' Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Shah Karim Bakht & 1 another, the petitioners have challenged the judgments/orders passed by the revenue hierarchy with prayer that the same be declared void, illegal, without lawful authority and having no legal effect upon the rights of petitioners.
2. Brief facts of the case are that Respondent No, 1, Mst. Jehan Zeba filed partition application under Section 135 of the Land Revenue Act; 1967 in the Court of learned Assistant Commissioner. Kabal, Swat for partition of suit land being joint owner fully detailed in the heading of the application.
3. The respondents present petitioners were summoned, who submitted their written reply, wherein they raised several objections both legal and factual by alleging that applicant with her free will had transferred through "Bakhsheesh" her share in the property under partition to the father of petitioners in his life time and since then they are coming into possession of suit property as owners, so, the land is not joint property open to partition. Inter alia, other pleas.
4. The learned Assistant Commissioner after hearing arguments of the parties dismissed the plea of present petitioners and proceeded further for the partition of land jointly owned by the parties and in this respect appointed Tehsildar Kabal as local commissioner to submit complete report regarding mode of partition of Khasra numbers included in the Khatas along with directions to submit full description of the trees, graveyard, mosque. Ghairmumkin Rasta passage etc. Against the said order, the present petitioners filed an appeal before the learned District Collector/Deputy Commissioner Swat who after hearing dismissed the same appeal vide judgment/order dated 05.3.2014.
5. Present petitioners feeling aggrieved from the two orders of above discussed Revenue Courts, filed revision petition before the learned Additional Commissioner, Malakand which was also dismissed vide judgment/order dated 27.5.2014, where after, the petitioners filed revision petition before the learned Senior Member Board of Revenue. Khyber Pakhtunkhwa. Peshawar, but that too was dismissed vide impugned judgment/order dated 18.02.2015, hence, instant writ petition.
6. Valuable arguments of learned counsel for the parties heard and available record perused with their able assistance.
7. From the perusal of the record, it reveals that the parties inherited the property in question had one son Abdul Akbar Khan, the /predecessor of petitioners and one daughter Mst. Jehan Zeba, the impressm ent Respondent No, 1.
8. The sister of late Abdul Akbar Khan and paternal aunt of petitioners filed partition application under Section 135, West Pakistan Land Revenue Act, 1967 on 15.3.2013, which was contested by the present petitioners through filing replication for dismissal of partition application on the grounds mentioned therein that question of title is involved as applicant Mst. Jehan Zeba has given her share of joint land as "Bakhsheesh" to their predecessor Abdul Akbar Khan vide alleged Iqrar-Nam dated 28.3.1982, so, applicant is not joint owner and her ownership is disputed and they are intending to challenge the entries on her name in the civil Court. Later on, present petitioners instituted civil suit on 16.05.2013 for declaration etc on the basis of alleged above mentioned "Bakhsheesh" deeds and for correction of revenue record.
9. The learned Additional Assistant Commissioner, after hearing both the parties, disallowed the plea of petitioners vide order dated 30.4.2013 and proceeded further by accepting application of Respondent No, 1 for partition of joint agriculture land and in this regard- appointed a commission for partition of jointly owned land under the provisions of ibid Land Revenue Act, 1967.
10. The order of learned Additional Assistant Commissioner was maintained up to the highest Revenue forum .i,e, Member-II, Board of Revenue Khyber Pakhtunkhwa vide judgment/order dated 18.02.2015, the same is reproduced below: "Record of the case would reveal that both the parties are joint co-owner and co-sharer. The request of the present respondent Mst. Jehan Zeba is right to separate her shares and rights from the joint property. Naqshajat Alif, Bay and Jeem have been prepared in accordance with the law and available record. Moreover, Ahle commission has been appointed by the trial Court to carry- out partition. The order dated 30.4.2013 by the trial Court is in accordance with law and has rightly been maintained by the appellate as well as revisional Courts. In the circumstances, I have no option but to dismiss the revision petition and maintain the orders passed by the lower Courts."
11. From the perusal of Revenue record/Jamabandis, it transpires that the respondent Mst.
Jehanzeba and legal heirs of Abdul Akbar Khan are entered as joint owners in all Khatajaat mentioned in the partition application, so under Section 135 of the West Pakistan Land Revenue Act, every co-sharer/joint owner in Agriculture landed property can legally move an application for partition of his/her/their joint land under the law to separate her/his/their respective shares with possession. The relevant provision of law is reproduced as below: ' Section 135: Application for partition. Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if:
(a) at the date of application the share is recorded under Chapter VI as belonging to him, or
(b) his right to the share has been established by a decree winch is still subsisting at that date; or
(c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof.
12. Similarly, under Section 52 of West Pakistan Land Revenue Act, 1967, entries in the revenue record, particularly in the column of ownership and that also admitted one have strong presumption of correctness, so, the applicant being entered in the revenue record as joint owner had lawful right to apply for partition in order to separate her share with exclusive possession.
13. The stance taken by legal heirs of Abdul Akbar Khan in the partition proceedings that under Section 141 of the ibid Act, till resolution of question of title by the competent Civil Court, partition of suit land could not be proceeded further and prayed for dismissal of partition application by further contending that partition proceedings could not be kept continued till determination of question of title, the same contentions raised are not tenable in the eye of law. As this Court has to see as to whether revenue Court or civil Court on the strength of two alleged unregistered and highly objected written deeds can halt the partition proceedings or dismiss the same, the answer would be "loud no", for the reason that applicant being joint owner can file partition application and petitioners being joint owners are taking benefits from the joint property in shape of produce, by putting the Applicant/Respondent No, 1 busy in endless civil litigation to deprive her from getting her lawful benefits/usufructs of her Shari share from the joint land. The rights to property of applicant/respondent are protected under Articles 23 & 24 of the Constitution of Islamic Republic of Pakistan, 1973.
14. As discussed above, under Section 52 of the ibid Act strong presumption of correctness is attached to the entries in revenue 1 record, unless contrary is proved or a new entry is lawfully substituted. The relevant provision of law is reproduced as under: ' Section 52: Presumption to correctness of the record. Any entry in a record-of-rights shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
15.The arguments of learned counsel for the petitioners that the sons of Abdul Akbar Khan etc had filed civil suit for establishing their title in respect of suit land allegedly given to their father as Takhsheesh' (4.414). Which factum of alleged Takhsheesh' is not established and petitioners are trying to establish it in the civil Court and that matter is still pending disposal, therefore, the contention of petitioners that the partition proceedings be halted/stayed till decision of the above- referred civil case in view-of Section 141 of the ibid Act has got no force and is not tenable arguments as the applicant/lady had denied the alleged factum of Rakhsheesh' to her brother Abdul Akbar Khan. Moreover, the said Abdul Akbar Khan had not filed any suit for declaration of factum of "Bakhsheesh", so. Petitioners are legally bound to first establish the factum of "Bakhsheesh" in favour of their late father and if they are succeeded in getting final decree in their favour then under the provisions of Section 53 of the ibid Act they would be entitled to implement the decree by making entries in the revenue record in their father's name and then in favour of their names, so prior to that entries existed in the name of applicant Mst. Jehan Zeba in the revenue record are lawful and valid entries and correctly considered by the revenue Courts, therefore, revenue hierarchy below had correctly proceeded further for partition.
16. In our society usually in the rural areas Pakistani women folk are deprived from their vested constitutional rights to property on one pretext or the other, so. In the instant case petitioners are causing delay in the partition process to fetch more produce, thus it has become common wrong practice that usually the entries in the name of womenfolk at the time of partition proceedings are challenged and from this litigation one party is benefited. So, the petitioners could not take refuge in provisions of Section 141 to halt partition proceedings in the garb of plea of resolving of question of title first. Learned counsel for the petitioners submitted various judgments of the Hon'ble Supreme Court of Pakistan as well as this Court titled as 2001 CLC 1847, 1996 M LD 1102, PLD 2016 page 8, 2002 CLC 739 and 1986 SCM R 94. All the above referred judgments are altogether relating to different facts grid circumstances and are not attracted to the facts and circumstances of the present case, so, could not be pressed into service, brother Abdul Akbar Khan being male members who are taking benefits/usufructs from the jointly owned property want to halt suspend the partition proceedings on the assertion that question of title exists, which under law could not be stayed. In this respect reliance is placed on the case decided by Hon'ble Member Board of Revenue N.W.F.P. (K.P.K) titled as "Shams-ul-Haq vs Aurangzeb and others" (2003 CLC 87), wherein it is held as under: "Partition proceedings can only be stayed when a. Revenue Officer after examining the case decides that question of title is involved. Partition proceedings cannot be stayed merely on the assertion of the party that such a question exists, neither in law no in equity Is there any warrant for the proposition that partition proceedings must be stayed the moment a party utters that a question of title is involved. Revenue Authorities being in possession of Revenue Record, wherein a party has been re-lorded as co-sharer are bound to proceed with the application of partition of the joint land in accordance with the law,"
18. However, if at the most, the petitioners are succeeded in getting final decree in their favour up to Hon'ble Supreme Court of Pakistan, then their names will be entered in the revenue record in view of Section 53 of the ibid Act with possession given in partition proceeding to I he respondent. So before having decree in their favour, they cannot halt/stay of partition proceedings or pray for dismissal of " partition application under the law.
19. This Court after giving deep thought to the facts and circumstances of the instant case and arguments advanced by learned counsel for the parties as well as examining law on the subject, reaches to the conclusion that the revenue hierarchy has acted in accordance with law, while deciding the application filed by petitioners for suspension of partition proceedings and had correctly dismissed their application for rejection of partition application and had proceeded further for partition of joint land, thus, the findings arrived at by the learned for a below of Revenue hierarchy are well reasoned, lawful, with lawful authority, so, are upheld as no miscarriage of justice or injustice to petitioners have been caused or pointed out, so, need no interference of this Court under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973, rather halting of partition proceedings for indefinite period would definitely cause injustice to other joint owners i,e, Respondent No, 1.
20. Thus, in view of what has been discussed above, this petition being bereft of merits stands dismissed, however. The learned Assistant Commissioner concerned is directed to conclude the partition proceedings as early as possible in view of principles enumerated in the National judicial policy by the Hon'ble Supreme Court of Pakistan within four (4) months positively.