' QALANDAR Ali KHAN, J.---This revision petition by Haji Fazal Ghafoor and seven others is directed against the judgment/decree of Additional District Judge-IV, Mardan, dated 21.05.2014, whereby, appeal of the petitioners was dismissed and judgment and decree of learned Civil Judge-VIII, Mardan dated 19.11.2012 in case No,21/1 was upheld.
2. The case/suit No:21/1 was lodged by the petitioners/plaintiffs for declaration of their ownership and possession in respect of land measuring 05 Kanal, 11 Marla out of Khasra Nos.4208/1, 4208/2, 4209/2 and 4206/2/1 vide partition mutations Nos.1577 and 1578 attested on 29.11.2008 on the basis of applications for partition bearing No, 114/9 Nim dar Nim and 115/9 Nim dar Nim decided on 26.09.2008. The petitioner also prayed for restraining the respondents from interfering in their rights of ownership and possession, and prayed for a decree for possession as well as mandatory injunction.
3. The suit was resisted by the respondents/defendants and in their written statement, they raised several objections, including objection to the effect that the petitioners never sought official partition of the suit land, neither there was any order in their favour and that the partition mutations Nos. 1577 & 1578 were result of fraud and collusion between the petitioners and officials of revenue department. The respondents claimed that they were in possession of their own land and that they were not in possession of land belonging to others. They pointed out that petitioner No,1 had earlier moved application under section 3 of the Illegal Dispossession Act, 2005, which was dismissed by the learned Additional District Judge-I, Mardan on 16.03.2010.
4. The divergent pleadings of the parties led to framing of as many as ten issues, whereupon evidence were recorded by both the parties, but the suit was dismissed on 19.11.2012 by the learned Civil Judge, and appeal was also dismissed by the learned Additional District Judge-IV, Mardan yide the impugned order dated 21.05.2014.
5. Arguments of learned counsel for the parties heard, and record perused.
6. The perusal of impugned judgments/orders of learned Courts below would show that while not questioning partition proceedings in respect of the suit land before the revenue authorities and even partition mutations attested on the basis of such proceeding, both the trial as well as appellate Courts declined the relief, prayed .For, to the petitioners on the sole ground that they had not filed a separate execution petition thereby getting possession of their shares whereafter they could have approached the Court for a decree for declaration, mandatory injunction and possession against the respondents.
7. It is, indeed, strange that the petitioners were denied decree for declaration, mandatory injunction and possession against the respondents even after official partition between the parties was held valid by both the Courts in their impugned judgments. It seems that both the Courts below lost sight of the fact that in partition proceedings both the parties are deemed as decree holders once their respective shares are determined, regardless of the fact that one of the party is petitioner and the other is arrayed as respondent in the proceedings (1981 CLC 409 Karachi). A co- sharer, in case of partition of the joint land/property can bring a civil suit for possession within 12 years from the date of partition; and further where there is no joint land, no application for partition is competent (PLD 1951 Lahore 111). In view of the above stated legal position, the main objection of the respondents to the effect that the petitioners should have filed their own separate application or execution petition for partition evaporates in the thin air.
8. The record, on the other hand, shows that though application of the petitioners for setting aside ex parte proceedings against them in the partition proceedings initiated on behalf of other co- sharers was not accepted and their appeal was also dismissed by the District Collector/District Officer (R & E), Mardan, vide order dated 22,09.2003, yet, in accordance with their subsequent application for partition and on the basis of compromise during proceedings on the revision petition, the petitioners were allotted their shares measuring 02 Kanal 16 Marla in Khasra No,4206/2/1 and land measuring 02 Kanal 15 Marla in Khasra Nos.4209/2 and 4208/2 in the partition proceedings vide order dated 26.09.2008 of the Tehsildar with powers of Assistant Collector First Class, Mardan, leading to attestation of mutations Nos.1577 and 1578 on 29.11.2008, on the basis of aforementioned two separate orders of the Tehsildar. Needless to say that `Tatima' was also carved out on both the mutations.
9. It is noteworthy that despite questioning the partition mutations as forged and fake in their written statement, the respondents neither challenged orders of the Tehsildar dated 26.09.2008, nor the partition mutations attested on 29.11.2008, therefore, the orders of the Tehsildar in the partition proceedings and the partition mutations attained finality; and the land lost its status as a joint land/property. The revenue record, also comprising `Khasra Gardawari' and record of rights, would further show the petitioners in possession of the specific shares allotted to them as consequence of partition proceedings, which have never been challenged by the respondents.
10. Having said that, the petitioners were left with no other option but to approach the Civil Court for declaration making partition a basis Of their suit, with prayer for mandatory injunction thereby restraining the respondents from interference in the shares allotted to them in the partition proceedings and also for possession in case of their dispossession, especially when they were declined remedy under section 3 of the Illegal Dispossession Act,. 2005, by the learned Additional Sessions Judge-I, Mardan, vide order dated 16.03.2010. It may, however, be added here that though included in the plaint, Khasra No,4208/1 does not find mention either in the partition orders in favour of the petitioners by the Tehsildar or in the partition mutations attested on the basis of orders of Tehsildar dated 26.09.2008.
11. It may not be out of place to point out here that the learned counsel for the petitioners was candid in his arguments when he clearly stated that the petitioners would not be claiming that part of the land which has not fallen to their share in the partition and further that the petitioners would assert their rights in respect of only that part of the land that has fallen to their share as a result of partition. Interestingly, the learned counsel for the respondents also stated at the bar that the respondents are in possession of their own share in the suit land and that they have got no concern with the share of either the petitioners or other owners in the suit land.
12. In view of the foregoing discussion, the instant revision petition is accepted and the impugned orders of both the trial Court dated 19.11.2012 and that of the learned appellate Court dated 21.05.2014 are set aside. Resultantly, suit of the petitioners/plaintiffs, as prayed for, is decreed, to the exclusion of Khasra No,4208/1, with no order as to costs.