MUHAMMAD IJAZ KHAN, J. Petitioners have filed the instant constitutional petition, under Article 199 of The Constitution of Islamic Republic of Pakistan 1973, with the following prayer; "It is therefore prayed that on acceptance of the writ petition the impugned order of dismissal of application of partition be set aside and proceedings on the partition application may be ordered to be started and decided the case legally."
2. Precisely the facts of the case are that the present petitioners namely Fazal Hadi and 05 others submitted an application in representative capacity for partition of the property as mentioned in the heading of the application measuring 39,226 kanals and 03 marlas situated in Moza Koga Tehsil Daggar District Buner. They have also prayed for the cancellation of 22 numbers of mutations being fake and fictitious upon the rights of the petitioners. It is stated in the partition application that they are filing the instant petition in representative capacity and both the parties are co- sharers/co-owners in the mentioned property and the same is a Shamilati land of which no official partition has yet been taken place. As required, under the law the petitioners have also filed an application under, Order I, Rule 8, C.P.C for seeking permission to file the said partition application in a representative capacity.
3. Respondents were summoned and they submitted their reply to the aforesaid application where their one stance amongst other was that the partition between the parties had already been made through various decisions of the civil Court dated 11.04. 995 and 17.07.2002 and as such the present application is hit by the principle of res-judicata. They have also stated in their reply that an official partition had since been taken place by the Ex-Wali Swat vide his two decisions dated 10.05.1952 and 27.02.1953. Thereafter, both the parties were asked to produce their evidence which they have accordingly led. The learned Tehsildar/ Assistant Collector was also pleased to appoint Girdawar Circle Daggar as local commissioner and who has submitted a detailed report which is available on the file and which has been made part of the record and the said Girdawar Circle also appeared in the witness-box, however, the learned Tehsildar/ Assistant Collector vide order dated 12.04.2005 dismissed the application of the present petitioners on the ground that earlier decisions dated 02.05.1995 and 17.07.2002 with respect to the same prayer were passed by the civil Court and that the Ex-Wali Swat too, had decided the issue in hand through his two decisions dated 10.05.1952 and 27.02.1953. The application was also found as non-maintainable for non-impleading of all the co-owners/co-sharers in the partition application. Feeling aggrieved of the aforesaid order and judgment, the present petitioners filed an appeal before the District Revenue Officer (D.R.O.) Buner, who was pleased to accept the appeal of the petitioners vide order dated 22.02.2006 with the following observations: "As per my above discussion I accept the appeal by setting aside the impugned order of the trial Court and remand case back to the trial Court with the direction to decide the same afresh accordingly likewise the partition petition of any agricultural land jointly owned by the owners, and to send a commission to the spot, so that no injustice could be done to anyone. Parties are left to bear their own cost. The trial Court file be sent to trial Court wile appeal file be consigned to General Record Room after completion."
The respondents/defendants aggrieved of the aforesaid order approached to the revenue appellate Court Swat through an appeal (which under the law could have been a revision) which was allowed and whereby the order of the D.O.R Buner dated 22.02.2006 was set aside whereas the order of Tahsildar/Assistant Collector dated 12.04.2005 was restored. The present petitioners challenged the aforesaid order before the M.B.R, however, their petition was also dismissed vide order dated 01.10.2007.
4. The aforesaid order was then challenged by the present petitioners before this Court through the instant Writ Petition No. 2048-P of 2007 which came up before this Court for regular hearing on 30.10.2015 and a Division Bench of this Court was pleased to dismiss the same vide order dated 30.10.2015. The petitioners thereafter challenged the aforesaid order before the apex Court through Civil Appeal No. 48 of 2016 and the apex Court was pleased to allow the same vide order dated 20.10.2020 and thereby remanded the case to this Court for rehearing and re-decision, the operative part of the said order being relevant is reproduced below:- "In view of what has been discussed above, while converting this petition into appeal and allowing the same, we could like to remand the case back to the High Court with direction to re- hear the matter in light of the above observations and to see as to whether any such rights of all the parties have been determined by the ex-Ruler of Swat which could debar the parties to ask for partition of their shares in the light of Section 11 of C.P.C. However, the parties would be at liberty to argue their case but within the framework of their pleadings."
After the remand of this case from the apex Court, the case was taken up for hearing today for rehearing and re-decision as per the remand order of the apex Court.
5. Today arguments of both the learned counsel for the parties were heard in considerable detail and the record perused with their able assistance. It was argued by the learned counsel for the petitioners that the learned revisional Court as well as the learned M.B.R have not applied the correct law on the subject whereas the learned D.O.R/Collector has rightly held the application of the petitioners as maintainable. He further argued that both the grounds which were prevailed with the two fora below qua the non-maintainability of the partition application are misconceived on the point of the legal worth of the decisions as given by the Ex-Wali of Swat and as referred in the judgment of the apex Court, the learned counsel for the petitioners submits that since the said orders have not been incorporated in the revenue record, therefore, in partition proceedings none of the parties can take benefit of the same. As against this learned counsel for respondents/defendants argued that the partition application was not maintainable as the property under partition is Daka Chiragah and as such as per the bar contained in section 136 of The Land Revenue Act, 1067 the same could not be partitioned. He also argued that since the petitioners/applicants have not impleaded all the co-owners in the partition application, therefore, on this score too, the application is not maintainable. He also defended the decisions of the Ex- Ruler of Swat by submitting that the same are very much implementable and full legal effect has to be given to the same to govern and regulate the rights of the parties.
6. As far as the directions of the apex Court to this Court in the remand order to the effect to determine that as to whether the decisions of Ex-Ruler of Swat could debar the parties to ask the partition of their shares in the light of section 11, C.P.C., is concerned, suffice it to state, that the said decisions are uncertain and ambiguous on many scores and as both the learned counsels who know, read and speak Pashtu have gone through the aforesaid two decisions and both of them were confronted that as to whether these decisions pertains to the property under partition and as to whether these decisions were incorporated in the revenue record in the first ever settlement process which was carried out in the area in the year 1977-78 and as to whether any of the party has ever sought its protection or benefit in the past, the answer to all the aforesaid questions was replied in a big "No", therefore, when such decisions of the Ex-Ruler of Swat dated 10.05.1952 and 27.02.1953 have not been incorporated in the revenue record and when it could not be said with certainty that the property mentioned therein is with respect to the subject property then in the given admitted facts and circumstances the revenue authority could not be debarred from partition of the subject property. It is relevant to mention here that revenue authority could legally and lawfully make partition on the basis of entries made in the revenue record and as such any deed, decision or decree even if passed but not incorporated in the revenue record then the revenue authorities are not bound to wait for the same and they shall proceed with the partition, therefore, in such state of affairs, the decisions of Ex-Ruler of Swat could not debar the revenue authorities from carrying out the partition proceedings.
7. As far as the second ground which prevailed with the learned fora below that the subject property is a Daka Chiragah , therefore, the same could not be put to partition in view of the bar contained in section 136 of Land Revenue Act. The said section being relevant for the present controversy is reproduced herein below:
136. Restrictions and limitations on partition.-- Notwithstanding the provisions of [106] [sections 135 and 135-A]--
(a) places of worship and burial grounds held in common before partition shall continue to be so held after partition; and
(b) partition of any of the following properties, namely:-
(i) any embankment, water-course, well or tank and any land on which the supply of water to any such work may depend;
(ii) any grazing ground; and
(ill) any land which is occupied as the site of a town or village, may be refused if, in the opinion of the Revenue Officer, the partition of such property is likely to cause inconvenience to the co- sharers or other persons directly or indirectly interested therein, or to diminish the utility thereof to those persons.
The mere perusal of the aforesaid provision unmistakably declares that as per section 136 (a) partition of places of worship and burial grounds have been held to be continued so even after partition which means that these properties shall not be put to partition whereas the property mentioned in section 136 (b)(i)(ii) & (iii) the partition of the aforesaid property has been left to the wisdom of revenue authority subject to two conditions firstly if in the opinion of the revenue officer the partition of the aforesaid three kinds of land is likely to cause inconvenience to the co-sharers or other persons who are directly or indirectly interested therein and secondly if such partition render the property as useless then in any of such eventuality the revenue officer may refuse partition of these three kinds of land and conversely if there is no likelihood of any inconvenience of the co-sharers or any other persons or if there is no possibility that due to partition of such property the same would loose its utility then the revenue officer is bound to go for partition of these kinds of land. Since the ground which was prevailed with the fora below and as well as agitated by the respondents/defendants that the property under partition is a grazing ground (Dhaka Chiragah) therefore, the same could not be partitioned. Such objection on the plain and simple interpretation of the aforesaid provision of law is misconceived. Partition of a grazing ground has not been made absolutely barred rather the same has been tagged with the inconvenience of co-sharers or any person who has interest in the property and as in the present case such stage has not yet been reached, therefore, at this early stage of proceedings the two Courts below have erred by holding the present application of partition as non-maintainable.
8. The factum that the whole subject property is not a grazing ground is spelling-out from the evidence as well as report of the Girdawar Circle available on file as the petitioners/applicants have brought on record substantial evidence to establish that the property under partition is an agricultural property as the respondents/ defendants have produced DW-2 namely Lambar, DW-3 namely Yaqoob Gul and DW-4 namely Umar GuI respectively who are cultivating the said land.
Similarly, the report of the Girdawar Circle Daggar is available on file, the same too does not show that the whole subject property is a Daka Chiragah. It may also be clarified that since in the instant application the petitioners/ applicants have sought partition of a huge property measuring 39,226 kanal and 03 marlas, therefore, there may he graveyard, places of worship or houses, however, as per the mandate of law the revenue officer could exclude such portion of the property from partition and that is why the learned D.O.R in his order dated 22.02.2006 has rightly observed that apart from the already commission report a fresh commission be sent to the spot so that no injustice could be done to any of the party, therefore, the present case is an open and shut case for all the interested persons as well as for the revenue hierarchy to proceed with the same as per the mandate of Land Revenue Act, 1967, therefore, in view of the above discussion, the ground for knocking out the present petitioners to the effect that the subject property being a Daka Chiragah and could not be put to partition, is misconceived and premature for the time being. It is settled since long that when language of the statute is clear then its plain and ordinary meaning is to be given. Similarly, it is also an established principle of interpretation of statute that it must be interpreted in such a manner so as to advance the cause of justice instead of defeating the same.
In the case of "Government of Khyber Pakhtunkhwa through Chief Secretary Peshawar and others v. Intizar Ali and others" reported as 2022 SCMR 472 it was held by the apex Court that in a number of judgments, the superior courts of the country have held that when meaning of a statute is clear and plain language of statute requires no other interpretation then intention of Legislature conveyed through such language has to be given full affect. Plain words must be expounded in their natural and ordinary sense. Intention of the Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and not to that what has not been said. Similarly, in the case of "Government of Khyber Pakhtunkhwa and others v. Abdul Manan reported as 2021 SCMR 1871 the apex Court has reiterated the aforesaid rational by observing that when the intent of the legislature is manifestly clear from the wording of the statute, the rules of interpretation required that such law be interpreted as it is by assigning the ordinary English language and usage to the words used, unless it causes grave injustice which may be irremediable or leads to absurd situations, which could not have been intended by the legislature. Likewise, in the case of "J.S. Bank Limited v. Province of Punjab through Secretary, Food Lahore and others" reported as 2021 SCMR 1617, the apex Court has declared that for the interpretation of statutes purposive rather than a literal approach is to be adopted and any interpretation which advances the purpose of the Act is to be preferred rather than an interpretation, which defeats its objects.
9. As far as the third objection and the ground which was prevailed with the fora below that the subject property being Shamilat and that the petitioners/ applicants have not impleaded all the co-owners/co-sharers in the application is concerned, suffice it to say, that the petitioners/applicants have filed the instant petition in a representative capacity and for which a proper permission has been sought by filing application under Order I, Rule 8, C.P.C, however, as per the provisions of Land Revenue Act, 1967 the revenue officer is bound that on filing of the partition application they have to give notices to all the recorded owners or to cause publication in the newspaper and in this regard section 137 of the Land Revenue Act being relevant which is reproduced below:-
137. Notice of application for partition.-- The Revenue Officer, on receiving the application under section 135 shall, if it is in order, and not open to objection on the face of it, fix a day for the hearing thereof, and--
(a) cause notice of the application and of the day so fixed to be served on such of the recorded co-sharers as have not joined in the application; and
(b) If he thinks fit, cause the notice to be served on or proclaimed for the information of any other persons whom he may deem to be directly or indirectly interested in the application.
The above said provision of law unmistakably oblige the revenue officer that he on receiving of an application for partition, shall issue notice of the application and shall serve all the recorded co- sharers who have not been joined as party in the application and along with such notice if he deems appropriate can issue a proclamation order, therefore, in view of the above, even if the petitioners/applicants have not impleaded any co-sharer/co-owner, it is was the statutory duty of the revenue officer to issue notice to all the persons who are recorded as co-sharers in the property under partition and who have not been made as party. It is reiterated at the cost of repetition that the revenue officer is bound to go by his record and he being the custodian of the record shall issue notices to all the recorded owners or to issue a proclamation notice, therefore, such ground too, as was prevailed with the learned fora below is misconceived.
10. It is also relevant to mention here that by now it is settles that an application or suit could not be dismissed for non-impleading of a party as a wide and sweeping discretion has been conferred upon the Courts by the law that he may add or strike down any party which he deems it appropriate and necessary and additionally if such proceedings are being carried out under the Land Revenue Act, then as stated hereinabove that under section 137 of Land Revenue Act, the revenue authority is bound to give notice to all those co-owners whose names are recorded in the revenue record as co-sharers but they have not been made party to the application, therefore, in view of the above, it is more a statutory duty of the revenue authority than of the party(s).
11. Since the petitioners have filed the instant writ petition for issuance of writ of certiorari to declare the impugned orders of respondent No. 81 Tehsildar/Assistant Collector Buner dated 12.04.2005, respondent No. 83 Revenue appellate Court Malakand at Saidu Sharif dated 04.05.2006 and that of respondent No. 84 Member Board of Revenue dated 01.10.2007 as illegal, therefore, the learned counsel for the respondents/defendants was confronted that whether in the given facts and circumstances the respondents Nos. 81, 83 and 84 have properly exercised their jurisdiction vested in them as all the grounds prevailed with them are in clear violation of the various provisions of the Land Revenue Act, however, he was unable to wriggle out of the same. It may be clarified that a writ of certiorari could be issued by this Court if the orders and judgments impugned before this Court are the result of improper or illegal exercise of jurisdiction or lack of jurisdiction and in the instant case we have found that the three fora below have not properly exercised their jurisdiction, therefore, it is a fit case for issuance of the desired writ. In the case of Amjad Khan v. Muhammad Irshad (deceased) through LRs reported as 2020 SCMR 2155, the Hon'ble apex Court has held that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter. Similarly, in the case of "Chief Executive MEPCO and others v. Muhammad Fazil and others" reported as 2019 SCMR 919, the Hon'ble apex Court has declared that where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed-out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution. In the case of "Chairman NAB v. Muhammad Usman others" reported as PLD 2018 Supreme Court 28, the Hon'ble apex Court has held that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge's hands, however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner.
12. In view of the above, this writ petition is allowed and the impugned orders of respondent No. 81 Tehsildar/assistant Collector Buner dated 12.04.2005, respondent No. 83 Revenue Appellate Court Malakand at Saidu Sharif, dated 04.05.2006 and that of respondent No. 84 Member Board of Revenue dated 01.10.2007 are set aside whereas order of respondent No. 82 District Revenue Officer - Buner at Daggar dated 22.02.2006 is restored., maintained and upheld and accordingly the Tehsildar/Assistant Collector Buner is directed to proceed with the partition application as per law and to conclude the proceedings within a period of six months positively from the date of receipt of the order of this Court.##TES##