1. ' LIAQUAT ALI (MEMBER JUDICIAL-III).--- This is a revision petition under section 164 of the West Pakistan Land Revenue Act, 1967 against, the order, dated 5-10-1999 passed by the Commissioner, Lahore Division, Lahore, whereby, he accepted the, appeal filed by the present respondents against the order, dated 4-2-1998 passed by the District Collector, Kasur through which the ex parte partition proceedings of joint holding, finalized by the Tehsildar Pattoki on the application of present respondents were set aside.
2. 'Facts leading to the institution of instant revision petition are that the present respondent Jan Muhammad one of the present respondents submitted application for partition of joint holding comprising of Khewat. Nos.139, 141 total land measuring 380 Kanals, 15 Marlas, situated in Mauza Jagoki Ghumman, Tehsil Pattoki among the share-holders as per Revenue Record. It has been alleged that the total joint holding of the parties is 454 Kanals and the respondents have applied for partition of land comprising of two Khatas leaving behind three other Khatas. The Tehsildar Pattoki partitioned the joint holding comprising of aforementioned two Khatas (139 and 141) among the share-holders vide his ex parte order dated 7-7-1996. The present petitioners filed a review application before the Tehsildar for review of the ex parte order and also prayed therein that the entire joint holding comprising of all the five Khatas be pooled together and partitioned among the share-holders under the law. As the Tehsildar who passed the earlier partition order was transferred and the successor could not review A the same, therefore, the petitioners preferred an appeal before the District Collector Kasur who condoned the delay and accepted their appeal and set aside the order passed by the Tehsildar Pattoki. Aggrieved of the aforesaid order passed by the District Collector, the present respondents filed an appeal before the Commissioner, Lahore Division Lahore, who accepted the same and set aside the order passed by District Collector, Kasur and revived the order, dated 7-7-1996 passed by the Tehsildar/A.C.-1 Pattoki. Regarding the main issue involved in this case that the present petitioners were condemned unheard, the learned Commissioner has held that the present petitioners had sufficient knowledge and information about the partition proceedings initiated on the application of the present respondent and they willfully abstained from joining the same. The other plea of the petitioner that the joint holding of all the Khatas should be pooled together and partitioned among the share-holders as per their entitlements, have not been touched upon by the learned Commissioner, Lahore Division, Lahore in his impugned order.
3. ' Mr. Iqbal Ahmad Khan, Advocate counsel for the petitioner was heard at length. Mr. Jan Muhammad one of the respondents was present in person and stated that he would argue the case on behalf of all the respondents and has not engaged any counsel.
4. ' The learned counsel for the petitioner while drawing historic perspective of the ownership share of the petitioner in the joint holding with the respondents stated that Jan Muhammad, Muhammad Din, Muhammad Ali (the present respondent) and Khair Din sons of Pir Bakhsh were the joint owners of the land falling in Utaar and Hathar classification of Mauza Jagoke Ghumman of Tehsil Pattoki. According to Hissadari Khangi Taqseem (private partition) Khair Din brother of the present respondent got land in Utaar side which he exchanged with the present petitioner in the year 1973 through Mutation No,475 dated 31-5-1973. Through this mutation, the petitioners stepped into the shoes of Khair Din one of the previous share-holders in the joint Khata and got possession of the same land which was in his. Hissadari, possession with the consent of the other share-holders. It was argued that during the possession period of more than thirty years, the petitioners have developed and improved the land in question by investing huge amount of money and effort. The Tehsildar has wrongly allocated the land, developed by the petitioners into the Wanda of the respondents through partial partition of the total joint holding, which actually comprises of five Khatas. The learned counsel for the petitioners further argued that the present respondents (Jan Muhammad) cleverly drafted the partition application giving wrong address of the present respondents with mala fide intention of getting order of his own choice passed through ex parte proceedings. He further stated that the learned Commissioner, Lahore Division, Lahore has erred in law by accepting the contention of the respondent Jan Muhammad that he himself had contacted the present petitioners residing in a village in District Pakpattan, to inform them of the partition proceedings and date of hearing, because this version is not supported by any documentary evidence neither have been established through any impartial enquiry.
5. ' It was contended by the counsel or the petitioner that the petitioners are not opposed to the partition of the joint holding but they only want that the entire joint holding in which both the parties are share-holders should be pooled together and partitioned in a fair and equitable manner. The learned counsel for the petitioner drew attention of the Court towards detailed report of E.A.C. Kasur dated 1-6-2001, available on the record file and stated that route-cause of dispute between the parties is fact that Khata No,150 was not included in the partition proceedings. In this Khata Jan Muhammad is owner of 6 Kanals, 2 Marlas but he is occupying 20 Kanals, 4 Marlas i,e, excess of his entitlement. Whereas the present petitioners are owner of 21 Kanals, 10 Marlas but not a single Marla of this Khata is in their possession. He contended that the dispute between the parties would be resolve only if their entire joint holding falling in all the five Khatas will be pooled and partitioned among the share-holders. He stressed that in order to get the issue resolved the direction may be passed to the Tehsildar for conducting proceedings of partition on the application submitted by the present petitioners through which partition of the entire joint holding has been requested. It was stated by him that the Tehsildar have declined to undertake proceedings on the partition application of the petitioners due to on going litigation between the parties rested with the instant case.
6. ' On the other hand, Mr. Jan Muhammad argued case of the respondents by stating that the land comprising of all the five joint Khatas fall in Autaar and Hithhar. The area of joint holding falling in Autaar is of higher quality and value whereas the joint holding falling in Hithar is of low quality and of less value. Therefore, according to him, the partition of entire joint holding by making one pool of the entire land is not possible and it has to be Khatawise. He insisted that the plea of ex parte proceedings of the petitioners is not valid as he himself had personally contacted the petitioners in their village in District Pakpattan to inform them of the date of hearing of the partition proceedings.
7. Their non-joinder, therefore, is willful and as such their plea that they were not given an opportunity of hearing is not valid. It was further stated by him that after obtaining the warrant Dakhal, he has took over the possession of the land allocated into his Wanda through partition proceedings and the present petitioners have been shown as tenant under will of the owner as such they are liable to pay share of the produce to him. In support of his version, he produced photocopy of the entry in Roznamcha Waqiati.
8. ' In exercise of his right of rebuttal, the learned counsel for the petitioner stated that the entries made by the Patwari in Khasra Girdawari and the Roznamcha Waqiati during on going litigation proceedings are of no value. Regarding the stance taken by the respondent that he himself contacted the petitioners to inform them of the partition proceedings, the learned counsel for the petitioner reiterated his counter-argument that there is no proof of this version as it is denied by the petitioners. At this point Mr. Jan Muhammad respondent offered to take special oath in support of his version which was not considered appropriate; hence this course was not adopted.
9. 'After giving due consideration to the arguments advanced by both the parties and after appreciation of the material facts gathered from the record, I have come to the conclusion that the partition proceedings carried out by the Tehsildar Pattoki are not just, fair and equitable. It smackes favouritism and mala fide and miscarriage of justice especially when seen in the light of report of E.A.C. And the findings of the District Collector in his order dated 4-2-1998 passed in appeal of the petitioners. In my view the dispute between the parties can only be resolved by pooling together the entire joint holdings borne on all the five Khatas and is partitioned among the share holders in a just fair and equitable manner. The impugned orders and the ex parte partition proceedings finalized by the Tehsildar are therefore, set aside and the revision petition is accepted.
10. ' Statedly the application of the present respondents for partition of the entire joint holding under all the five joint Khatas of the parties is already lying pending with the Tehsildar/A.C.-I Pattoki. This application should be expeditiously adjudicated in a fair, impartial and equitable manner by the Tehsildar Pattoki strictly in accordance with the spirit of law.