1. MUHAMMAD AZAM KHAN, C.J.--- The captioned petition for leavetoappealarisesoutofthejudgmentoftheHighCourt dated 4-10-2011 whereby Writ Petition No.195 of 2003, filed by the petitioners herein, has been dismissed.
2. 2.Necessary facts for disposal of the petition for leave to appeal are that the respondents filed an application for partition before the Revenue Assistant Dhirkot, which was accepted and the land was ordered to be partitioned. Feeling aggrieved the petitioners, herein, filed an appeal before the Collector which was dismissed. A revision petition before the Commissioner was also dismissed.
3. Dissatisfied from the order passed by the Commissioner, the petitioners moved an appeal before the Board of Revenue. The appeal failed and review petition was also dismissed. The petitioners filed Writ Petition No.195 of 2003 against the order passed by the Board of Revenue. The learned Chief Justice in the High Court dismissed the writ petition through the impugned judgment dated 4-10-2011.
4. 3.Sardar Atta Ellahi Abbasi, counsel for the petitioners, argued that the judgment of the High Court is not maintainable. It is against the law and record. The lower tribunals as well as the High Court failed to consider the record. Misreading and non-reading of record is apparent from the orders recorded by the revenue authorities as well as the High Court. He contended that the documentary evidence pertaining to the sale-deed and the Revenue Record have not been considered by the Revenue Officers. The High Court has not considered this aspect of the case. The learned counsel contended that the question of title is involved in the case. The learned Chief Justice in the High Court has not considered the question of title. The learned counsel forcefully argued that the Revenue authorities were not necessary party as under section 6 of the AJ&K Board of Revenue Act, 1993, the orders of the lower authorities merge into the order of the Board of Revenue. The learned counsel referred to and relied upon the case reported as Zahid Mehmood Shah and 24 others v.
5. Azad Government and 14 others (2011 SCR 159). Lastly the learned counsel argued that the petitioners have made improvements over the land. The question of improvements has not been considered by the Revenue authorities and also by the High Court.
6. 4.Respondent No.2, Muhammad Ishaque, appeared in person and presented written arguments whereby he defended the judgment of the High Court as well as the lower forums. In the written arguments he took the stand that the parties are co-sharers in the land. Non-petitioners moved an application for partition of the land and after considering the record, the Revenue Assistant passed an order for partition of the land, which was perfectly legal. No question of title was involved in the case. The Collector, Commissioner and the Board of Revenue in appeal as well as in the review proceedings considered all the record and delivered the judgment in a legal fashion. The High Court correctly dismissed the writ petition on the ground that there is no legal error or violation of any law pointed out by the petitioners.
7. 5.I have heard the learned counsel for the petitioners and perused the written arguments filed by non-petitioner No.2. I have also perused the whole record appended with the petition for leave to appeal. The record reveals that the non-petitioners moved an application for partition of the land before the Revenue Assistant, Collector 1st Class Poonch, on the ground that they are co-sharers.
8. The respondents are in possession of more land than their shares. After necessary proceedings the Revenue Assistant ordered for partition of the land on 17-10-1999. This order was maintained up to the Board of Revenue. The learned Chief Justice in the High Court dismissed the writ petition on two grounds; firstly that the Revenue authorities have not been arrayed as party in the writ petition and secondly that the findings of the lower tribunals are based on record, therefore, the writ petition is not maintainable.
9. 6.I have also considered the argument of the counsel for the petitioners that the orders passed by the Revenue Assistant, Collector and the Commissioner merged into the order of the Board of Revenue, therefore, they were not necessary party. The argument has no force because in the writ petition the petitioners challenged the orders passed by the Revenue Assistant, Collector, Commissioner and the Board of Revenue. Only the Board of Revenue was arrayed as party. The other Government functionaries were not impleaded in the line of respondents. It is by now a well- settled law that if a necessary party is not impleaded in the line of respondents, no order can be passed against the said party. This Court in the case reported as Muhammad Resham Khan v.Chairman Inspection Team and 3 others 1990 CLC 1355observed as under:-- "Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (I) the Chairman of the Inspection Team, (II) Azad Jammu and Kashmir Government, (III) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (IV) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word "person" is defined in section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The definition is reproduced below:-- "44.(1)xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (2)xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (3)xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (4)xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (5)In this section, unless the context otherwise requires, 'Person' includes anybody politic or corporate, any authority of or under control of the Council or the Government and any court or tribunal other than the (Supreme Court of Azad Jammu and Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defence Services."
10. It is clear that the Inspection Team is a 'person' within the meaning of the above definition and is not inter-changeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone."
11. 7.I have perused the whole record including the judgments of the lower tribunals and the written arguments submitted by non-petitioner No.2. It is an admitted position that the parties are co- sharers in the land and if one party claims that the land in possession of the other party is in excess of its marginal share, then it is enjoined upon the Revenue Assistant to order for partition of the land according to the shares. Moreover it is the right of a co-sharer to apply for partition of the land and get the land partitioned and entered in the Revenue record in separate khewat and khata numbers. The orders passed by the Revenue authorities and the judgment of the High Court are perfectly legal. No doubt, if the findings recorded by the lower tribunals are based on no evidence or are against the record, then the High Court may interfere with the findings of the lower tribunals under extraordinary jurisdiction vested in it under section 44 of the AJ&K Interim Constitution Act, 1974 but in the present case the findings recorded by the lower tribunals are based on the record.
12. The High Court was justified in dismissing the writ petition.
13. The result of above discussion is that finding no force in this petition for leave to appeal, it is hereby dismissed with no order as to the costs. As the petition for leave to appeal has been dismissed, the application for stay order is also dismissed.