ABDUL LATIF KHAN, J.--- Through instant petition, the petitioner seeks Constitutional jurisdiction of this Court, praying that:- "By acceptance of instant writ petition, the judgments/orders of respondents Nos. 1 and 2 may be declared illegal, void in violation of law, in excess of jurisdiction and as such ineffective upon the rights of petitioner. Petitioner may further be granted any other appropriate relief, which the Court deems fit. "
' Arguments heard and record perused.
2. A perusal of record reveals that respondent No,4 Syed Sikandar Shah moved an application to DOR, Abbottabad for cancellation of mutation attested in Khasra No,6 Shamilat Deh measuring 113 kanals, 2 Marlas situated in Moza Batang, Tehsil and District Abbottabad, consequent upon decision of the civil Court dated 23.12.2009, reports were obtained by the DOR that the applicant can seek remedy by filing partition application in the revenue Court to get his share separated. A review petition was also filed. The learned Additional Commissioner Hazara Division, Abbottabad by dint of order dated 24.12.2011 directed revenue authorities that no further transaction shall be made in the suit property till proper partition in due course of law. It is further directed that if respondents Syed Asghar Hussain Shah and others have sold more than due share then the same adjusted and those mutations which a e yet to be attested may be considered only to the share of executant, so that the land owner in the shamilat land may not be deprived of their valuable rights. The order of Additional Commissioner was questioned before Board of Revenue, KPK, Peshawar who vide impugned order dated 3.2.2014 observed that the transaction in suit land in Shamilat are in violation of the notification issued by the Board of Revenue, KPK as being more than actual share in Shamilat and also observed that lifting of ban will also be against decision of Civil Court dated 23.12.2009 and as such the revision filed by the person stands dismissed.
3. The petitioner based their claim on the ground that that transfer of Htssadari has not been banned by any law or decision and vendee would step into the shoes of vendor and in case vendor had enjoyed Hissadari could not be stopped to transfer the same to the vendee. It is also added that the notification referred is unfounded and in violation Of Constitution.
4. The revenue record available on file speaks about the property in respect of Shamilat Deh bearing Khasra No,6/old Kasra No,l. Though there was confusion regarding measurement of land however that is not disputed to be 113 kanals, 2 Marlas at the present. Right from 1872 to 1948- 49, the entry of 'Maqbooza Malikan' has been incorporated in 'Khana Kaasht' however in the year 1958- 59, Wilayat Shah and others have been shown recorded in Ithana Kaasht' whereas Jamabandi for the year 1965-66, entry is shown as Maqbooza Malikan. Later on in the year 1972 gift Mutation No,271 was attested in the name of Nazir Hussain Shah and others to the extent of 300/313 shares out of 313 kanals, 2 Marlas which was wrong as the actual area was 113 kanals, 2 Marlas as they are donoRs, Wilayat Shah and others were entitled to transfer only to the extent of their shares and not more than that and as such the mutation No,271 could be amended accordingly however if the transfer made more than due share in Shamilat it would be subject to share in proper partition.
5. It is pertinent to mention that the owners recorded in column of cultivation as Hissadar in Shamilat Deh can only transfer property to the extent of their share and not more than that as all the owners of the A revenue estate has the right in Shamilat Deh and only in the garb of possession the persons recorded as Hissadar in the column of cultivation could not deprive the original owner of Shamilat in the Shamilat land. The entire Shamilat of the village cannot be sold by those persons beyond their due shares. The notification issued by the Board of Revenue in order to eliminate the apprehension of sale more than due share in Shamilat had the force of law and shall remain in field to curtail the illegal transfer beyond the due share by Hissadar owners under the garb of Hissadari to the exclusion of original owners of Shamilat.
6. It is by now established that vendor cannot transfer a better title than that he possesses at the time of transfer. Mere fact that mutation has been attested in favour of some of co-sharers would not extinguish title of other co-shareRs, Section 42 of the Land Revenue Act, 1967 provides the mechanism for transfer of rights in periodical records. The word "purchase" used in subsection (1) of section 42 would oust the attestation of mutation in exclusive Hissadari mutation in possession.
Ownership has been defined by "Salmond on jurisprudence" that it is relationship between a person and any right that may be vested in him. According to Austin "ownership" is a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration. Holland defines ownership "as a plenary control over an object." According to him ownership is exercise in its primacy and fullest sense over physical objects only.
7. It is pertinent to mention that there can be no restriction on the sale of Shamilat land or share in Shamilat as it will disturb the right of ownership which would amount to a clog on ownership which is alien to law. No doubt that there is no embargo on Hissadar owner, to sell his share in Shamilat however the Revenue Officer has to ensure that the sale should not exceed vendor's share recorded in the periodical record of rights and revenue officer shall be responsible to attest a corresponding mutation in the ownership column of Shamilat Deh so that the share of vendor is proportionately reduced in order to discourage the double sale both in column of cultivation and column of ownership and to eliminate fraud by selling the property twice in both the columns. The revenue authorities have to settle modalities in this respect to eliminate this practice and to restrain the double sale of the property both in column of ownership and cultivation. The purchasers acquired land in column of cultivation as hissardars are not treated owners by the Revenue Officers in partition proceedings and similarly are not paid the compensation amount in acquisition process made in terms of Acquisition Act 1894, despite therein purchase and possession over the property, which is not in line with law. Admittedly there is no provision in Land Record Manual as well as in Land Revenue Act.regarding separate sale of column of cultivation and column of ownership. In the year 1959 vide Martial Law Regulations, 1964 ban was imposed on the partition of land with the purpose to discourage the division of holding in order to get more produce from property. Had there been no ban on partition there would have no transaction at all in hissadari out of cultivation column of the jamabandi. The owners of land due to this ban had made out a recourse through private partition which is known as Hissadari which was later on recognized through judicial opinion. The foremost judgment in this regard delivered by the august Supreme Court of Pakistan in caser of "Muhammad Muzaffar Khan v. Muhammad Yousaf Khan" PLD 1959 SC(Pak) 9, wherein it is observed that vendee of the co-sharer in 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 the same to the vendee, so long as there is no partition between the co-sharers, the vendee would be regarded as stepping into the shoes of vendee 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 would be entitled to retain possession of share till actual partition by metes and bounds take place between the parties. This Court in case of "Kala Khan v. Shah Hussain" reported in 1983 CLC 684 has introduced the philosophy of adjustment and define it in legal sense of the word, accommodation, correction, reconciliation and its associated words are adjustment of loss. It was also observed that vendee cannot ask for partition of that part of property of which vendor was not in possession excluding his other joint land. Sale of hissadari possession subject to partition carries with it equitable right of adjustment, same would be lacking if part partition allowed and contrary view may create great hardship for bona fide purchaser by shrewd and clever joint owneRs, The sale of hissadari ownership has been considered in case reported in PLD 1993 SC (AJ&K) 4 with the observation that sale in column of cultivation can be made subject to the condition that it should not be more than the share in Khewat/Khata and this view gave rise to transaction of sale/purchase in column of cultivation, which resulted into litigation as the general public considered it sale of column of cultivation at a higher pedestal than the sale in column of ownership which is commonly known as "Sale in air". The Board of Revenue has imposed ban on sale in column of cultivation except those transactions effected through validly attested mutation, the sale in column of cultivation was introduced simply because of the ban on legal partition. Similarly there exists no rule regarding sale/purchase out of column of cultivation and due to this reason, the litigation has been increased resulting into the worries/hardships to the general public.
8. The most important aspect escaped notice of the Provincial Government/Board of Revenue to frame rules in respect of partition of lands which were probably nbt framed in the year 1968 due to ban on partition of lands. For partition of land, there is no mechanism to the effect that how partition could be made with special reference to the owners who has purchased the property in column of cultivation. There is no provision in the Land Revenue Act in the light of which mode of partition can be made and the existing more of partition (Naqsha Bai, Naqsha Jeem) is not based upon any provision of law. The tatimas carved by the Patwari Halqa give rise to the series of litigations as these are commonly carved in drawing room instead of spot. The Revenue Officer and Girdawar Circle have to supervise the carving of tatimas of allocation of properties to the owners and in this respect should submit their report regarding causing tatimas in their presence and to ensure transparency in the matter. Partial partition should not be allowed and the entire properties owned by the parties shall be included in the application irrespective of the possession of properties. The partition proceedings are in fact an application simple to get the property partitioned and it has been wrongly used to be treated as suit. It must be simplified to the possible extent. It should be dealt with summarily and be heard on day to day basis in shortest possible time. Frivolous claims of title should not be taken as hurdles in ways of those proceedings however genuine title dispute be dealt with in terms of provisions of West Pakistan Land Revenue Act, 1967. It is also observed that list of Shamilat owners is not readily available with Patwari Halqa and when needed it takes time to be performed and caused hardships of various nature to the public at large. To curtail their inconvenience Patwari Halqa/revenue official should prepare it and place on the index page of the jamabandi and be made available on payment of normal fee and its delivery to the applicant should not be delayed on flimsy grounds. The Provincial Government shall in this regard consider the matter and frame rules to this effect as well as on the issue of Shamilat as there exists no rules regarding partition of Shamilat. Wajib-ul-Arz has got presumption of truth however the same could not meet the necessities of the day as the same has been prepared way back in the year 1947-48 or more than 40 years and could not meet the requirements and necessary modification to be proposed by the Government to meet the needs of the day.
9. Shamilat land has been defined as a tract of huge land, collectively owned by the village owners over which they would have a right either to reclaim the land themselves or allow others also to do so. The original owners were called as "Ala Maliks" and others who had reclaimed the land with their consent were called "Adna Malik". The Ala Malik had right to bring further Shamilat waste land under cultivation by digging wells or adopting some other means. In certain cases even Adna Maliks would have right to expand the area of their ownership by recalling "Shamilat land". However an Adna Malik could not allow stranger to bring the Shamilat land under cultivation. Persons who had reclaimed land as Adna Maliks as well as those who had been transferred rights only to a piece of land (without the right to Shamilat lands) were called "Malik Qabza".
Khewat (holding). A unit of land under agricultural independently owned is called a Holding (Khewat). Khewatdar. The owner of a land would be called the Khewatdar. The Khewatdar were collectively treated as owner of the village (Malkan Deh) to the extent of their individual or collectively private properties as Khewatdar. Such property belonged exclusively to them. It is possible that a single owner holds an entire Khewat or the Khewat is co-owned by the number of persons. As regard to Shamilat properties, the Khewatdar would enjoy collective rights of various nature. These rights are finally mentioned in the important document i,e, `Wajib-ul-Arz' wherein various customs and usages of the village are incorporated, contains the explanation to this effect and way to proceed with. It also contains a grazing rights of headman and rights of Adna Malikan were also taken note in it. The fundamental idea is that Shamilat land is not class of 'ownerless' land (Bila Malkan) but it is a land that is owned by the Khewatdar and its ownership is "Collective" in nature. Wajib ul Arz also contains the detail of village path (shahra-eAam) graveyard, Behk Mawaishian, watermill (Jandar) and procedure for (Burd, Baramad) rights on trees, (Guzarajat) and its use, way and mode of payment to persons who are extending services in village in different categories and their appointment and removal. Malkan Deh. Who enjoy a number of rights regarding village property, Malkan Qabza were those who owned only the land actually acquired by them and which was in their possession. They had no share in the Shamlat land of the village community or in the various right, profits and privileges vesting the propriety body of the village, Malikan Deh.
10. The Shamilat land can be partitioned if the majority of the original owners Khewatdar seeks the partition of the property owned by them on the basis of 'Maliya' being paid by the Khewatdar (as Hasb-e-Rasad Khewat) as well as this would depend on what exactly are rights of the village community or Khewatdars described in the Wajib ul Arz. Whenever a Khewatdar transfer any khewat land, the buyer would become entitled to prorate co-ownership right in the Shamilat land only if it is so agreed between the seller and the buyer specifically in terms of provisions of West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959. The original owner the Khewatdar would also be competent to transfer only his share in Shamilat land to a vendee if he is in exclusive possession of such share and the vendee in possession become entitled only to the share purchased by him. When land is sold or transferred by any owner in column of cultivation and dispose of his property and his name remains intact in column of ownership would create problems not only for the purchaser of cultivation column as well as for the persons who purchase the ownership right from such owners who had already transferred his share in column of cultivation. Needless to mention that by selling the land in column of cultivation the name of ownership shall automatically be removed from column of ownership corresponding share as mere entry in the column of ownership would not be helpful and at the time of partition, problems are created for the purchaser in column of cultivation. Shamilat land is partitionable with the consent of original owners and mode of partition must be in accordance with their share `Hasb-e- Rasad Khewat' and no owner can transfer Shamilat deh in excess of their share. The principle that no one could alienate nor retain the possession under the garb of hissadari, beyond his share in joint Khata equally applies to possession of a co-sharer over Shamilat deh.
11. A plain consideration of the matter in our opinion, leads to the conclusion that the following directions shall be followed by the Provincial Government/Senior Member Board of Revenue in letter and spirit with immediate effect and submit the compliance report to the Additional Registrar (Judicial) of this Court accordingly. i) To issue a notification to the effect that Revenue Officer concerned shall be responsible to ensure that the vendor shall not sell the property in excess to his share in the garb of hissadari and those transactions already effected should be adjusted by deleting the names of owners from the column of ownership respectively and necessary corrections be made in the revenue record accordingly.
Ii) ' All the transactions made in column of cultivation as hissadar, the share of vendor in column of ownership shall also be effected through corresponding mutation in ownership column and all those mutations attested in column of cultivation, corresponding entries to that effect shall be made in column of ownership and rights of the parties are to be adjusted accordingly in order to eliminate the re-sale/double sale of same property both in column of cultivation and column of ownership.
Iii) Similarly in Shamilat land sold in column of cultivation, the share of vendor should be reduced proportionately in the column of ownership in furtherance of notification issued on 10.6.2004 and further clarification dated 6.9.2004, and no further sale be made in cultivation column beyond the share of vendor, in future.
Iv) The SMBR/Revenue Officer shall frame rules with regard to the partition of land with special reference to preparation of Naqsha Bai and Naqsha Jeem, mode of partition and to make out a methodology in order to meet the problems faced by the general public in partition proceedings. A period of 4 months shall be fixed for disposal of partition proceedings/application before revenue hierarchy in trial in order to curtail the agony of litigants. v) The SMBR is also directed to frame rules regarding modification in Wajib ul Arz in order to make it applicable to the needs of the day as the same prerred at the time of settlement carried out at different times in different areas mostiy about more than 40 years back.
Vi) No further mutation shall be allowed to be attested in column of cultivation as hissadari and to this effect too notification be issued accordingly.
Vii) To issue notification that those who acquired lands through hissadari transaction be given weight, the payment of compensation bythe Collector in acquisition of lands, properties to their share in column of ownership, and compensations should not be given to those whose names still exists in column of ownership despite sale of that share in column of cultivation in hissadari.
Viii) To frame rules in respect of sale/purchase by owners who acquired and in column of cultivation from hissadar to give effect only to the extent of his share proportionate to the column of ownership and be treated as owner for the purpose of partition of land in terms of Section 135 of the Land Revenue Act, 1967. ix) Notification be issued with directions to the concerned revenue officials to prepare the list of owners in Shamilat and be placed with the index of Jamabandi along with Shajra Nasab, so as to make available to general public like extract from Jamabandi on payment of routine fee in terms of relevant rules.
12. In view of what has been noticed above, we find no merit in the instant petition, which is accordingly dismissed.
' A copy of this judgment be sent to the SMBR and Law Department KPK, Peshawar.