' MUHAMMAD SAYEED AKHTAR, J.--- The facts culled from the record are that Muhammad Ibrahim, Major (R) Ghulam Rasool and Muhammad Hussain were real brothers inter se. They jointly owned land measuring about 35 Acres situated in Chak No,40/12-L, Tehsil Chichawatni District Sahiwal in a joint Khata. The petitioners moved an application on 28-9-1991 under section 135 of the Land Revenue Act, 1967 before the Assistant Collector Grade-I, Chichawatni for partition of the joint Khatas i,e, Khata No,9 measuring 100 Kanals and Khata No,7 measuring 200 Kanals. The share of the petitioners in Khata No,9 is stated to be 31 Kanals and one Marla and 77 Kanals and 13 Marlas in Khata No,7. During pendency of the said application, Major (R) Ghulam Rasool (predecessor-in- interest of respondents Nos.6 to 8 and 10 to 12) also moved an application on 28-10-1991 before the Assistant Collector Grade-I, Chichawatni stating therein that the land in question already stood partitioned through private partition in 1975 and the Wandas of the parties be affirmed according to the private partition. The learned Assistant Collector Grade-I, Chichawatni vide his order, dated 21-12-1991 proposed the mode of partition. Thereafter vide order, dated 29-2-1992 he directed the Kanongo to prepare the Wanda in accordance with order, dated 21-12-1991. Subsequently the said Assistant Collector Grade-I sought permission from the then Deputy Commissioner on telephone for reviewing his order, dated 21-12-1991 which was allowed. He vide order, dated 28-3-1992 amended the Wandas of the parties. The order, dated 28-3-1992 was challenged in appeal before the Additional Commissioner, Multan who allowed the same on 23-9-1992 and remanded the case to Assistant Collector Grade-I, Chichawatni for fresh decision. On the application of Ghulam Rasool etc. The case was transferred by the Deputy Commissioner to the Assistant Collector Grade-I, Sahiwal. He after hearing the parties and going through the record produced by them prepared two Wandas keeping in view the possession of the parties vide his order, dated 28-3-1994. The said order, dated 28-3-1994 was assailed in appeal before the District Collector, Sahiwal who dismissed the same on 26-2-1995. Three appeals were preferred before the Additional Commissioner Revenue, Multan who also rejected the same on 23-12-1996. The petitioners remained unsucessful in their revision petition bearing R.O.R. No,499 of 1997 before the Member Board of Revenue on 8-4- 2003.
2. Learned counsel for the petitioner contends that the Assistant Collector Grade-I, Chichawatni reviewed his order, dated 21-12-1991 on a telephonic massage from the Deputy Commissioner which is totally illegal. He acted under the directions of the Deputy Commissioner, therefore, the superstructure built upon it falls to the ground. He urged that under section 141 of the Land Revenue Act, 1967 (hereinafter to be called as the Act) when a question of title in property is involved, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court. In the instant case it was joint property and the question of title was involved. Thus, the Revenue Officer himself could proceed to determine the question of title as a Civil. Court or could have required the parties to file a suit in a Civil Court for obtaining a decision regarding the question of title and could have suspended further action on the application for the partition till the said suit was decided by the Court. Reliance was placed on Jamala v.
Muhammada and others AIR 1938 Lah. 202 and on a decision of Financial Commissioner, Punjab reported as Malik. Muhammad Hassan and another v. Malik Karim Bakhsh and others 1939 (18) LLT
10. It was maintained that there was ample evidence on the record to show that there was no private partition between the parties.
' Rana A.D. Kamran, Advocate for respondent No,8 and Ch. Sagheer Ahmad, Advocate for respondents Nos.9 and 13 supported the case of the petitioners. None has entered appearance on behalf of respondents Nos.6, 7, 11 and 12 despite appearance of the name of their learned counsel in the cause list. Hence, they are proceeded ex parte. D.D.O.(R) with Halqa Patwari along with record on behalf of respondents Nos.1 to 4.
' Learned counsel for respondent No,10 has vehemently opposed this petition stating that no question of title is involved in this case. The authorities relied by the learned counsel for the petitioners are not applicable to the facts of the instant case as question of maintainability of the suit was involved in the said case. He further submitted that previously the parties had been fighting for correction of the Khasra Girdawari on the basis of private partition which was allowed and the petitioners never challenged the same. They are estopped from challenging the same subsequently. He argued that section 141 of the Land Revenue Act, 1967 is not applicable to the facts of the instant case. An application for affirmation of the private partition was made under section 147 of the Act. The Revenue Officer after affirming it can proceed under sections 143 to 146 of the said Act,
3. I have gone through the impugned orders, perused the record and considered the arguments of the learned counsel for the parties.
4. The argument of the learned counsel for the petitioner is that the order, dated 21-12-1991 was reviewed by the Assistant Collector Grade-I, Chichawatni vide his order, dated 28-3-1992 after socking telephonic permission. The said order, dated 28-3-1992 was set aside by the learned Additional Commissioner Revenue, Multan vide his order, dated 23-9-1992. On remand the matter was decided by the Assistant Collector, Sahiwal and not by Assistant Collector Grade-I, Chichawatni. The argument of the learned counsel for the petitioner goes by. Board.
5. An application for partition of the joint property is made by the joint owners under section 135 of the Punjab Land Revenue Act, 1967. If question of title in any property of which partition is sought arises the Revenue. Officer may under section 141 of the said Act decline to grant application for partition until the same , has been determined by a competent Court. He may either himself proceed to determine the question as though he were a Civil Court or require a party specified by him to file a suit in the Civil Court. He shall suspend further action on the application for partition till the said civil suit is decided. In the instant case the respondents had moved an application under section 147 of the Act for affirmation of the partition privately effected. Under subsection (2) of the said section of the Act, on receiving the application the Revenue Officer shall inquire into the case and if he finds that the private partition has in fact been made he may make an order affirming it.
In the instant case two applications were pending before him one under section 135 of the Act for partition of the joint property and the other under section 147 of the said Act for affirmation of the alleged private partition. As per section 147 of the Act if the Revenue Officer comes to the conclusion that there was a private partition between the parties he was required to affirm the same and dismiss the application under section 135 of the Act for partition of the property.
However, if he determines that no private partition was effected between the parties he will proceed on the application for partition of the property under section 135 of the Act. In the case in hand the Revenue Officer came to the A conclusion that the parties had already effected a private partition and he affirmed the same. In this view of the matter, the question of proceeding under section 141 of the Act would not arise. The Lahore case Jamala v. Muhammada and others (supra) relied by the learned counsel for the petitioners does not help him. In the said case the suit was instituted alleging that the entire estate left by the ancestral was joint and no private partition ever took place and that he was entitled to have it partitioned. The suit was contested by the co-sharer on the ground that the plaintiff had no right to sue for the declaration prayed for on the ground that he was estopped from instituting the suit since he had previously admitted that the land had already been partitioned. The learned trial Court dismissed the suit. It was in this context that the Court held that the suit was maintainable. In my view the said authority does not apply to the facts of the instant case. The title of each other and their share in joint Khata is not denied by either of the parties. As such no question regarding the determination of title is involved. The private B division does sever the joint title and convert the joint property into severalty.
6. As far as the plea that the private partition between the parties is not proved, suffice it to say that it is a question of fact and the same has been decided by all the four Tribunals below against the petitioners. Nothing has been brought to the notice of this Court calling for interference in the finding of fact.
7. For what has been stated above, I do not find any infirmity in the finding of the Tribunal below.
This petition is, therefore, dismissed, leaving the parties to bear their own costs.