' SYED HAM1D ALI SHAH, J.-Partition among the co-sharers regarding land 124 kanals and 10 marlas is in dispute. Respondent No,2 claiming 44 kanals and 11 marlas as residential, sought it's partition through a civil suit and for remaining land, he approached Tehsildar for partition. His application was dismissed on the ground that the land situates within the municipal limits, cannot be partitioned in the hierarchy of Board of Revenue. D.O. (R), vide order, dated 6-2-2006, set aside the order of Tehsildar, dated 20-9-2005. The decision of D.O.(R) was successfully assailed before E.D.O.
(R) who through order, dated 27-9-2006, upheld the decision of Tehsildar and set-aside the order of D.O.(R). Board of Revenue/respondent No,1 through order, dated 7-11-2006, directed Tehsildar to determine the nature of the property, segregate agricultural and residential property and thereafter carry partition of agricultural property. Petitioners sought review of the order of respondent No,1, which was dismissed on 5-11-2007.
2. Tehsildar, in the post remand proceedings, turned down the request of the petitioners to await decision of Board of Revenue on review application of the petitioners. He sanctioned the mutation on 7-6-2007. Petitioners unsuccessfully assailed the mutation before D.O.(R)., E.D.O. (R) and Board of Revenue. The order of Board of Revenue/respondent is challenged in this constitutional petition.
3. Learned counsel for the petitioners contended that Tehsildar partitioned the property during pendency of review application. He in this legal exercise, has given the respondents land, more than their actual shares. Tehsildar passed the impugned order in undue haste and in connivance with respondents No,2. Impugned mutation was passed secretly and the petitioners assailed the order soon on gaining the knowledge of sanction of mutation No,12599. The land is predominately urban and commercial, therefore, respondents (Tehsildar, D.O. (R)., E.D.O. (R) and Member Board of Revenue) have no jurisdiction to pass any order with regard to it's partition. Learned counsel submitted that respondent No,2 himself admitted in his civil suit that 44 kanals and 11 marlas, out of total 124 kanals and 13 marlas, is residential land. The respondent's share in residential land is 22 kanals 17 marlas; out of which he has sold 7 kanals and 8 marlas and his share in the residential land is left, to the extent of 14 kanals and 19 marlas. Tehsildar has given him in excess of his share i,e, 29 kanals and 19 marlas.
4. Heard learned counsel for the petitioners and record perused.
5. Petitioners have assailed the partition proceedings mainly on the ground that Tehsildar has not associated them, in the course of proceedings. The order of Tehsildar reflects that the petitioner No,1, with his counsel Ch. Muhammad Nawaz appeared before Tehsildar and participated in the proceedings. The fora below has rightly relied upon the judicial proceedings and Court record.
There is no cavil with the proposition that judicial proceedings, always have the precedence over A affidavit of the litigant or learned counsel of such litigant to the contrary. The Honourable Apex Court in the case of "Fayyaz Hussain v. Akbar Hussain and others"(2004 SCMR 964) has enunciated that:-- ".. Learned counsel attempted to persuade us, to accept the affidavit of Ch. Muhammad Afzal Kahloon, Advocate over the judicial proceedings recorded in the Court of Additional District Judge in view of unfair reputation of the Presiding Officer but we are not inclined to adopt this course of action which may lead to a large number of legal complications. In any event this being an essentially a disputed question of fact could neither be resolved by the High Court nor by this Court in the exercise of extraordinary Constitutional Jurisdiction. There is always a presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. Strong and unimpeachable evidence is required to rebut the presumption which is badly lacking in the case in hand."
' The record and proceeding show that the petitioners have participated in the proceedings and were provided opportunity of being heard.
6. Contention of learned counsel for the petitioners that authorities in the revenue hierarchy, have decided the matter on technicalities and have non-suited them on the question of limitation, is not convincing . The decisions/orders passed by D.0.(R), E.D.O. (R) and Member Board of Revenue are on merits as well, besides on the point of limitation. They, while passing the impugned orders, have also examined the issue of limitation and observed that appeal before D.O.(R) was not filed within the prescribed period of limitation as each day's delay remained unexplained. E.D.O. (R) heard the matter on merits, discussed the merits of the case and gave his findings both on merit as well as on the question of limitation.
7. Now I will revert to the last contention of the petitioners that property was urban and not agricultural, therefore, Revenue authorities have no jurisdiction to effect it's partition. The petitioners supported this contention by referring to the institution of civil suit which respondent No,2 instituted for the partition of suit-land (measuring 44 kanals) considering the property as urban. E.D.O. (R) and Member Board of Revenue, have examined this objection and found that the petitioners have placed on record no evidence as to the fate of this suit. The copy of the plaint is annexed with this petition, which shows that the suit was instituted on 16-10-2003. Petitioners have failed to provide further progress in the suit to the Revenue authorities. In the absence of any decree or an injunctive order, the revenue authorities have rightly proceeded in the matter. The whole record of land is kept by the Revenue Officer. Civil Courts have no jurisdiction to partition the joint land by metes and bounds. Such function is assigned to the Revenue Officer under section 135 of the West Pakistan Land Revenue Act (XVII of 1967). In case where the question of title has arisen, the Revenue Officer can either himself take cognizance of the matter or refer the same to the Civil Court. The matters where title of the joint owners is not in dispute, the Revenue Officer has to determine the mode of partition. The function of Civil Court in partition cases is to decide the question of title pure and simple. It has been held in the case of Haji Mustaqim v. Haji Faridullah and others" (PLD 1992 Peshawar 37) that jurisdiction of civil Court cannot be invoked to question mode of partition.
8. Respondent No,1, in the earlier round of litigation (ROR No,1947 of 2006) directed Tehsildar/AC-1 to hear the parties at spot and partition the land according to law. The order was assailed at a belated stage in a constitutional petition (Writ Petition No, 4336 of 2008) which was dismissed being barred by laches. The order of Board of Revenue attained finality. Tehsildar effected partition in the post remand proceedings and the mutation was sanctioned after hearing the petitioners and their learned counsel. The petitioners now claim that property is urban and partition is not legally permissible. The land which is excluded from operation of Land Revenue Act, is described in section 3 of Act, 1967, which reads:-- ' Section 3. "Exclusion of certain land from operation of this Act.--(1) Except so far as may be necessary for the record, recovery and administration of village-cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land-revenue.
(2) It shall be lawful for the Collector acting under the general or special orders of the Board of Revenue, to determine, for the purposes of this Act, what lands are included within the site of a town or village, and to fix and from time to time to vary the limits of the same, regard being had to all the substituting rights of the land-owners".
9. The above provision reflects that Act, 1967 will not apply to the land, which is kept as site of town or village and is not assessed to land revenue. Revenue authorities proceeded with partition of joint land, as there was no objection to the title of owner. The objection of the petitioners, that Killa Nos.
13/3 and 16 in square No,15, are residential and fall under boundary wall of Abadi, were turned down on the ground that change in the classification of land took place through Khasra Girdawari during the period of Rabi 2005, when the partition proceedings were pending. No interference in such finding is justified as the Revenue Officer has proceeded in the matter, as per entries in the revenue record, as they existed at the time of filing of the application for partition. Any subsequent change is immaterial. The land, as per Revenue Record, was assessed to land revenue, therefore, the respondent had rightly proceeded in the matter of partition.
10. As sequel to above, this petition has no merits and is accordingly dismissed in limine.