' This is a Constitutional petition by Mohammad Nawaz seeking to challenge the order of the Member, Board of Revenue, dated 17- 4-1984, the order of Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi, dated 21-9-1982 and the order of Collector, dated 7-12-1981 in proceedings for partition of Shamilat Deh land measuring 11,875 Kanals 6 Marlas bearing Khewat No.43, situated in Dhoke Rehmat, Tehsil Pindi Gheb, District Attack.
2. The facts giving rise to this petition are that Muhammad Nawaz petitioner who claims to have 1/4th share in the entire Shamilat Deh land, filed an application for its partition in the year 1972. It was conceded by the learned counsel for the petitioner before me that there were more than 200 co-sharers of the Shamilat. The Assistant Collector II Grade before whom the partition proceedings were pending, sanctioned the mode of partition on 8-3-1972. The partition was finalised and sanctioned by A.C.-I on 18-3-1974 whereafter instrument of partition was sanctioned vide Mutation No.167/167, dated 31-5-1977. Sardar Khan etc. respondents Nos.1 to 14 feeling aggrieved with the said proceedings and the mutation, filed appeal before the Collector on 5-5-1981. This appeal was accepted vide order, dated 7-12-1981. It was held by the learned Collector that all the co-sharers of the Shamilat had not been served according to law during partition proceedings and that according to the Shart Wajibul Aarz, every part of Shamilat Deh including Charagah could not be partitioned. He, therefore, set aside the order of partition, dated 18-3-1974 and Mutation No.167 dated 31-5-1977. As a result of this, he remanded the case to the Assistant Collector for fresh hearing and decision on merits. While disposing of this appeal, he condoned the delay in filing of appeal by Sardar Khan etc. Muhammad Nawaz petitioner went up in appeal before the learned Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi. It was held by the learned Additional Commissioner (Revenue) that all the respondents were not properly served and that they were proceeded ex parte and therefore, condemned unheard. He, therefore, came to the conclusion that the Collector rightly accepted the appeal and remanded the case for fresh decision on merits. The appeal was consequently dismissed on 21-9-1982. Feeling aggrieved, Muhammad Nawaz petitioner went up in revision before the learned Member, (Revenue), Board of Revenue, Lahore. The said revision was dismissed on 17-4-1984 because firstly, according to Shart Wajibul Arz, the land set apart for common grazing ground was not partitionable and secondly, that reasonable efforts were not made to secure the service of the respondents and other land- owners who had share in the Shamilat Deh. Hence this petition.
3. It is contended by the learned counsel for the petitioner that the Revenue Authorities in the impugned orders misread Shart Wajibul Arz and misinterpreted the provisions of section 136 of the West Pakistan Land Revenue Act and that on account of the general proclamation in the village, it could not be said that all the co-sharers of Shamilat Deh had not knowledge of the partition proceedings. It was, therefore, argued that the impugned orders should be struck down as illegal and without lawful authority. Shart Wajibul Arz of village Dhoke Rehmat for the year 1976-77 has been placed on record of this petition as Annexure.
' Shart Wajibul Arz is a document which is in fact an agreement amongst all the co-sharers of the Shamilat land. In this view of the matter, Shamilat land can be partitioned subject to the conditions/ limitations of Shart Wajibul Arz. According to this document, every co-sharer was given right to seek partition of Shamilat Deh. However, graveyard, paths and Bun (water pond) were excluded from partition. Besides this, Banjar lands under watercourses were also excluded from partition. Land bearing Old Khasras Nos.3, 8, 9 and 291 were also excluded from partition. The land for grazing of cattle was also excluded from partition. The provisions of section 136 of the West Pakistan Land Revenue Act are reproduced below:-.
"136. Restrictions and limitations on partition.-- Notwithstanding the provisions of Section 135--
(a) places of worship and burial grounds held in common before partition shall continue to be so held after partition;
(b) partition of any of the following properties, namely:-
(i) any embankment, watercourse well or tank and any land on which the supply of water to any such work may depend;
(ii) any grazing ground; and
(iii) 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."
' A perusal of these provisions would indicate that it places restrictions and limitations on partition of any places of worship, burial ground, embankment, watercourse and grazing ground. It also provides that partition of any land can be refused which is occupied as the site of a town or village or of any property, the partition of which 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.
Even according to this section, the general agreement contained a Shart Wajibul Arz is not overruled. It cannot, therefore, be said that the provisions of section 136 will override the general agreement contained in the Shart Wajibul Arz. The two are complementary to each other. The provisions of section 136 of the West Pakistan Land Revenue Act are not exhaustive. Similar is the case of Shart Wajibul Arz. "The Land Revenue Act makes ample provision for the protection of the grazing ground and other common rights." Under section 136, partition of certain properties enumerated therein may be refused if in the opinion of the Revenue Officer it 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. Reliance for this is placed on Muhammad Abdul Rahim Khan v. Hussaina and others PLD 1949 Lahore 352. According to para. 18.7 of the Land Records Manual 1971 Edition, an entry for Shart Wajibul Arz prohibiting partition in Shamilat land does not necessarily operate as a bar to partition, it being the duty of Revenue Officer to himself decide whether such class of property should or should not be partitioned.
According to para. 18.6 of the said Manual, all parties interested should be summoned by the Revenue Officer making inquiry in the partition application to appear A before him. This para requires that special attention should be given to the requirement of the villagers including those of non-proprietors in the matter of common grazing land and Shart Wajibul Arz of a village should in every case be consulted.
4. I have gone through the impugned orders and I find that the Revenue Authorities have, in no way, acted against the provisions of section 136 (ibid). A perusal of the application for partition of Shamilat Deh, dated 8-3-1972 A nnexure 'D' would indicate that although according to the learned counsel for the petitioner there were more than 200 co-sharers of the Shamilat Deh, but only 81 persons were impleaded as party in the said application. All the co-sharers were neither impleaded as party in the petition nor consulted as to the method, effect and sanction of the partition proceedings. As such, even if there was a general proclamation of these proceedings in the village, the co-sharers who were not impleaded as party were not expected to attend hearing of the proceedings. A large number of share-holders having not been consulted, the Revenue Authorities were justified to remand the case for fresh decision according to law. Reliance is placed on Haji Aftab Hussain and others v. Additional Commissioner (Revenue) PLD 1982 Pesh.
37. The names of the Sardar Khan etc. respondents do not figure in the list of respondents in the partition application. As such, if there was any delay in filing of the appeal before the Collector, it was rightly condoned because the appeal was within time from the date of their knowledge.
5. In view of the above, I find no merit in this petition which is accordingly dismissed in limine.