MUHAMMAD NAEEM ANWAR, J.This judgment shall also decide W.P No. 2977/2019 "titled Mst. Sherinia vs. Zareen Khan" and W.P 3014/2019 "Mst. Sherinia vs. Zareen Khan"" as almost common questions of law and facts are involved in all the three petitions.
2. Facts of the aforementioned petitions are that predecessor in interest of respondents No. 1 to 6, Mst. Amro Jan daughter of Sahib Khan, had instituted applications against Sher Afzal and others for partition of her share in the property, details whereof were given separately in the applications, situated in the Estate of Lakyani, Tehisl Katlang, District Mardan, wherein the respondents were placed ex parte and, accordingly , ex parte decrees were granted in her favour , however , the present petitioners had submitted applications for setting aside of the ex parte decree which, though, were turned down by the Additional Assistant Commissioner , Katlong, vide order dated 18.12.2013, however, in appeal, the same were allowed, vide order dated 17.5.2011, and, as such, the ex parte decrees were ordered to be set aside in all the applications and the applicants were given opportunity of being heard in their respective applications. After setting aside the ex parte decree, when the matter in respect of the partition of the agricultural property was opened, in the meantime, the present petitioners instituted a civil suit bearing No. 495/1 for declaration in respect of the property, situated in the estate of Jat Alo, Leek Pani, Lund khwar and Dheri, whereby the entries of the revenue papers incorporated on the basis of mutation No. 231 dated 29.12.1934 were challenged. After institution of the suit before the civil court, the present petitioners had submitted application before the Additional Assistant Commissioner, Katlong, for stay of the partition proceedings till decision of the civil suit. The application was allowed by the Additional Assistant Commissioner but the said order was set aside by the Additional Deputy Commissioner, Mardan, vide order dated 24.11.2016, which was upheld by the Member Board of Revenue vide order dated 28.11.2018, hence, the instant petitions.
3. Learned counsel for the petitioner vehemently argued that the original mutation bearing No. 231 attested on 29.12.1934, whereby the ownership of Mst. Shahzadgai was shown to have devolved upon, is wrong and the effect whereof had also been given in Jamabandi for the year, 1937-38 and in the subs equent record of rights, hence, until and unless their right in the said property is properly determined, the partition proceedings cannot be finalized.
It was contended by him that Mashal Khan, Samad Khan and Ajoon were brothers inter se. Mashal was succeeded by Shad Khan whose daughter was Mst. Shahazdgai whereas Samad Khan was survived by Zain whose son was Sher Afzal and Ajoon was succeeded by Meher Dil and thereafter his son Kachkool, the predecessor in interest of the present petitioners. It was also argued that the partition proceedings are in respect of some of the property which was mentioned in three different applications, however , the other joined property were not made subject matter of the partition and added that until and unless the entire lot of joined property are put in pool for partition, proper order in respect of the legal partition could not be made. With the aforementioned submissions, it was contended that the orders passed by the Additional Deputy Commissioner till the Board of Revenue are the result of misinterpretation of law which resulted into miscarriage of justice.
4. This court considered arguments of learned counsel for the petitioners and have gone through record of the case.
5. Admittedly, the partition in respect of the joined property are dealt with under the provisions of Section 135 of the West Pakistan Land Revenue Act, 1967, and there is no cavil with the proposition that the partition shall be in respect of the entire property and partial partition is not permissible under the law, however, the learned counsel by referring to mutation No. 231 has contended that it was in respect of four different khewats bearing No. 50,55,78 and 223, as such, the said khewats with respect to survey number shall be determined during the course of recording of evidence before the civil court where the subject matter of the said property is pending adjudication. When the said mutation was gone through, it transpires that proprietorship of Mst. Shahzadgai was devolved upon Zain Khan and Mauza Khan sons of Samad and Meher Dil son of Ajoon in equal shares.
Meher Dil was survived by kachkool, who was predecessor in interest of the present petitioners. The said mutation specifically bear the name of Meher Dil, as such, there remains no dispute in respect of the devolution of the inheritance of Mst. Shahzadgai in favour of her legal heirs including the ancestor of the petitioners. When learned counsel for the petitioners was confronted with the situation, he could not wriggle out of the same and admitted at the bar that the entries in the revenue papers of the extent of inheritance of Mst. Shahz adgai on the basis of above referred mutation are correct. In the present developed scenario, relief "A" of the declaration of the civil suit whereby the entries of revenue papers were challenged with the contention that through mutation No. 231 the proprietorship of the petitioners was not given and the entries of the said mutation were wrong as same were the result of collusion between the predecessor in interest of the respondents and the official of revenue hierarchy coupled with the admission of the learned counsel for the petitioners at the bar that through said mutation the predecessor in interest of the present petitioners was given his due share, remain nowhere in the field and similarly , the contention of learned counsel that the entries of revenue papers since 1934 uptill now are wrong as in the said khewat bearing No. 50, 55, 78 and 223 their predecessor was disinter ested and, as such, the partial partition of the landed property as per wishes and whims of respondent No. 1 to 6 holds no water and is misconceived.
6. It was also contended by learned coun sel for the petitioner that the entries in the revenue papers regarding the son of Samad to the extent of Zain Khan is also not correct for the reason that in the revenue paper Samad Khan was survived by Zain Khan and Mauza khan whereas in the mutation No. 231 the name of son of Samad Khan was mentioned as Zain khan which is also incorrect. The said contention of learned counsel for the petitioners has got no bearing or connection with the matter in hand for the reason that the entire claim of the petitioners is based upon their shares which was to be devolv ed upon on them from one Ajoon, there fore, Zain Khan or Zareen Khan (wherever it may be) has got no concern with the matter in hand as the said aspect of the case has never been questioned by the successor of Sher Afzal, the present respondents.
7. Learned counsel for the petitioners while substantiating his contention has referred to the entries of revenue papers for the year 2010-1 1 of Tehsil Katlang pertaining to khasra No. 1138 wherein they were not given their shares. It was argued that they were owners along with predecessor in interest of the respondents No. 1 to 6 while rest of the owners such as the successors of Samad Khan and Mashal were properly mentioned, however , the predecessor in interest of present petitioners were deprived of, therefore, the partition proceedings are partial to that effect. By considering the notion as placed before the Court by learned couns el for the petitioners, suffice it to say, that the said aspect requires deeper appreciation which could only be determined after recording pro and contra evidence however , the matter which is pending before the Revenue officer was in respect of the property regarding which the proper entries were maintained in favour of the entire lot of owners to which their respective shares were to be given through separation and carving out of tatimas as contende d by Mst. Amro Jan. Therefore, the lis which is pending before the civil court would not create any hurdle in finalization of the partition proceedings which are manifestly based on entries of the revenue papers wherein both the parties, i.e., petitioners and respondents were shown to be the owners.
8. In essence, the main focus of petitioners was in respect of the stay of partition proceedings regarding which they had submitted application before the revenue officer after institution of the civil suit on the ground that prima facie they were owners in the property which were mentioned in mutation No 231 and in kahsra No. 1138, therefore, the partition proceedings, without proper determination of their respective shares by the civil court, could not be finalized. To this effect when the entries of mutation No. 232 were gone through which transpires that the petitioners were properly given their respective shares which was admitted by learned counsel representing them before this Court. Similarly , while rest of the revenue papers gone through wherein as per petitioners' contention they have been deprived of and to this effect, at this juncture, the petitioner has got no prima facie case. The said contention of the petitioners requires recording of evidence. Wisdom is derived from the judgment in a case Chairman Municipal Committee vs. Muhammad Jan and four others (PLC 1987 page 2416) wherein its held that: "A case standing in need of evidence having to be led for being established, cannot be considered a proper subject for issuing temporary injunction."
Likewise, the balance of convenience also did not tilts in favour of the petitioners and secondly the irreparable loss also does not support their contention. It has been held time and again by the apex Court that for the purpose of grant of temporary injection co-existence of three ingredients i.e., prima facie case, balance of convenience and irreparable loss are sine qua non and if any of ingredients mentioned above is not in existence, injunction could not be granted. This Court in a case titled CNG Filling Station through Managing Director ( PLD 2014 Peshawar 218) has held that:- "It is settled principle of law that there are three essential ingredients for grant of temporary injunction which must co-exist in favour of the applicant i.e. prima facie case, balance of convenience and irreparable loss. The applicant is to prove the prima facie existence of the right claimed in the suit and also its infringement. Thereafter , the court would require to see as to whether the applicant will suffer more inconvenience by withholding of the injunction than that which the respondent would by the granting of it.
The court is required to weigh the mischief to either party i.e. to the applicant, if refused, and the respondent, if allowed, and will gran t the injunction only if the balance is in favour of the applicant.
Similarly , for getting injunction order , the applicant is bound to prove that in case of refusal of injunction he/she will suffer irreparable damage or injury ."
9. Adverting to the contention of petitioners regarding stay of partition proceedings till the decision of civil suit, even otherwise it is not permissible at this stage for the reason that the contention with respect to intricate question of law and fact of entries of revenue papers shall be determined when the detailed enquiry in the civil court would come to an end therefore, at this stage, the proceedings pending before the revenue Officer regarding partition of the landed property could not be stayed. Wisdom is derived from the case titled Shamsulhaq vs Aurangzeb and others (2003 CLC 87) wherein it has been held that :- "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 nor 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 recorded as co- sharer are bound to proceed with the application of partition of the joint land in accordance with the law ."
Wisdom has also been derived from the case titled Shahkarim Bakhash and others vs. Mst.Jehan Zeba and others (2016 MLD 1896)
10. Before parting with this judgment, it is necessary to mention that the matter before this court is under consideration in connection with the petition submitted under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, where otherwise disputed question of fact cannot be considered and only illegality or jurisdictional error was to be seen. The contention of the petitioners to the extent of pendency of civil suit shall be determined before the civil court where their suit is pending. The petitioners have not been able to any jurisdictional error or illegality in the impugned orders passed by Revenue hierarchy and as such all the three petitions being meritless are hereby dismissed in limine.