rights from the joint property. Naqshajat Alif, Bay and Jeem have been prepared in accordance with the law and available record.

Moreover, Ahle commission has been appointed by the trial Court to

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carry-out partition. The order dated 30.4.2013 by the trial Court is in accordance with law and has rightly been maintained by the appellate as well as revisional Courts. In the circumstances, I have no option but to dismiss the revision petition and maintain the orders passed by the lower Courts.

6.The present petitioners feeling still dissatisfied had challenged all the judgments/ orders of the revenue hierarchy through instant writ petition.

7.Under section 135 of the West Pakistan Land Revenue Act, in joint property every co-sharer or co-heir can apply for partition of his/their joint land under the law. The relevant portion of law is reproduced as below:

Section 135: Application for partition. 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 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

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

8.While the arguments of learned counsel for the petitioners that under section 141 of the Act ibid that till resolution of question of title by the Civil Court, partition of suit land be stayed and partition proceedings could not be kept continued till determination of question of title, the same contention is not tenable in the eye of law, as this Court has to see as to whether civil Court on the strength of two alleged unregistered and highly objected written deeds can halt the partition proceedings, as the respondents are taking benefits of the joint property in shape of produce, while at the same time putting the applicant/respondent No.

1 busy in endless civil litigation and deprive her from getting her lawful Shari share. Under section 52 of the Act ibid strong presumption of correctness is attached to the entries in revenue record, unless contrary is proved or a new entry is lawfully Nawab

substituted. The relevant portion of the same provision of law is reproduced as under:- Section 52 presumption to correctness of the record. Any entry in a record- of-rights shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.

9.The arguments of learned counsel for the petitioners that the sons of Abdul Kabir Khan had filed civil suit for establishing their title in respect of suit land allegedly given to them in shape of بخشش or alleged alienation, which is still pending disposal, so present partition proceedings are nullity in the eye of law and hence be halted/stayed till decision of the above-referred case in view of Sections 52 & 141 of the Act ibid. The same contention of learned counsel is not tenable for the reason that the petitioners have to first establish their title and thereafter the provisions of section 53 of the ibid Act are to be invoked by making entries in the revenue record and if the entries in the revenue record are existing in the name of respondent No. 1, Nawab

the petitioners could not take refuge in view of provisions of section 141 by first resolving the question of title and till decision of civil suit partition proceedings be held in abeyance or decline an lawful owner her Shari rights particularly a ladies or in other words to deprive her from enjoying usufruct of the jointly owned property. Learned counsel for the petitioners submitted various judgments of the Hon'ble Supreme Court of Pakistan as well as this Court titled as 2001 CLC 1847, 1996 MLD 1102, PLD 2016 page 8, 2002 CLC 739 and 1986 SCMR 94.

10.All the above referred judgments are altogether different and are not attracted to the facts and circumstances of the present case, so, could not be pressed into service. In the instant case, the legal heirs of her brother Abdul Kabir Khan are male members and are taking benefits/usufruct of the jointly owned property and want to halt/suspend the partition proceedings by one way or the other and if they are succeeded in getting decree in their favour Nawab

up to the august Supreme Court of Pakistan, then their names will be entered in the revenue record in view of Section 53 of the Act Supra and then the partition application on behalf of the respondent No.

1 would not come in their way, so before having decree in their favour, they cannot raise any plea in respect of halting/staying of partition process under the law.

11.This Court after giving deep thoughts to the facts and circumstances and arguments advanced by learned counsel for the parties as well as law on the subject, reaches to the conclusion that the revenue hierarchy has acted in accordance with law, while disposing of the application of respondent No.

1 for partition of joint land and thus the findings arrived at by the learned fora below are exceptional in nature and call for no interference by this Court.

12.Learned counsel for the petitioners failed to point-out any illegality or miscarriage of justice caused to the petitioners by the decisions of revenue hierarchy, rather holding of partition proceedings for Nawab

such long period has definitely caused inconvenience to the respondent No. 1.

13.Thus, in view of what has been

discussed above, this petition being bereft of merits stands dismissed, however, the learned Assistant Commissioner concerned is directed to complete the partition proceedings as early as possible preferably within two (2) months.

Announced.

Dt: 18.5.2016

JUDGE

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