MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein, being aggrieved of orders of Revenue hierarchy, the respondents Nos.181, 183 and 184, has filed instant petition for declaring the said orders to be illegal, unlawful, without jurisdiction and lawful authority, having no adverse effect upon her rights.
2. Respondents Nos.1 to 4 had filed partition applications under section 135 of the West Pakistan Land Revenue Act, 1967, regarding different "Khatas", wherein the area of 8 Kanal 9 Marla comprising of khasra Nos.2004/793, 794 owned and possessed by the present petitioner, given to her in lieu of dower by her husband vide Mutation No,2473 dated 28-8-2001 was also included. The transfer of ownership of said specific khasra numbers with possession in the name of petitioner was made in the column of cultivation. The petitioner initially was not impleaded in the partition proceedings, however, on getting knowledge of the same, she herself applied for her impleadment being a co-sharer, as such, a necessary party, so she was accordingly impleaded.
The Revenue Officer vide his order dated 13-9-2005 by accepting the mode of partition, passed a partition order whereby the specific area owned and possessed by the petitioner given to her by her husband in lieu of dower in the column of cultivation, was given to the respondents Nos.1 to 4, the applicants of partition applications, whereupon she preferred an appeal before the District Officer Revenue/Estate\ Collector,District Charsadda, who while setting aside the order of partition passed by the Revenue Office' and accepted the appeal of petitioner vide his order dated 9-12-2005 and remanded the case back to the Revenue Officer. Respondents Nos.1 to 4 then preferred a revision before Presiding Officer, Revenue Appellate Court-II, Peshawar, who vide order dated 21-3-2006 accepted the same and set aside the order of the District Collector. The Revision of the petitioner before the SMBR was dismissed vide his order dated 14-11-2007.
3. The learned counsel for the petitioner submitted that the orders of the for a below except the order of District Collector, working under the Revenue hierarchy of Senior Member Board of Revenue, respondent No,184, are against law, illegal, and without jurisdiction and the same are against the basic principles of law of partition; the possession of the petitioner over the property established on the record was not considered by the Revenue Officer by directing the same to be given to respondents Nos.1 to 4; the Revenue Appellate Court again committed an illegality by not considering the petitioner to be a co-sharer by directing the petitioner to first change her position from the column of cultivation to the column of ownership within three months from the issuance of order of the Presiding Officer dated 21-3-2006 from the concerned authority/Court otherwise after lapse of three months the order of partition of DDOR would hold the field; concurrence of the same by the SMBR is yet another illegality which requires interference by this court to declare the same illegal, unlawful and without lawful authority and jurisdiction having no adverse effects on her rights.
As against that the learned counsel for respondents Nos.1 to 4 submitted that the order of partition as well as the orders of Appellate Court and Senior Member Board of Revenue are in accordance with law, no illegality was committed by the forums below, the petitioner being not a recorded owner in the column of ownership cannot be held entitled to seek partition unless her status of being owner is shifted from the column of possession to the column of ownership and requested for dismissal of instant writ petition.
4. The arguments of the learned counsel for the parties heard and record perused.
5. Before we consider the submissions of the learned counsel for the parties, we would like to reproduce the relevant portion of the order of District Revenue Officer/ Estate Collector, Charsadda, "In view of the above discussion, I am of the 'considered opinion that the partition proceedings have not been conducted according to the proper legal procedure and contain so many irregularities. I, therefore, accept the appeal and set aside the whole partition proceedings including the mutation attested on the basis of Naqsha (Jeem). The case file is sent back to the court of DDO (R), Charsadda with the direction to consider all aspects of the partition such as title of property, possession of each co-sharer, classification of land, proximity of any partition of land near Abadi/read before drawing up the scheme of partition."
Similarly, the relevant portion of the order of Revenue Appellate Court reads as under:-- "The Deputy District Officer (Revenue) Charsadda, on 7-5-2005 has ordered that the partition will be carried out taking into consideration the possession of joint land owners and classification of land etc. besides, Nadir Khan the present petitioner has become owner in the column of ownership on 5-7-2000. While Mutation No,2473 attested in favour of Mst.Zakia Begum in the column of cultivation is on 28-8-2001.
Because that the appellant Nadir Khan had became owner prior to Mst.Zakia Begum. According to section 135 of the Land Revenue Act, 1967, the partition will be carried out among joint land owners and not between the tenants.
Keeping in view the foregoing discussion, the order of the District Officer Revenue and Estate/ District Collector, Charsadda, dated 9-12-2005, is not maintainable and is therefore, set aside.
However, the respondent Mst. Zakia Begum being insistent to be owner is directed to first change her position from the column of cultivation to the column of ownership within three months from issuance of this order. The order of Deputy District Officer (Revenue) Charsadda is held in abeyance for these three months but if she fails to do so, the order of the Deputy District Officer (Revenue), Charsadda, shall be implemented after the expiry of the said period. During this period she should take appropriate steps before the relevant courts/ authorities for changing her position from the column of cultivation to the column of ownership."
6. Perusal of record would reveal that the petitioner got her ownership rights vide Mutation No,2473 dated 28-8-2001. Such ownership rights regarding two specific khasra numbers referred above in the joint khata were transferred in her name by her husband in the column of cultivation as he being owner in possession of these two khasra numbers had transferred the same along with possession. The entries of a joint owner in possession of certain khasra numbers in the column of cultivation have got all the legal sanctity and also preference over the other co-owners as the said owner is in possession of the specific khasra number in the joint Khata. Besides the entries in the column of ownership, such an owner is also recorded as owner in possession "Hissadar Malik Qabiz" in the column of cultivation. Such entries in the column of cultivation are to be respected and the person acquiring ownership rights A in specific khasra numbers of joint khasra with entries in his name in the column of cultivation is joint owner to all intents and purposes. Vendee of such a joint owner will step into the shoes of his vendor and will have all the rights in the property which his vendor had at the time of sale. At the time of partition of said joint khata wherein such property is situated, vendee of such property has got every right to protect possession of his specific khasra numbers given to him at the time of sale. Reference in this regard could be made to Muhammad Muzzafar Khan's case reported as PLD 1959 SC (Pak) page-9. Relevant portion reads as under: "The vendee of co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided khata, does not become a co- sharer in that khata."
7. The perusal of the impugned order of partition by the DDO (Revenue) would reveal that the case of the petitioner was not considered in the light of parameters referred above. The order of the Presiding Officer of Revenue Appellate Court regarding correction of entries in the column of ownership is once again unlawful as such a vendee of specific khasra number in the joint khata, as discussed above, is a joint owner to all intents and purposes and will enjoy all the rights in the property which his vendor had in the property. At the time of partition of such property, the vendee would not be required to first transpose his name in the column of ownership and then claim partition. If there is a title dispute then in that case under section 141 of West Pakistan Land Revenue Act, 1967, the Revenue Officer prior to partition of the property can refer the parties for determination of their dispute of title from a competent court or he himself can proceed to determine such dispute of title as if he was such a court.
We in the given circumstances, are compelled to set aside the impugned order of partition and the orders of Presiding Officer of appellate court and SMBR being illegal and unlawful exercise of jurisdiction and authority and restore that of District Officer Revenue/Estate Collector, Charsadda, dated 9-12-2005. The partition proceedings be decided in the light of observations made above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.