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Civil Petition for leave to Appeal No. 271/11 of 1985, decided on 20th January 1986.

(On appeal from the judgment and order of Lahore High Court, Rawalpindi Bench, dated 6-2-1985 in R.S.A. 786 of 1972).

---Art. 185(3)--West Pakistan Land Revenue Act (XVII of 1967), Ss.118 137--Partition of land by Revenue authorities--Proceedings challenged in civil Court--Petitioners having reduced entitlement of respondent plaintiffs by their ingenuity and devices--No statement by respondents in regard to relinquishment of their title--Suit decreed--Jurisdiction of civil Court challenged--High Court repelled objection in regard to maintainability of suit, holding that since question of title was involved, partition could be assailed in suit--Petition being devoid of merits, dismissed.

Karim Bakhsh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th January, 1986.

The petitioner had applied to the Tehsildar for partition of land measuring 573 Kanals 15 Marlas situate in village Lolianwal, Tehsil and District Attock against the respondents on 1-12-1953. The partition was finalized on 26-8-1954 and Mutation No.2400 was sanctioned in this respect on 20-9-1956. Ibrahim respondent filed review petition against the abovementioned partition but the same was dismissed on 8-8-1956. The petitioners thereafter took possession of the partitioned land under section 122, Punjab Land Revenue Act on 26-6-1955.

2. Respondents Nos.l to 16 filed a civil suit in the Court of Civil Judge attacking the partition proceedings which was decreed against the petitioners. Appeal before the District Judge was also dismissed. R.S.A. filed in the Lahore High Court, Rawalpindi Bench was also dismissed vide the impugned order. The suit was in respect of only an area of 111 Kanals 11 Marlas bearing Khasras Nos.1845, 1898, 1851, 1854, 1900 and 1910, while the application of petitioners was in respect of an area of 573 Kanals and 15 Marlas and contained many Khasras besides those, mentioned in the plaint. The suit was based on the allegations that the petitioners had, with the collusion of revenue authorities, obtained an area of 225 Kanals although they were entitled to only 72 Kanals and some Marlas whereas respondents/ plaintiffs Nos.l and 2 were given only 7 Kanals and few Marlas of land instead of 74 Kanals and 8 Marlas and no notices were issued to the co-sharers during the partition proceedings. The petitioners herein defended the suit which gave rise to as many as 9 issues.

3. Leave is now sought on the ground that the Revenue Officer had exclusive jurisdiction to sanction the mode of partition and thereby distribute the land involved in the partition in a manner which is agreed to by the parties and is equitable in the circumstances. Under section 118 of the Punjab Land Revenue Act, any aggrieved party could file an appeal or review, revision to the proper authority. In the present case much grievance has been made out in respect of less land being allotted to the respondents/ plaintiffs and more area to the petitioners. It is further submitted that the excess area given to the petitioners was not necessarily at the expense of the plaintiffs because the total of the suit land was only 111 Kanals and 11 Marlas and that given to the petitioners was 225 Kanals. This discrepancy in the area has been lost sight of by all the Courts below. The area, therefore, allotted to the petitioners was also from other Khasra numbers than those forming subject-matter of the suit; that in any case the distribution of the land in partition proceedings was in exclusive jurisdiction of the Revenue Officer and so was the classification. The area, therefore, could be increased or decreased in the manner provided for .in the mode of partition. It was further submitted that there is no proof on the file that the Revenue Officer who conducted the proceedings, had exceeded his jurisdiction in any manner and that the mode of partition adopted by him was violative of section 118 of the Punjab Land Revenue Act. The Courts below have thus misread the evidence on the record and misapplied the law on the subject and thus assumed jurisdiction not vested in them. It' is also argued that the suit was brought against the order of partition made in 1954 under which even the possession was taken by the petitioners in 1955 but the suit was brought in 1966. The possession of some of the Khasra numbers was taken by ploughing the land and, therefore, the suit brought for declaration and injunction was hopelessly time-barred. .

4. We have examined the contentions raised by the learned counsel for the petitioners. The lower Courts have held that the petitioners, by their ingenuity and devices reduced the entitlement of the respondents /plaintiffs from 74 Kanals 8 Marlas to 7 Kanals without there being any statement by them in regard to the relinquishment of their title. The learned High Court Judge repelled the objection in regard to the maintainability of the suit holding that since a question of title wasp involved, the so-called partition could be assailed in the suit. It remains a question of fact as to how much area the respondents/ plaintiffs owned in the suit land. It is not denied that earlier they were occupancy tenants paying 1/3rd 'batai' and their share in terms of section 114 of the Punjab Tenancy Act had to be 2/3rd. No evidence was placed upon the record to show if the respondents had abandoned their right in favour of the petitioners. The argument before us is that since the land was subject to 'Muqarraridari' rights of some other persons, in the mode of partition, the rate of fixed rent in the form of cash payable by both the sides had to be kept in view and that in accordance therewith the respondents could get only 7 Kanals equivalent to their share in the said rate. This argument is misconceived as section 135 of the Land Revenue Act allows a joint owner of land to apply for partition of his share in the land. Obviously the respondents' share was reduced to only 1/3rd and the remaining 2/3rd had been taken by law and transferred to the respondents/plaintiffs because of their status of occupancy tenants paying only 1/3rd 'batai'. How this share could be reduced in adopting a particular mode of partition has not been explained. We find that this petition has no merit and is, consequently, dismissed. However, the entire proceedings if not necessary should not be construed as having been set aside unless the share qua the contesting parties is considered as having been determined. With this observation this petition is dismissed.

M. I. Petition dismissed.

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