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Revision Side No. 22 of 1954‑55, decided on 10^th February 1956, District Gujranwala.

S. 117 ‑Partition‑Shamilat land reserved for cattle‑grazing not partible according to entry in Shart Wajib‑ul‑arz‑ Whether a question of title.

Objection was taken to partition of shamilat land stated to be reserved for cattle grazing, on the strength of an entry in the Shart Wajib‑ul‑arz of the estate that such land was not partible.

Held, that the objection raised a question of title and must be dealt with as such under section 117, Punjab Land Revenue Act (XVII of 1887).

S. 117 ‑Partition‑Question of title‑Procedure to be followed by Assistant Collector‑Ordering a party to file a plaint before Revenue Officer ‑Illegal‑Question should be decided by striking issues raised from application for partition and pleas of objectors ‑Direction by Collector in appeal that Assistant Collector should himself determine question of title‑Legality doubted.

On a question of title being raised, the Assistant Collector declined to proceed with partition. On appeal, the Collector directed the Assistant Collector to determine himself the question of title involved, and remanded the case. The Assistant Collector thereupon ordered the objectors to file a plaint and, on their failure, proceeded with the case and sanctioned a mode of partition.

Held, that the procedure adopted by the Assistant Collector whereby he continued partition proceedings on failure of the objectors to file a plaint was against law. The proper procedure in such circumstances was to have struck issues on the basis of the application for partition and the pleas by the other party and to decide the question of title in accordance with the procedure followed by Civil Courts.

Held further, that it was doubtful whether a direction by the Collector that the question of title be determined by the Assistant Collector himself, was strictly in accordance with law.

‑This is a revision petition against the order of the Commissioner, Lahore Division, dated 8th June 1955, by which he declined to interfere in partition proceedings relating to the shamilat of village Wayanwali, district Gujranwala. Without going into the details of this protracted litigation, which started on the 13th June 1939. the material facts for coming to .a decision of this revision petition are as follows :-

In the original partition proceedings, a question of title was raised on the strength of entries in the Shart Wajib‑ul arz of the estate which precluded partition of shamilat land stated to be reserved as cattle grazing ground. The Assistant Collector declined on the 10th June 1990, to proceed further till this question of title was determined. The Collector. on appeal, decided on the 13th July 1942, that the Assistant Collector himself should proceed to determine this question. It seems to me somewhat doubtful whether a direction of this kind would be strictly in accordance with law. Anyhow, the Assistant Collector ordered the respondents: Taj Ali, Khurshid Ali, etc., to put in a plaint, and on their default he proceeded with the partition case. After lapse of a consider able period a mode of partition was sanctioned on the 15th June 1954. The Collector and Commissioner both have declined to interfere with the order passed by the Assistant Collector. Jalal, Hassan Ali, etc., who are co‑sharers in the shamilat, have now come up in revision.

Two main points have been taken up before me :‑

Firstly, that the Assistant Collector 1st Grade has not strictly complied with the provisions of section 117 of the Punjab Land Revenue Act as he has not given any finding on the question of title raised before him but has proceeded with the partition on the strength of default by Taj Ali, etc.; who failed to file a plaint as directed by the Assistant Collector. I have carefully considered this aspect of the case, and I hold that the proper procedure for the Assistant Collector in such circumstances was to have struck issues on the basis of the application for partition and the pleas by the other party and decided the question of title in accordance with‑the procedure followed by Civil Courts. This decree) would have been appealable to the District Judge. The Assistant Collector, instead of adopting this procedure, proceeded with the partition on the ground that no plaint had been filed by the party concerned. This procedure adopted by him is clearly against law.

The other point is whether the provisions of section 34 of the Evacuee Property Ordinance, XV of 1949, do not apply to the case in question. The learned Commissioner has dealt with this point at considerable length, and I would agree with his views that in case the petitioners succeed in proving that there is evacuee interest in the shamilat, then the provisions of section 34 would apply and the procedure laid down in this section shall have to be complied with.

I accept the revision petition for the reason that the Assistant Collector 1st Grade did not comply with the provisions of section 117 of the Land Revenue Act. As a result the partition proceedings are stayed till the question of title raised by the petitioners is decided by the Assistant Collector.

A. H. Petition accepted.

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