Dr. Khurshid Iqbal, J.
1. Petitioners--Dawood Khan and another seek the issuance of a writ against the Revenue Officer of Tehsil Kabal, for dismissal of partition application decided by the Assistant Commissioner Kabal, Swat, dated 29.05.2018 and the subsequent dismissal of appeal as well as revisions by the Additional Deputy Commissioner, Swat, Additional Commissioner, Malakand Division and the Senior Member Board of Revenue, Peshawar vide their orders dated 07.08.2018, 26.04.2019 and 19.02.2020, respectively. The sole and simple question for determination is that whether this Court, in exercise of its constitutional jurisdiction of judicial review, can issue a writ as the petitioners have prayed for.
Before I proceed to answer this question, I shall describe the facts of the controversy between the parties which are necessary for the purpose of the matter in hand.
2. Mst. Rafaat Begum, the respondent No. 1, moved an application to the Revenue Officer (AAC) on 01.01.2016, for partition of certain land as find mentioned in its heading. The petitioners claimed that the respondents No. 1 and 4 to 7 have already received their respective shares in the legacy of their predecessor, Bakht Biland Khan, in the shape of cash amount and that entries in their names have wrongly been made in the revenue record, which are liable to correction. They have also claimed that their predecessor had given to them his other property vide deed # 03 dated 28.06.1987.
Thereafter, the petitioners have also mutated that property to their legal heirs vide mutations bearing No. 533 and 534 attested on 29.05.2001. They have contended that there is a dispute of title between the parties, therefore, the revenue forum has got no jurisdiction to entertain the partition application. After hearing arguments of learned counsel for the parties, the revenue officer accepted the application of the respondent No. 1 vide order dated 29.05.2018. The Tehsildar of Tehsil Kabal was directed to carry out the partition proceedings and to submit his report. Being aggrieved of the aforesaid order, the petitioners preferred an appeal, revision and a second revision before the revenue hierarchy but the same have been dismissed vide orders dated 07.08.2018, 26.04.2019 and 19.02.2020, respectively. They, thus, sought a judicial review of all the above mentioned orders by this Court.
3. I have heard arguments of learned counsel for the petitioners and the learned Assistant Advocate General, for the official respondents and perused the record.
4. Admittedly, both the parties are recorded as co-owners of the land situated in Mouzas Shah Dherai and Totano Bandai, Tehsil Kabal, District Swat. Copies of the fard jamabandis are also available on pages 72 to 81 of this petition. The partition application is pending since the year 2016.
The petitioners contended that Bakht Biland Khan had given them his property vide deed dated 28.06.1987 and later on, they have also mutated it to their legal heirs. The Revenue Courts have held that both the parties are recorded as co-owners, having entries in the record of rights and that there is no legal impediment in partition of the land in question. Such entries command presumption of correctness according to section 52 of the West Pakistan Land Revenue Act (Act XVII of 1967(LRA)).
5. Judicial review of public actions/judicial/quasi-judicial bodies and authorities in the context of Article 199 1(i) & (ii) of our Constitution is limited to scrutiny on the touchstone of action/order being not permitted by law to do or to do anything required by law to do (mandamus in common law tradition) and declaring such act/proceedings without lawful authority (certiorari in common law tradition). As discussed above in exercise of these powers, this Court is to see whether the Revenue Authorities have done something they were not authorized by law or failed to do something they were required by law or they have done something without legal authority. There is no argument that Revenue Authorities lacked legal authority to assume jurisdiction in the matter. The only question for determination is whether under Section 141 of the LRA, the Revenue Officer was bound to direct the petitioners to have recourse to civil Court for determination of title or have himself proceeded to decide the title. The word "may" has been used in Section 141, LRA for exercise of powers by Revenue Officer. But exercise of discretion must be judicious. If it is not judicious, then it would be arbitrary. In case of arbitrariness, this Court can hold any order without lawful authority as discussed above. The question of title within the meaning of Section 141, LRA must be one which convinces the Revenue Officer that prima facie there is some valid claim of ownership of any party to proceedings otherwise it is not a question of title. Here, admittedly the petitioners claim title on the basis of a deed dated 28.06.1987, which they have yet to prove before the Civil Court. In other words, there title is yet to be matured. Even otherwise, partition is to be carried out per shares of the co-owners, which are subject to adjustment. Indeed, the Revenue Forum rightly exercised discretion in a judicious manner. No case of interference under writ jurisdiction is made out.
6. There is sufficient case law on the stay of proceedings of partition. Reference may be made here to Shamsulhaq v. Auranezeb and others (2003 CLC 87); Shah Karim Bakhsh and another v. Mst.
Jahan Zeb and four others (2016 MLD 1896) [Peshawar]; Mst. Sherinai (Widow) and 8 others vs. Zareen Khan and 18 others (2020 YLR 1643) [Peshawar]; and, 2021 MLD 154 [Peshawar]. The relevant para of 2003 case is reproduced 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 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."
7. Regarding the provision of Section 141 of the LRA, this Court in Gul Rehman v. Member Board of Revenue, Peshawar and 24 others (2021 MLD 154) [Peshawar], held as under: "The above mentioned provisions of law command that if the ownership of the party seeking partition is disputed and the Revenue Officer concerned could not decide the dispute, being intricate question of right, then Revenue Officer shall direct the parties to approach the competent Court for resolution of the dispute but mere institution of a suit by any of the parties on their own option could not restrict the Revenue Officer to proceed in the matter of partition of a jointly held land."
8. In light of the above discussion, the instant writ petition is devoid of any merit. It is, therefore, dismissed.