p>JUDGMENT ' On 27-7-1999, the petitioners filed an application against the private respondents for partition of the joint land measuring 17-Kanals, 1 Marla comprising Khasra No,93 (15 Kanals, 16 Marlas) and Khasra No, 94 (1 Kanals, 5 Marlas). The .Respondent put in appearance and stated that let the partition be made. The mode of partition was proposed on 14-1-2000. Some objections were filed.
The matter was again considered and ultimately the partition was allowed on 7-8-2000. Against this order, the respondents filed an appeal, which was dismissed by the Collector on 22-9-2001. A revision petition filed by the respondents was however, allowed by E.D.O. (R), Attock, on 30-7-1985, who proceeded to set aside the said order of the Assistant Collector. A further revision filed by the petitioners was dismissed by a learned Member (Judicial), Board of Revenue on 21-1-2003.
2. Learned counsel for the petitioners contends that the land was admittedly joint, on sale of specific Khasra numbers or specific area was alleged or proved and this being so, the learned Member, Board of Revenue, has acted without lawful authority in setting aside the partition and further the mode of partition that was ordered by the Assistant Collector.
3. Learned counsel for the respondents, on the other hand, contends that the land stood partitioned privately and the vendors of his client were in possession of the same and as such the impugned order of the learned Member, Board of Revenue, cannot be said to be without lawful authority.
4. I have gone through the copies of the record. I find that the respondents while putting appearance made a categorical statement that the land is joint and let it be partitioned. It was thereafter that the mode of partition was devised and sanctioned. At no stage, any question of title was raised and particularly it was not alleged much less proved that there was a private partition.
According to the Register Haqdaran Zameen for the year 1993-94 (at page 39 of the file), the total land measures 17 Kanals, 1 Marla, out of which 15 Kanals, 6 Marlas is under cultivation as Maira while 1 Kanal, 15 Marlas is uncultivable as Ghair Mumkin Dhoke. It is recorded to be owned by Mst. Mubarik Jan and others, the widow and daughters of Fatta, Muhammad Younas and Muhammad Siddiq petitioners. The shares of the said owners were duly worked out and recorded. What is important is that the entire land in self-cultivation of all the owners. The history of the alienations is as follows:--
(i) The petitioners purchased 3 Kanals and 6 Marlas of land vide Mutation No, 745 attested on 29- 10-1990 for a consideration of Rs,30,000.
(ii) The respondents purchased 12 Kanala, 1 Marla of land vide Mutation No, 1324 attested on 14-7- 1999 for a consideration of Rs,8,40,000.
(iii) The petitioners further purchased 1 Kanal, 13 Marlas of land vide Mutation No, 1225 attested on 30-5-1999 for a consideration of Rs,15,000.
5. All these alienations were made in the column of ownership with reference to the shares sold in the joint Khata. It was in the said background that the application for partition of the land was filed and the respondent expressed their consent to partition the joint land. According to the mode of partition proposed on 8-1-2000, the total share of 21/72 of the petitioners and 51/72 of the respondents was partitioned in accordance with the said respective shares. The petitioners were given 4 Kanals, 19 Marlas comprising Khasra No,93/1 and Said Shah respondent No,2 was given 10 Kanals, 17 Marlas comprising Khasra No,93/2 while Khasra No,94 measuring 1 Kanal, 5 Marlas was given to Saadat Khan, respondent No,3. According to the Tatimma and adjustment of the area, the front of the land abutting on roadside was 35 Karams, out of which 10 Karams were allocated to the petitioners while 25-Karams were allocated to the respondents.
6. In the said established rather admitted background, the learned Member, Board of Revenue, has proceeded to observe in para. 16 of his order as follows and accordingly proceeded to dismiss the revision petition:-- "Thus going strictly by the letter of the law, the impugned Naqsha Jeem would need to be maintained as it is. However, going by its spirit, it will need to be amended as prayed for by the respondents."
7. To my mind in absence of any allegation and proof that there had been a private partition between the parties, no alienation having ever been made in the column of possession, all alienations having been made with reference to the shares in the column of ownership. The said observation of the learned Member, Board of Revenue and consequent dismissal of the revision petition is wholly without jurisdiction and by all means perverse.
8. The concepts qua joint ownership and joint land have been settled and followed since centuries in the Sub-Continent. One absolute settled rule is that in a joint land, each and every co-sharer shall be deemed to be owner and also in possession of every inch of the said land till such time that it is partitioned by metes and bounds. The actual possession over joint land thus matter little when it comes to partition the same. The classification of land is Maira except for the Dhoke which has been given to the respondents and regarding which there is no objection. The learned Member, Board of Revenue has proceeded on the assumption that since the respondents or their vendors were in possession of the joint land, they can never be disturbed. This is against the very, to use the word of the learned Member, spirit of law and principles governing the partition of the joint land.
The learned Member has opted to deliberately ignore the facts that this was not a case of confirmation of a private partition rather the Revenue 'Officer were called upon to partition the joint land which admittedly was joint and all the co:owners called upon the Assistant Collector to go ahead with partition.
9. I may note here that the order of the Collector or for that matter of the Commissioner is neither here nor there and has practically been set aside by the learned Member, Board of Revenue.
10.- For all what has been discussed above, the order of the learned Member, Board of Revenue, dated 21-1-2003 and order, dated 28-5-2002 of the E.D.O. (R), Attock are found to be without lawful authority and by declaring as such are set aside. The result would be that the order passed by the Assistant Collector First Grade being in accordance with the shares of the co-owners in the joint land shall stand restored and the land shall be partitioned in accordance with law. No order as to costs.