MUHAMMAD NAEEM ANW AR, J.---This single order in the instant writ petition shall also decide Writ Petition No.1906-P/2015 as not only the parties in both the petitions are the same but both the petitions are against the same order and common question of law and fact is involved.
2. Facts in brief are that the petitioners of the instant petition had filed an application on 14.12.1999 for partition their property of the estate of Fazal Abad, which was allowed on 23.10.2003. An application for setting aside of ex- parte order was submitted by responden ts Nos.1 to 9, which was dismissed by the learned Revenue Officer on 04.06.2004, against which, respondents have filed an appeal before the learned District Collector , Mardan, however , their appeal was dismissed on 13.12.2004. The same order was challenged before learned Revenue Appellate Court, Mardan through revision petition where their revision petition was also dismissed on 02.08.2005.
Second revision petition was filed before the Board of Revenue which was accepted and the matter was remanded back to the learned trial Court for decisio n afresh on 12.06.2008. As in respect of the joint property of the revenue estate of Akbar Abad another partition application was also pending amongst the owners, thus, the respondents have submitted an application for consolidation of partition proceedings of the property situated at Akbar Abad and Fazal Abad, however , the application was turned by the Revenue Officer on 15.02.2012, which order of Revenue Officer was assailed in the Court of District Officer Revenue, Mardan and their appeal was dismissed on 13.06.2012, against which, revision petition was filed before learned Additional Commissioner , Mardan where the revision filed by respondents Nos. 1 to 9 was allowed on 09.10.2012. The petitione rs have assailed the order of the learned Additional Commissioner , Marda n before the Board of Revenue through case No.209/2012 which was allowed on 18.03.2014 with the directions that the revenue officer shall continue with the partition proceedings of the applications regarding two revenue estates Fazal Abad and Akbar Abad and at the end the decrees of partition applications be executed simultaneously , however , the request of respondents Nos.1 to 9 for consolidation of partition proceedings was held to be subject to the consent of all the parties. Respondents have filed a Review Petition bearing No.367/MBR-II before the learned SMBR but the same was dismissed on 29.01.2015. The petitioners have assailed the order of Board of Revenue dated 29.01.2015 before this Court through the instant petition.
3. The petitioners of W.P. No.1906- P/2015 have assailed the order of Member Board of Revenue dated 29.01.2015, whereby their application for review against the order dated 18.03.2014 was dismissed.
4. Arguments of the learned counsel for the petitioners, Mr. Muhammad. Amin Khattak Lachi, Advocate were heard on 14.10.2020 when the learned counse l for respondents Nos.1 to 9 requested for adjournment as he could not prepare the case for arguments on the date fixed. On behalf of respondents Nos.1 to 9, written arguments were submitted on 21.10.2020 and requested for adjournment that their counsel would also assist the Court on the date fixed. On 06.11.2020, an application was submitted by respondent No.11 of the instant petition and petitioner No. 11 of the connected petition with the request that his name be deleted from the array of respondents with the submission that his partition application, pending adjudication before the revenue officer has been stayed due to pendency of these petitions. However , learned counsel for the respondents Nos.1 to 9 and 11 were not present due to strike being announced by Khyber Pakhtunkhwa Bar Council, and the matter was adjourned for today . When the case was called for hearing special attorney for petitioners namely Raza Muhammad, Special Attorney for respondents Nos.1 to 9 and respondent No.11 along with his son appeared. Representative for respondents Nos.1 to 9 stated that not only they have submitted the arguments but their learned counsel is also available to assist the Court. Arguments of the learned counsel for the respondents Nos.1 to 9 and respondent No.11 were heard and record perused.
5. The petitioners of the instant petition feel themselves aggrieved from the order dated 29.01.2015 of the learned Senior Member Board of Revenue/ Member-II of the Board of Revenue, by which, the application of respondents Nos.1 to 9 was turned down. The grievance of petitioners and cause of action for filing the instant petition can easily be gathered from para No. 12 of the petition which reads as: "That petitioners being aggrieved partially from the order of SMBR dated 29.01.2015, filed this writ petition on the following amongst other grounds"
6. Record also reveals that petitioners had assailed the order of the learned Additional Commissioner , Mardan dated 09.10.2012, through their Revision Petition No.209/2012 and their revision petition was accepted on 18.03.2014 however , with the following observations:- "Keeping in view the legal position, the revenue record and circumstances surrounding the case, the order of Additional Commissioner Mardan dated 09.10.2012 is set aside. The DDOR/AAC is allowed to continue with the partition proceedings. If any joint holdings/khatajat are brought before the Court by any of the joint owners its partition shall be undertaken as per law and procedure. In case there is any other partition application pending before the Court of DDOR/AAC it shall be disposed of expeditiously . There is no need of consolidating the share of each owner indifferent Mozajat, i.e. Akbar Abad and Fazal Abad unless all the partie s by their written consent agree thereto. However , there is no harm in consolidating the shares of each party situated in the same Khata or adjacent Khatas in the same Mozah. Efforts shall be made to execute the partition decrees simultaneously in order to avoid bloodshed between the parties who admi ttedly belong to the same community and are close relatives. No order as to cost".
7. The grievance of the petitioners might be from deciding the execution petition simultaneously , pertaining to two different revenue estates namely Fazal Abad and Akbar Abad, however , it is astonishing that the order dated 18.03.2014 was not assailed specifically by the petitioners as the instant petition was filed on 28.12.2015 by mentioning and pointing out their grievance from order dated 29.01.2015 but amazingly the order challenged by the petitioners relates to the dismissal of review application filed by respondents Nos.1 to 9. The operative part of order impugned by the petitioners reads as:- "After careful perusal of record of case and hearing both the counsel, this Court found no illegality , irregularity or miscarriage of justice in the order , of my predecessor -dated 18.03.2014. In the circumstances, I have no option but to dismiss the review petition in hand. Keeping in view the above factual position, review petition in hand is dismissed and the order , of my predecessor dated 18.03.2014 is upheld".
8. It would be significant to mention that the order by which review application of respondents Nos.1 to 9 was dismissed has provided no cause of action to the petitioners, as they contested the review application and their prayer was acceded to. Moreover , it is also pertinent to mention that order dated 29.01.2015 was also assailed by respondents Nos.1 to 9 through connected Writ Petition No.1906-P/ 2015, by which, they have contended that the partition proceedings of both the revenu e estates may be consolidated. Before discussing the legal and factual aspect of connected petition I would conclude that the instant petition bearing No.45-P/2016 being filed against the order dated 29.01.2015, is misconceived and without substance, however , when the special attorney for the petitioners was confronted with this legal aspect, he conceded at the bar that he had got no objection if the partition application of both the estates are consolidated and decided simultaneously .
9. Section 135 of the Land Revenue Act, 1967 deals with the partition of joint holding without any specification of any particular estate, which reads as:- "135. Application for partition. Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if:- 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 which is till 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".
10. It would not be uncommon that when the owners of the joint holding of different revenue estates intend to separate their respective shares and when in respect of all the estates the applications are pending adjudication then' it would be far better in the interest of justice and for the parties too that all such applications be decided simultaneously and consolidation of all those applications would be more appropriate so that any dispute with respect to shares, possession, carving out of tatimma and potentiality of the property , keeping in view para 18.6 of Land Record Manual, be decided once for all. There would be no harm in consolidation of applications of different estates of the same sub-Division, espec ially when no one is disputing the same. The philosophy and logic for consolidation of partition application would be the settlement of all kinds of disputes pertaining not only to khewat (URDU TEXT) but also to the survey numbers either of the same or of dif ferent holdings (URDU TEXT).
11. Learned counsel for the petitioners has made reliance on 2013 CLC 148 and 2015 CLC 546. Insofar as the former is concerned, it was in respect of the title dispute, arising out of the decision of the civil Court, has got no relevancy with the matter in hand, however , the case reported in 2015 CLC 546 titled "Ibrar Ahmad v. Raheem Dad and 8 others" it was a decision made by a Board of Revenue of Punjab, wherein the dispute was in respect of a single joint holding with the exclusion of other in the same revenue estate. In the matter in hand, the dispute is altogether different as while applying for partition of agriculture property under section 135 of Land Revenue Act, the entire joint holding of the particular estate, amongst the owners must be includ ed in the application otherwise it would be hit by the principle of partial partition. Insofar as, a group of persons having their joint properties in more than one revenue estate any one of them may apply for partition of his/their joint property of any revenue estate by not seeking the partition in the other , in such an eventuality the principle of partial partition would not be applicable, but when the partition applications of different revenue estates, amongst the same set of owners ( URDU TEXT) then the partition of their property should not only be finalized simultaneously but should also be proceeded in a consolidated proceedings for removal of ambiguities, settlement of disputes, in their common interest leading to a logical conclusion. There is no bar or clog in consolidation of partition applications of more than one estate. This view would be fortified with the principle laid down in the case law reported as PLD 1966 SC 708, PLD 1969 SC 65 wherein it was held:-- "Courts are not bound to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided by the Court, but on the converse principle that every procedure is to understood as permissible till it is shown to be prohibited by law".
12. As a matter of general principle that prohibition cannot be presumed and no procedural impediment should be considered insurmountable unless it is laid down as an impediment.
13. When the special attorney for petitioners was confronted with the consolidation of partition applications of the different estates, who being well versed with the legal phenomena of consolidation of joint holding, basic terminologies of revenue papers seems to have spent much time with revenue officials, has consented to the consolidation of partition application when so, it seems that the parties are not at issue rather they also intend to the logical conclusion of their respective partition applications. This being the situation, this and the connected writ petition are disposed of in terms of consolidated partition proceedings of both revenue estates Fazal Abad and Akbar Abad of District, Mardan, synchronously .
14. For the reasons stated above, both these petitions are disposed of accordingly .