' MUNIB AKHTAR, J.---By means of the present petition the order of the EDO (Revenue) Dadu dated 5-11-2011 is impugned by the petitioners in circumstances presently to be described. The impugned order is concerned with the partition of a portion of the estate of late Mr. Muhammad Jumman (hereinafter referred to as the "deceased") which partition was to be carried out in terms of an order of this Court dated 10-12-2010 explained in detail herein below. The legal heirs of the deceased are two widows, a daughter and a sister. One of the widows and the daughter by her are the present petitioners whereas the other widow and the sister are the respondents Nos. 1 and 2 (herein after referred to as the "contesting respondents"). It is not in dispute that the respective shares of the legal heirs in the estate are such that the daughter is entitled to inherit 50%, the sister 37.5% and each of the widows 6.25%. The estate of the deceased comprised of various properties some of which were urban in nature while the remaining were agricultural. The agricultural properties were situated in different villages and in different survey numbers within each village.
The present petition is concerned only with the agricultural properties. For convenience, each property in each survey number is thereby referred to as a "lot".
2. It appears that Certain disputes arose among the legal heirs and there was an earlier round. Of litigation which went all the way to the Supreme Court. It is not necessary to refer to this round of litigation in any detail; it suffices to note that it appears that the Supreme Court directed that the dispute between the parties be settled by litigation in the civil courts. This led to the filing of F.C. Suit No,53 of 2007 by the present contesting respondents as plaintiffs and the present petitioners as the defendants. An application under Order VII, Rule 11, C.P.C. Was filed seeking rejection of the plant, which was accepted and allowed by the learned trial court. An appeal was preferred against this order but was dismissed by the learned appellate court. Against these decisions a revision application was filed in this Court being R.A. 116 of 2010. This matter came up for hearing and was disposed of by a learned Division Bench of this Court by the aforementioned order dated 10-12- 2010. It appears that prior to making this order the Court had directed the concerned Mukhtiarkar to provide details of the properties that comprised the estate of the deceased and the details of the various lots in which the agricultural properties fell were placed on record. By the order aforesaid (herein after referred to as the "Earlier Order"), the learned Division Bench was pleased to dispose of the matter in, inter alia, the following terms. The orders of the courts below were set aside and insofar as the urban properties were concerned, the matter was remanded to the learned trial court for decision in accordance with law after giving an opportunity to the parties to lead evidence. Insofar as the agricultural properties were concerned, the EDO (Revenue) Dadu was directed to "demarcate and partition. The undivided shares in the aforesaid dens and hand it over to the respective owners".
3. There was however, one problem. One lot, comprising of 25 ghuntas which was located in survey number 112/1 of -deh Markhpur had apparently been disposed of earlier by some of .The legal heirs.
The learned Division Bench.Therefore directed as follows:-- "It is an admitted position that the respondents Nos.1 and 2 have sold out 25 ghuntas from the Survey No, 112/1 of Deh Markhpur in such an eventuality after partitioning and demarcation of the agricultural land, the EDO (Revenue) Dadu in the aforesaid proportion, he shall deduct the share of the Respondents' land from the proposed proportion which we have referred to hereinabove while partitioning the agricultural land as per the share of parties."
(The aforesaid lot of 25 ghuntas is hereinafter referred to as the "disposed of lot".)
4. The matter came up before the EDO (R) Dadu for compliance of the Earlier Order, and it is in purported compliance thereof that the impugned order was made. In considering how to deal with the disposed of lot, the EDO observed that this lot, though originally agricultural land, in fact was situated in the area of Dadu Town, and as a result had become residential urban property in nature. Therefore, it had acquired a value that was much greater than the other lots which were purely agricultural in nature. On this basis the EDO concluded that it would be inequitable and contrary to the Earlier Order (that he had been directed to implement) to make the partition purely in terms of area or acreage. He therefore set about discovering the value of the disposed of lot for which purpose a report was summoned from the Mukhtiarkar (R) Dadu. After ascertaining the market value of the disposed of lot, he determined the shares of the legal heirs in terms of its monetary value, as ascertained by him. In the Earlier Order, in the passage reproduced above, it had been observed that the lot of 25 ghuntas had been disposed of by the present petitioners (who were the respondents before the Court in R.A. 116 of 2010). Accordingly, after deducting the share of the present petitioners from the monetary value of the disposed of lot as ascertained by him, the EDO concluded that an amount of Rs,37,37,700 was payable by the present petitioners to the present contesting respondents and the EDO made a direction accordingly. The operative part of the impugned order is contained in para-10 thereof, which is as follows:-- "(10) Looking to the old dispute between the parties and to .Implement the directions of the honourable High Court of Sindh, Circuit Court Hyderabad I have fixed the value of area of Mst.Sehti and Mst. Zainab to be inherited by them from S.No,1 12/1 of Deh Markhpur which is Residential area of Rs,700 per Sq.Ft. And accordingly the value of their share of an area of 11911 Sq. Ft. Will come to the extent of Rs,83,37,700. Now the value of the land inherited by Mst. Farzana and Zaib-un-Nisa as already discussed at the rate of Rs,300,000 per acres will come Rs,46,00,000 this amount being the price of 15-12 1/4 Acres being share of Mst. Farzana and Mst. Zaib-un-Nisa is deducted from the above mentioned amount of Rs,83,37,700 being share of Mst. Sehti and Zainab from S.Nos.112/1 of Deh Markhpur there remain Rs,37,37, 700 which amount is to be paid by Mst. Farzana and Mst. Zaib- un-Nisa to Mst. Sehti and Mst. Zainab, who have already sold and enjoyed the value of share of inherited by Mst. Sehti and Mst. Zainab from S.Nos.112/1 of deh Markhpur as discussed above."
5. Learned counsel for the present petitioners, on whom the EDO has placed the burden of paying the aforesaid compensation, submitted that the impugned order was illegal and without jurisdiction. He submitted that the EDO had travelled beyond the four corners of the Earlier Order, which is all that he had been directed to implement, and that the exercise carried out by him was therefore entirely illegal. He pointed out that in fact the present petitioners had taken the objection before the EDO that computation of the monetary value of the already disposed of lot was neither called for nor permissible but that the EDO had wrongly overruled this objection. In other words, the case of learned counsel for the present petitioners was that the compensation required to be made for the disposed of lot, as contemplated by the Earlier Order, was only in terms of area or acreage. Thus, all that the EDO was required to do was to proportionately deduct the relevant area froth the shares of the present petitioners in the other lots of agricultural properties and allocate the same to the present contesting respondents. He prayed that the impugned order be set aside.
6. Learned counsel for the present contesting respondents opposed the present petition and supported the impugned order. He submitted firstly that the petition was not maintainable. The impugned order had been made in partition proceedings and learned counsel submitted that section 142 of the Land Revenue Act, 1967 expressly conferred a right of appeal against an order in partition of a Revenue Officer. Since a statutory remedy was available, that ought to have been availed. Secondly, learned counsel submitted that the approach taken by the EDO in computing the value of the disposed of lot was perfectly in consonance with the Earlier Order, and that the EDO had the jurisdiction to award compensation if the facts and circumstances of the case before him so warranted. He contended that the present petitioners had obtained the exclusive benefit of the 25 ghuntas comprising the disposed of lot, since this entire area had been sold off by them, although they were only entitled to a portion thereof (being in total 56.25% of the same). Thus the contesting respondents had been deprived of the benefit that ought to have accrued to them and this situation had been duly rectified in the impugned order.
7. Learned A.A.-G., assisting the Court, submitted that he could not defend the impugned order, which according to him was unlawful. The mukhtiarkar concerned was in attendance and had brought the record, with him. Examining the same, learned A.A.-G. Pointed out that the disposed of lot had in fact been sold out as long ago as 7-3-1998 by means of a registered sale deed and the relevant entry mutating the property in favour of the transferee, one Mr. Raees Nabi Bux, had been made on 14-7-1998. This entry revealed not merely that the sale consideration was a mere Rs,15,000 but also noted that the transferors were not only the present petitioners but also the present respondent No, 1 . He submitted that the EDO had wrongly transmuted property,, that was worth a mere Rs,15,000 into a claim of Rs,37,37,700. Learned A.A.-G. Submitted that this was completely contrary to law
8. We have heard learned counsel as above as also learned A.A.-G. And have seen, the record with their assistance including in particular the relevant extract from the record of the mukhtiarkar regarding the entry whereby the 25 ghuntas were disposed of in 1998. A certified copy of this extract has been placed on the record by the mukhtiarkar. We first take up the objection' regarding the maintainability of the petition. With respect, we cannot accept this objection. This is so for two reasons. Firstly, it is to be noted that what the EDO was doing was implementing the order of the High Court in the aforesaid Revision Application 116 of, 2010 (i,e,, the Earlier Order) and was doing so on the specific directions of the High Court itself. In other words, the exercise being carried out by him was not in the nature of partition proceedings simpliciter under Chapter-XI of the Land Revenue Act. Rather, he was simply performing a ministerial act intended to give effect to the decision of the High Court, which decision itself arose not by way of revenue proceedings but as a result of civil litigation. The fact therefore that section 142 confers a right of appeal in respect of partition proceedings is, in the facts and circumstances of the present case, not relevant. Secondly, we are of the view that in any case a revenue officer, while dealing with an application for partition under the aforesaid Chapter-XI of the Land Revenue Act, has no jurisdiction to award a sum of money by way of compensation. In this regard, we would refer to sections 140 to 142 of the Land Revenue Act which, insofar as is presently relevant, provide as follows:--
140. Procedure on admission of application.---If the Revenue Officer does not reject the application under section 139, he shall ascertain the questions, if any, in dispute between any of the persons interested, distinguishing between--
(a) questions as to title in the property of which partition is sought; and
(b) questions as to property to, be divided, or the mode of making the partition.
141. Disposal of questions as to title in the property to be divided.---(1) When there is a question as to title in any property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he they himself proceed to determine the question as though he were such a Court.
(5) Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply, namely:-
(a) if the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as a Revenue Court under the law for the time being in force.
(b) if the question is one over which a civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a civil Court and he record a judgment and a decree containing the particulars required by the Code of Civil Procedure, 1908 (Act V of 1908) to be specified therein.
(c) An appeal shall lie from the decree of the Revenue Officer under clause (b) as though that decree were a decree of a civil Judge in an original suit....
142. Disposal of other question.---(1) When there is a question as to the property to be divided, or the mode of making a partition, the Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision.
(2) An appeal may be preferred from an order under subsection (1) within thirty days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the Revenue Officer by the authority to whom the appeal has been preferred, the Revenue Officer shall stay further proceedings pending the disposal of the appeal....
9. will be seen from the foregoing that the questions that a revenue officer can deal with in partition proceedings fall into two separate categories. The first, and primary, category is questions as to the title in the property sought to be partitioned. This category is dealt with in section 141. It will be seen from this section that the revenue officer has a choice. He may either decide the question himself or decline to do so and require the parties to have it determined by a civil court of competent jurisdiction. But, and this is crucial for present purposes, if he chooses to decide the question himself, he does so not as a revenue officer but as though he were himself a civil court of competent jurisdiction (unless it is a matter within the jurisdiction of revenue court, in which case he acts as such court). This is clear from the various subsections of section 141, and in particular subsection (5) which lays down certain rules that apply if the question of title is determined by the revenue officer himself. If his decision is as though he was acting as a civil court of competent jurisdiction then subsection (5) expressly requires him to make judgment and decree after following the procedure applicable to the trial of a original suit by a civil suit and an appeal lies from the decree of the revenue officer in the same manner as an appeal against the decree of a civil judge in an ordinary suit.
10. The position as regards the second category of questions which the revenue officer can decide is entirely different. First of all, this category, which is dealt with in subsection (1) of section 142, is limited to questions as to the property to be divided or the mode of making the partition. The revenue officer, in determining these questions should they arise before him, acts only as a revenue officer and not as a court (whether a revenue court or a civil court). He is empowered to make an inquiry in such manner as he may deem necessary and thereafter, to make an appropriate order giving his reasons for the same. In our view, the scope of the second category of questions is quite limited and is concerned essentially with the modes and modalities of how the partition is to be carried out or given effect. It is difficult to see how a revenue officer, acting as such can be regarded as having the jurisdiction to award compensation in facts and circumstances similar to those at hand. This is so especially when his decision is to be based on a mere inquiry, whereas the question of compensation inter se the parties, if in issue, would be in the nature of a civil dispute requiring adjudication by a civil court of competent jurisdiction. In other words, by expressly empowering a revenue officer to act as a civil court only when determining the questions of title in terms of section 141, the law has necessarily excluded from his domain and jurisdiction all other questions which ought properly to fall within the jurisdiction of a civil court and require adjudication by such court. We are therefore of the view that in awarding the compensation of a sum of money by means of the impugned order, the EDO overstepped the bounds of his statutory powers. Section 142 did not empower him to decide or settle any amount by way of compensation, and this is all the more so when apparently this point was taken up by the EDO himself. He therefore acted without jurisdiction. It is well settled that an order made without jurisdiction can always be challenged by means of proceedings under Article 199 and therefore the objection regarding maintainability cannot be sustained.
11. Before proceeding further we would like to clarify one point which may otherwise cause confusion. Our foregoing observations with regard to the jurisdiction of the revenue officer are only to the extent that such officer does not have the jurisdiction to award a sum of money to any one or more of the parties to the partition proceedings. However, that does not mean that the revenue officer, in carrying out the partition exercise, cannot take the value of the land into consideration at all. It may well be the case that the partition proceedings before a revenue officer may involve two or more different properties which have (widely) different values. It may be that in an appropriate case, while ascertaining what portions of the different properties are to be assigned to which of the parties, the revenue officer may have to determine the values of the respective properties.
However, in the end he can only make an order that partitions the properties into different portions which are to be assigned or allocated to different persons and that is all. If he concludes that no matter how the partition is carried out one or more of the parties would not be properly compensated, then he cannot take it upon himself to award a sum of money to the party or parties that he may regard to be in deficit. That is a matter that must be left to the decision of a civil court of competent jurisdiction. At the most, the revenue officer can draw attention or advert to this point in his order, and then leave it to the aggrieved party to seek its appropriate remedy in a court of law.
12.We now turn to consider the impugned order itself. The EDO has sought to give effect what can be described as the spirit of the Earlier Order. He sought to act in an equitable manner and it is clear that he believed that in making the impugned order, he was giving effect to what had been intended by this Court. In other words, since some of the legal heirs had been deprived of the benefit of the disposed of lot by an act of the other legal heirs, the EDO attempted to redress the balance and place all the legal heirs on the same footing. We are of the view that, once the Earlier Order is read as a whole and in particular, when the portion thereof as reproduced above are kept in mind, it is clear that this Court did intend that all four of the legal heirs be placed on the same footing in terms of their respective shares in the estate of the deceased so that no one legal heir could gain an advantage over the others. However, where the EDO has fundamentally fallen into error, which is fatal for the impugned order, is to take the present day value of the disposed of lot.
This is not valid. As correctly pointed out by learned A.A.-G., the 25 ghuntas were in fact disposed of in 1998, i,e, about 14 years ago. It is but obvious that the present day value of the disposed of lot would be quite different from, and almost inevitably much higher than, the value in 1998. A computation made on the basis of the present day value is therefore entirely incorrect. If at all the EDO were so minded he ought to have attempted to ascertain the value as it prevailed in 1998. An indication of the huge discrepancy, and the enormous increase in the value, is given by the fact that in 1998 the 25 ghuntas were disposed of for a sum of Rs,15,000 only. It would seem that this was an entirely adequate and appropriate valuation at that time. On the other hand, the present day value has been determined as running into tens of lacs of rupees. It is quite clear that in 1998' the disposed of lot was agricultural land, or even if it could be regarded as having already come within the bounds of Dadu Town, its value was much less than what it is today. The order of the EDO awarding compensation cannot therefore be sustained both because it is beyond his jurisdiction for the reasons already explained and also because the basis on which the EDO has proceeded, and the values used by him, are in any case entirely inappropriate.
13. The second point that must be kept in mind is that it is clear from the relevant entry in the record that the 25 ghuntas were disposed of not merely by the present petitioners but also by the present respondent No,1. It appears that this aspect of the matter was not brought to the attention of this Court when the Earlier Order was made, and it seems that it is for this reason that it was directed, in the passage reproduced above, that both the present contesting respondents were to be compensated. The entry regarding the disposal of the 25 ghuntas does not appear lo have been challenged at any stage. If therefore compensation is made in favour of the present respondent No,1, she will obtain a double benefit in having received proportionately her share from the sale consideration when the 25 ghuntas were disposed of in 1998 and now also compensation in terms of the Earlier Order. This would clearly be inequitable and such a result could not have been intended by the learned Division Bench had the correct factual position been placed before it.
14. We are aware that the foregoing observations and the conclusion that we are about to draw from them may well be in the nature of a review of the Earlier Order. However, the present petition is being contested by the same parties and impugns an order made on the basis of the Earlier Order itself. We also note that at present neither of the learned Judges who comprised the Division Bench which made the Earlier Order is available in this Court, and we therefore are of the view that this point can and ought to be taken up by this Bench. An error to the extent of respondent No,1 being compensated is apparent on the face of the record and in our respectful view such error ought not to be allowed to remain.
15. In view of what has been stated above we conclude that the impugned order was without jurisdiction and it is therefore hereby set aside. The matter is remanded to the EDO concerned for implementation of the Earlier Order in light of what has been stated herein above. In other words, the matter of compensating the legal heirs of the deceased on account of the prior disposal of the lot of 25 ghuntas is confined only to the present respondent No,2 since the present respondent No,1 was herself party to the transaction whereby the lot was disposed of. Furthermore, since the disposal took place in 1998 when the property was agricultural in nature, the present respondent No,2 shall (relative to her share in the 25 ghuntas) be compensated proportionately from the shares of the other three legal heirs in terms of acreage alone and such area (or areas) shall be taken from the other lots of agricultural property which formed part of the estate of the' deceased.
The choice in this regard shall be that of the present respondent No,2 subject to any objections taken by the other legal heirs before the EDO. The EDO (or equivalent revenue officer, howsoever designated) shall now dispose of the entire matter within a period of forty five (45) days from today, but shall proceed after giving due notice to the legal heirs. However, should any legal heir fail to appear before him either herself or through duly instructed counsel the EDO shall nonetheless proceed with the exercise to ensure expeditious disposal in light of what has been stated herein above.
16. Petition stands disposed of in the above terms.