MUHAMMAD NASIR MAHFOOZ, J.---Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Ghani Khan, the petitioner has made the following prospective prayer:-- In the light of above and many other grounds to he advanced at the time of arguments, it is therefore, humbly prayed that by acceptance of the instant writ petition the orders of respondents Nos. 34 to 37 dated 18.03.2013, 04.06.2014, 30.11.2015 and 10.05.2016 respectively on the application of respondents Nos. 1 to 14 for partition of certain property may please be declared as illegal, void, without lawful authority, without jurisdiction and of no legal effect.
Consequent upon the above declaration the orders passed by respondents Nos. 34 to 37 may please be declared null and void and the aggrieved party may be directed to approach competent forum for any grievance. they."
2. Brief but necessary facts giving rise to the present writ petition are that the respondents Nos. 1 to 14 filed an application for partition in respect of certain landed property in shape of Shamilat known as "Almosuma Sra Khapa Amandara Khandao" situated with the local limits of Batkhela, Malakand. When put on notice, the present petitioner submitted written reply raising various legal and factual objections. The learned Assistant Collector/Assistant Commissioner Batkhela, respondent No. 34 vide an order dated 02.04.2014 accepted the application for partition of the respondents Nos. 1 to 14, wherein Tehsildar Batkhela was directed to visit the spot, record statements of the parties and submit his detailed report at an earliest. The said order was assailed by the petitioner before the learned Deputy Commissioner/Collector Malakand, respondent No. 35, who vide order dated 04.06.2014 dismissed the appeal. Still not satisfied, the petitioner took the matter to the Court of learned Additional Commissioner Malakand Division at Saidu Sharif Swat, respondent No. 36 by filing revision petition, which was also dismissed vide order dated 30.11.2015.
Finally the petitioner approached the Court of learned Member Board of Revenue, Khyber Pakhtunkhwa Peshawar, respondent No. 37, who vide impugned order dated 10.05.2016 dismissed the revision petition by maintaining judgments/ orders passed by the revenue hierarchy. Having no other alternate remedy the petitioner approached this Court through the instant writ petition inter alia on the grounds mentioned therein.
3. Arguments of learned counsel for the parties heard at length and available record perused with their valuable able assistance.
4. As per stance of the petitioner the revenue hierarchy i.e. respondents Nos. 34 to 37 have got no jurisdiction to entertain the application of the respondents Nos. 1 to 14 for partition in respect of the suit property, which is residential in nature having no features of an agriculture land. Section 3 of the West Pakistan Land Revenue Act, 1967 envisaged that it shall not apply to the land which is occupied as site of a town or the land which have not been assessed to land revenue. In such state of affairs, the matter in hand falls outside the scope of revenue authorities. Learned counsel for the petitioner also referred to the definition of Estate and Rule 67-A of Land Revenue Rules. As against that, the respondents asserted that the petitioner is using delaying tactics just to deprive the respondents to enjoy the fruits of their lawfully possessed partitioned properties as per their respective shares with adding information that the question of title in respect of the suit property to the exclusion of Para 6 of the deed and issue of jurisdiction of the revenue hierarchy have already been put to an end by the august Supreme Court of Pakistan.
5. In the light of above divergent claims of the parties, it would be appropriate to reproduce Paras 5, 6 and 7 of the esteem judgment of the august Supreme Court of Pakistan passed on 19.12.1997 in Civil Petition No. 282-P of 1995, in earlier round of litigation commenced in the Court of learned Civil Judge Batkhela and finally reached to the august Supreme Court of Pakistan, which read as under:-
5. Mr. Saeed Baig, learned counsel appearing in support of this petition, has tried to make a reference to report of the Local Commission dated 25.5.1986 to contend that the position on the spot is that a major portion of the suit land has undergone a change in the past with the result that permanent structures have been raised and that same has lost its characteristics of agricultural land. According to him, Ghulam Rasool v. Ikram Ullah and another (PLD 1965 (W.P.)
Lahore 429) helps the petitioners. The precise plea is that the plaintiffs could not be provided with an opportunity at this juncture by resorting the Chapter -IX of the Land Revenue Act. 1967.
6. A perusal of the reported in Ghulam Rasool (Supra) shows that the suit brought before the Civil Courts was for possession by 'partition' of 1/2 share of the land measuring two kanals five marlas on the allegation that the parties were joint owners thereof in equal shares and as it was lying vacant since 1955 one of the defendants illegally let it out to the other defendant by a registered deed " who has constructed a factory on the premises in the absence of" the plaintiff. Here, the plaintiffs have been declared to be owners to the extent of 17 puchas and property in dispute i.e. 'hillock' can be partitioned under Chapter IX of the Land Revenue Act, 1967. It is not the case of the petitioners that the Revenue Authorities in Malakand Agency are not possessed of the jurisdiction to entertain or resolve the question regarding partition of the suit-property, between the parties on a proper move being made therein terms of impugned judgment dated 14.3.1995.
Substantial justice having been done between the parties, who have to follow the law applicable in relation to partitioning the disputed property in terms of the Land Revenue Act, 1967, were are not inclined to the view that any group for interference therein, in these proceedings, has been made out.
7. The petition is sans merit and is liable to be dismissed. Order accordingly.
6. In the backdrop of the above-quoted judgment of the Hon'ble Supreme Court of Pakistan, the question of title has already been established therein, inasmuch as, private partition has been taken place to the exclusion of Para 6 of the deed, which is pending decision. Likewise, the issue of jurisdiction of the revenue authorities in Malakand Agency has also been put to an end.
7. All the orders passed by the Revenue Authorities are in accordance with law and no illegality, irregularity or jurisdictional defect can be depicted to call for interference in exercise of constitutional jurisdiction of this Court. Moreover, jurisdiction conferred on High Court under Article 199 being extraordinary relief, has to be exercised in aid of justice and not to interfere with tribunal or statutory forum unless it is shown that the order, action or inaction ' is in violation of any provision of law or without lawful authority or jurisdiction.
8.The matter as it stands, this writ petition being without any substance stands dismissed.