' This order will dispose of Civil Revision No, 11 of 1981 (Muhammad Yar Khan and another v. Amani Mulk and others) as well as Civil Revision No, 12 of 1981 (Muhammad Yar Khan and another v. Mst.
Part Afza and others) as the question of law and fact involved is common to both the cases.
2. Amani Mulk respondent instituted Suit No, 17/1 of 1980 for declaration that the partition proceedings, decided on 24-12-1978, regarding the suit land whereby 1/3 share was partitioned in favour of defendant-petitioners Nos. 1 and.2, were illegal, collusive and based on fraud.
Consequential relief in petitioners from taking possession of their share was also prayed for. Mst.
Pari Afza respondent in Civil Revision No, 12 of 1981 also instituted suit No, 18/1 of 1980 on the ground that she being real sister of defendants-petitioners Nos. 1 and 2, was entitled to 1/5 share out of 1/3 share belonging to their father in the inheritance of their grandfather. She also challenged the partition proceedings on similar grounds. The learned Senior Civil Judge vide his order dated 13-4- 1980 rejected the application of Amani Mulk, respondent in C. R. No, 11/81, asking for the interim relief.
By an order of the same date he also rejected the application of Mst. Pari Afza, 'respondent in C. R.
No, 12/81 whereby she also prayed for the grant of temporary injunction during the pendency of the suit. Amani Mulk and Mst. Pari Afza preferred two separate appeals in the Court of District Judge, Mansehra against the impugned order of Senior Civil Judge dated 13-4-1980. Both the appeals were accepted by the learned District Judge, Mansehra on 13-12-1980 and the temporary injunction prayed for was granted in their favour. Muhammad Yar Khan and Bakhtiar Khan defendants feeling aggrieved have filed two separate revision petitions against the orders of the District Judge, Mansehra.
3. It would not be out of place to give a brief history of the dispute between the parties. The land in dispute originally belonged to three brothers Amani Mulk, Ajun Khan and Bahadur. Bahadur died somewhere in 1954, leaving behind Muhammad Yar Khan and Bakhtiar Khan minor sons (petitioners). They claimed their share in inheritance of their father by starting proceedings in 1957 under the Frontier Crimes Regulation, but before the decision of the case the instructions were issued that civil cases were not longer to be tried under the Frontier Crimes Regulation, and as no other law was applicable to the area in question i,e, Added Areas of Hazara Division, therefore, the dispute between the parties remained pending till the merger of the Added Areas with Hazara Division. When in 1964-65 1st Settlement started Muhammad Yar Khan petitioner, who became major by that time, applied to the Settlement Officer for entering their 1/3 share in the Settlement Record which belonged to their father. The application was referred to Tehsildar Settlement for holding an inquiry, who after holding an elaborate inquiry. Recommended the claim of Muhammad Yar and his brother to the extent of 1/3 share in the suit property. This report was finally approved on 12-12-1966 by the Settlement Officer, and it was ordered that both the petitioners should be entered as owners of the aforesaid share in the revenue record. Similarly Amani Mulk and Ajun Khan each was entered as owner of 1/4 share in the suit property. Ajun Khan later on died and his only son Abdul Wadood has been made party to these proceedings. Against the aforesaid order of the Settlement Officer dated 12-12-1966, Amani Mulk alone went in appeal to the Additional Commissioner, Peshawar but the same was dismissed on 20-5-1967. He then filed a revision petition before the Board of Revenue on 11-7-1967, which also met the same fate vide order dated 26-10-1967. Thereafter, Amani Mulk respondent filed a writ petition in the Peshawar High Court but it was also dismissed on 16-4-1968. Then he filed a civil suit before the Deputy Commissioner under the provisions of Civil Procedure (Special Provision) Ordinance, 1968 but his suit was dismissed on 5-9-1968. An Appeal was taken by Amani Mulk to the Commissioner, Peshawar Division but it was also dismissed on 25-2-1971. He further took the matter before the Provincial Government by filing a revision petition before 0. S. D. (Joint Secretary) Government of N.-W. F. P. Home Department, Peshawar, but it was also dismissed on 27-7-1971.
4. In the meantime, somewhere in 1971, the petitioners applied, for partition of their 1/3 share in the suit property, to the Assistant Collector 1st Grade, Batagram and during the pendency of partition proceedings Amani Mulk respondent again brought a civil suit in the Court of Senior Civil Judge, Batagram on 16-12-1972, as Civil Procedure Code had been made applicable to the area by that time, In the suit bearing No, 142/I, he had not challenged all the previous orders passed against him, but had only challenged the entries in the Revenue record showing the petitioners as owners of 1/3 share in the suit property. Alongwith suit he also applied for staying the partition proceedings by way of interim relief but his prayer was rejected by the Senior Civil Judge on 23-2.1972. His appeal against the said order to the Court of District Judge also met the same fate. While purshing his remedy in the civil Court, Amani Mulk also contested the partition proceedings before the Revenue Officer. Ultimately the aforesaid civil suit was dismissed on merits by the Senior Civil Judge on 21-12-1978 by a detailed and well-reasoned judgment. The appeal of Amani Mulk against the said judgment was also dismissed by the District Judge, Mansehra on 2-9-1979.
5. In the partition proceedings, which continued unabated, the mode of partition was sanctioned on 16-12-1978 in the presence of the parties, but Amani Mulk respondent failed to challenge the said order by filing an appeal or revision with the result that the partition was finally sanctioned on 24- 12-1978 by the Assistant Collector 1st Grade. Against this final order also no appeal or revision was preferred by Amani Mulk respondent. Thus the partition mutations were entered on 4-2-1979 and attested on 14-2-1979. Even against the attestation of the mutations, no appeal was preferred by him.
6. The petitioners, then applied to the revenue authority under section 146 of the Punjab Land Revenue Act for possession of their 1/3 share in the suit property and on 20-3-1980 the Assistant Collector Ist Grade passed the order for the delivery of the possession to the petitioners. On 20-2- 1980 Amani Mulk respondent, once again instituted the present suit bearing No, 17/1 of 1980 before the Senior Civil Judge, Kohistan at Batagram challenging the partition proceedings on the grounds stated above. Similarly Mst. Pari Afza, respondent in C. R. No, 12 of 198U, also instituted suit No, 18/1 of 1980 seeking the aforesaid relief against the partition proceedings wherein she was not impleaded as a party.
7. The learned counsel for the petitioners urged that in this background of a prolonged litigation between the parties, there was no prima facie case in favour of the respondent nor was the balance of convenience in his favour and there was no- question of irreparable loss to the respondents because since 1954 the petitioners were being deprived of the income of their 1/3 share in the suit property by the respondent as he continued to remain in illegal possession of the same. The learned counsel also urged that under the provisions of section 56(b), Specific Relief Act, the civil Court cannot stay the proceedings pending before a Revenue Court or Revenue Officer, he also relied on section 172 (8) of the Punjab Land Revenue Act contending that once the partition proceedings have been finalized the civil Court would have no jurisdiction in the matter. The learned counsel also referred to Malak Sohara Khan v. Ahmad Khan, wherein it was held that :- "In accordance with the principle embodied in section 56(b) of the Specific Relief Act, the Chief Court is not competent to grant a temporary injunction to restrain partition proceedings in a Revenue Court, the latter Court not being subordinate to the Chief Court."
8. On the other hand the learned counsel for the respondents, argued that the plaintiff-respondent never disputed the entitlement of the petitioners to the 1/3 share of the suit property but the final order of the Revenue Officer dated 24-12-1978, sanctioning the partition proceedings, have been challenged as it was made in the absence of the respondent. He also argued that the partition proceedings were collusive and based on fraud, as Bakhtiar Khan petitioner, was employed as Civil 'Nazar' in the Court of Senior Civil Judge and he had, in collusion with the Revenue Officials, manipulated the partition of 1/3 share of the suit property in favour of the petitioners. He relied on Ahmed Din and others v. Faiz Ali and others,' in support of his contention that even the proceedings before a Court not subordinate to the civil Court can be stayed under the inherent powers of the Court. He also relied on Syed Shah v. Khuda Bakhsh, wherein it was held that :- "The plaintiff's substantial allegation and grievance is that the partition proceedings were null and void for want of notice to him at certain material times and on account of collusion, amounting to fraud, between the revenue officers concerned and the respondents."
' He urged that as a result of the partition proceedings, the respondent has been deprived of his valuable property in the form of buildings etc. But the learned counsel failed to point out that the order whereby the partition was finally sanctioned was not in accordance with the mode of partition sanctioned earlier by the Revenue Officer in the presence of the parties.
9. Thus in the circumstances, it cannot be said that the partition proceedings were carried out in his absence or without notice to the respondent as he had been participating in the partition proceedings from the very beginning. There is no assertion that the respondent having felt aggrieved of the mode of partition questioned the same by way of appeal, and the fact that ultimately the partition was sanctioned in accordance with the mode of partition would lead to the conclusion that no impropriety was attached to the partition proceedings which were conducted to the entire satisfaction of both the parties. From the certificate issued by the Senior Civil Judge, produced by the learned counsel for the petitioners, it is evident that Bakhtiar Khan petitioner was appointed as civil 'Nazar' in his Court on 6-12-1978 whereas the mode of partition before the Revenue Officer was sanctioned on 16-2-1978 and the partition was finally sanctioned on 24-12-1 2 3 1978. Thus the assertion, that the partition proceedings were influenced &y Bakhtiar Khan petitioner in collusion with the revenue officer is devoid of any force. The argument of the learned counsel that the respondents have been deprived of the built up property by the revenue officer also carries, no force as no such objection seems to have been taken before the Revenue Officers concerned during the course of the proceedings for partition.
10. For the above reasons and also in view of the fact that the petitioners are being deprived of the income of their lawful share in the suit property since 1954, the learned District Judge was not justified in granting injunction staying the delivery of possession to the petitioners. It is evident that the petitioners were able to secure their rights with regard to 1/3 share in the suit property after a protracted litigation and the respondent having failed, had again resorted to. Litigation with a view to thwart the petitioners from getting their share to which they have lawfully been held entitled.
Thus it is obvious that the discretion vested in the District Judge had not been judicially and properly exercised. In fact no, cogent reason has been given for granting the temporary injunction in favour of the respondent.
11. Regarding C. R. No, 12/81 (Muhammad Yar Khan v. Mst. Pari Afza) it is evident that the respondent claims to be a real sister of the petitioners and thus entitled to 1/5 share out of 1/3 share belonging to their father which had already been partitioned and given to the petitioners. The learned counsel for the petitioners urged that at the time of the death of their father `Riway was invogue and she has yet to establish her entitlement under the `Riwaf. Thus it is clear that the dispute raised by the respondent in this case strictly concerns her brothers i,e, the petitionars, and in case she succeeds in the civil suit, her 1/5 share could be separated out of the property already partitioned in favour of the petitioners. Therefore, it is obvious that in her suit also, the grant of injunction staying the delivery of possession to the petitioners would be of no use to her.
12. For the above reasons, both the revision petitions are accepted with costs and by setting aside the order of the District Judge dated 13-12-1980 that of the trial Court dated 13-4-1980 is restored.
However, the observations made in this order shall not prejudice the trial Court in deciding the cases on merits. (1894) 1 P R 57 (C J) PLD 1954 Lah. 414 PLD 1954 Lah, 606