FAQIR MUHAMMAD KHOKHAR, J.---The petitioners as well as the respondents Nos. 1 to 21 were joint owners of land in Khata No,6.6 Khatuni Nos.9 to 13 comprising Killa Nos. 2 to 9, 11, 35 of square No,38 measuring 197 Kanals and 18 marlas and Khata No,5/5 Khatuni Nos.7, 8, Square No,68 comprising Killa No,1, 10/1 measuring 14 kanals and 9 marlas situated at Chak No,324/JB, Tehsil and District Toba Tek Singh. The respondent No,1 Allah Ditta as well as some of the other respondents being legal heirs of Ali Bakhsh deceased made applications before the Tehsildar/Assistant Collector-II, Toba Tek Singh under section 135 of the West Pakistan Land Revenue Act, 1967 for partition and separation of their shares in the land. The Tehsildar , vide orders dated 16-1-1995 and 26-1-1995 made changes in the shares by way of partition of the co-sharers in the joint khata. The private respondents preferred two separate appeals against the order of the Tehsildar/Assistant Collector which were dismissed by the District Officer (Revenue), Toba Tek Singh, vide order dated 28-8- 2002. Therefore, they filed three revision petitions before the Executive District Officer (Revenue)
Toba Tek Singh, which were allowed, vide order dated 17-7-2003. The orders of the Assistant Collector and District Officer (Revenue) Toba Tek Singh were modified and the shares of the parties were re-allocated to the extent indicated below:-- Sajjad Javed, etc. LRs of Abdul Rehman, etc.Khata No.6/6Killa Nos.5 (4-K, 9-M), 6, 7, (1-K, 15-M), 14 to 17, 24, 25 of Square No.68 Allah Ditta son of Nabi Bakhsh Khata No.6/6Killa No.2, 3, (4-K, 11-M), 9, 11, 12, 19 to 21 Khata No.5/5Killa No.1 (3-K, 12-M), 10/1 (3-K, 12-M) adjoining to Killas Nos. 2 to 9 measuring 7-K, 4-M).
Noor Muhammad, etc. son of Umar DinKhata No.6/6Killa No.3(3-K, 13-M) 4, 5 (4-K-0-M) 7 (6-K-18-M), 8, 13, 18, 22, 23 Khata No.5/5Killa No.1(5-K-1M) 10/1(2-K, 4-M) measuring (7-K-5M)
2. The petitioners Nos. 1 to 3 and 10 to 13 felt aggrieved and made two revision petitions before the Member (Judicial-V), Board of Revenue, Punjab which were dismissed vide order dated 15-8-2008.
Thereafter, the petitioners Nos. 1 to 3 filed Writ Petition No,12977/08 which was dismissed by a learned Single Judge of the Lahore High Court, Lahore, vide impugned judgment dated 23-12-2008.
Hence this petition for leave to appeal.
3. The learned counsel submitted that the petitioners had received a notice from Board of Revenue for hearing of their revision petitions on 1-9-2008. Therefore, it was not understandable as to how the revision petitions filed by them could be mysteriously dismissed earlier on 5-8-2008. It was further argued that the partition of the land made by the Executive District Officer (Revenue), Toba Tek Singh re-allocating the shares of the co-owners of land resulted in awkward rather than compact blocks. The whole exercise was done in derogation of settled principles governing the partition of land. Even the mandatory requirements of section 142 of the West Pakistan Land Revenue Act, 1967 were not fulfilled by the Revenue Officer as no issue was framed nor evidence of the parties was recorded. It was further submitted that the petitioners had raised construction over a part of the land which was required to be excluded from the partition proceedings. It was lastly submitted that both the parties were already in possession of their respective shares of the land by way of family settlement. Therefore, there was no occasion for the respondents to make applications before the Revenue Officer for the partition of the joint land as co-sharers.
4. We have heard the learned counsel at length and have also perused the available record with his able assistance. It appears to us from the record that only the petitioners Nos. 1, 2, 3, 10, 11, 12 and 13 felt aggrieved of the order of Executive District Officer (Revenue) and filed revision petitions before the Board of Revenue and then only petitioners Nos. 1 to 3 moved the High Court through Writ Petition No,12977 of 2008. None of the other petitioners agitated the matter to call in question the validity of the order dated 17-7-2003 passed by the Executive District Officer (Revenue), Toba Tek Singh. The learned counsel failed to satisfy us as to how the rest of the petitioners could competently file the present petition against whom the principles of estopped and acquiescence were attracted. The proceedings of partition of rural agricultural land before the Revenue Officer are not governed by the Civil Procedure Code, particularly when the question of title of the land is not involved. Such proceedings being summary in nature do not partake the character of a Civil Suit necessitating the framing of the issues or recording evidence of the parties. The provisions of section 142 of the West Pakistan Land Revenue Act, 1967 make the position quite clear that a Revenue Officer is to decide the question by holding an inquiry as he deems necessary. The Order of Executive District Officer (Revenue) clearly indicates that the petitioners were taking unfair advantage qua the respondents regarding location of the areas in their possession from the joint Khata. Both the parties being similarly placed were justifiably treated by the Executive District Officer (Revenue) equitably, justly and fairly in the matter of partition of the land. The order dated 17-7-2007 passed by the Executive District Officer (Revenue) was not shown to be arbitrary or having caused any prejudice or injustice .To any of the parties or violative of any provision of law.
The petitioners never took the plea of raising any construction over the area, before any of the Revenue Authorities, the High Court or before this Court in their petition for leave to appeal. It is, therefore, not desirable nor possible to determine the same for the first time. As observed by the late Mr. Justice Karam Elahi Chauhan, J. (later a Judge of this Court) in the case of Qadir Bakhsh v.
Member, Board of Revenue (Consolidation) Punjab and 28 others PLD 1973 Note 13 page 22 (Lahore), the distribution of property amongst the co-sharers has also been recognized by the legal maxim i,e, Nemo in communion potest invitus detineri (no one can be kept in co proprietorship against his will). The practice of distribution of family property is known from the times immemorial in the sub-continent. It is merely an arrangement whereby co-sharers of land having undivided interest in one or more properties take by arrangements specific property in lieu of their shares. It is not to be confused that family arrangements are arrived at by the members of joint family with a view to neutralize the hostility and ill-feelings among themselves by avoiding the formal partition proceedings before Revenue Authority or before the Court. The private partition does not determine the legal rights but simply indicates the broad property among themselves.
Moreover, it is well settled that a co-owner in a joint property is not entitled without assent or acquiescence of the other co- C sharers to exclude portion of joint property or to select a particular portion for the purpose of partition. He is required to seek the partition of the landed property as a whole. As regards the other objection regarding the date of decision by the Board of Revenue earlier than the notice of hearing of the case issued to the petitioner, the High Court has already dealt with the same correctly. In our view, the impugned judgment of the High Court is plainly correct to which no exception can be taken. It is not a fit case for grant of leave to appeal.
5. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.