' This is a revision petition against the order dated 5-3-1973 passed by the Deputy Commissioner/Settlement Officer, Khairpur whereby he rejected the review petition of Mr. Muhammad Parial and maintained his original order dated 19-12-1972 whereby he had dismissed the application of the petitioner.
2. The facts of the case briefly stated are that Muhammad Parial petitioner had made an application to the Advisor to Governor of Sind, for Law and Parliamentary Affairs stating therein that an area of 11-32 acres out of S. Nos. 140 and others of Deh Jamarah Taluka Gambat was purchased by him through a registered sale-deed from his mother Mst. Jijan and thus by virtue of this document, he became the co-sharer in the entire holding viz., 52-14 acres with the respondent Gaji and others. On 24-3-1965 the parties being ignorant of the legal position, appeared before the Taluka Mukhtiarkar Gambat and gave a statement before him for partition of their joint holding. As a result of this partition statement the petitioner got S. Nos. 142, 625, 1146, 1335, 1147, 1332 and 1336 as his share. The remaining S. Nos. Were given to the other co-sharers. The main contention of the petitioner before the Deputy Commissioner Khairpur was that he was given an area of 8-26 acres instead of 11-32 acres and also the partition so made was in violation of para 23 MLR-64 of 1949 as the holding of an individual co-sharer as a result of partition becomes less than the subsistence holding viz., 16 acres. The Deputy Commissioner, after hearing the parties rejected the application of the petitioner and directed him to seek his redress in the Civil Court as the Revenue Court has not to decide the matter of complicated nature. The petitioner filed a review petition before the Deputy Commissioner but it too was rejected by the Deputy Commissioner Khairpur who maintained his original order dated 19-121972 vide the impugned order ; hence this revision.
3. Mr. Zafar Hussain Mirza counsel for the petitioner urged the following points :-
(i) The petitioner had purchased undivided and joint share in S. No, 140 and others admeasuring 11- 32 situated in Deh Jamra, Taluka Gambat district Khairptir and rest of the shares were owned and possessed by the respondents as co-sharers on 24-3.1965. Parties through ignorance of the legal position moved the Mukhtiarkar Gambat for partition of their joint holding by way of giving a statement before him. While recording the statement the petitioner was given an area of 8-36 acres only instead of 11-32 acres which was the due share of the petitioner including S. Nos. 157, 1139 and 1333 but subsequently having managed with village staff, the said S. Nos. Were excluded from the share of the petitioner.
(ii) Having come to know about the illegal and fraudulent deprivation of his share, the petitioner made an application to the Minister for Law and Revenue Government of Sind on 1-4-1972 which was forwarded to the Deputy Commissioner/Settlement Officer, Khairpur who called the report of the Mukhtiarkar, Gambat and issued notice to the parties. The Deputy Commissioner/Settlement Officer Khairpur after hearing the parties directed the petitioner to seek his redress in the Civil Court treating it as a complicated matter vide his order dated 19-12-1972. Therefore, the petitioner filed a Review Petition before him which was also dismissed vide the impugned order. Besides, the partition/exchange cannot be effected by way of oral statement as the partition of the immovable property is compulsorily to be registered under section 17 of the Registration Act and the oral exchange is also not acceptable and has no value at all vide PLD 1969 Dacca 499, which reads as under : "(d) Transfer of Property Act (1V of 1882) S. 118-Exchange-Oral exchange of land-Exchange not effected by registered instrument-Does not create any interest or valid title (P-503)" E.
(iii) The entire partition proceedings were in violation of para. 23 of MLR-64 of 195) as the holding of the individual co-sharer is less than 16-00 acres.
4. Mr. Zaheer counsel for the respondents urged the following points :-
(i) This was not an exchange/partition but was division of share as family arrangement and payment of land revenue separately.
(ii) Subsequently after this partition, the petitioner has exchanged S. Nos. 142 and 1332 with one Amir Bux and Khan Muhammad for S. Nos. 134 of the same Deh and further that the petitioner had mortgaged the entire area with Agricultural Development Bank of Pakistan against the loan of Rs, 3,000 and that loan is still unpaid.
(iii) The above point i. e. The violation of para. 23 of the Repealed Regulation was not raised before the Deputy Commissioner but the partition was made with the agreement of the parties and the partition took place in 1972.
4. I have considered the arguments put forth by the counsel for the parties and have also examined and perused the relevant record. The point for consideration is whether the partition which took place on 24-3-1965 is valid and whether as a result of the above partition, the petitioner can be given an area of 8-36 acres instead of 11-32 acres which he had actually purchased through a registered sale-deed. Paragraph 23 of MLR-64 of 1959 clearly indicates that a joint holding with an area equal A to subsistence holding but smaller than an economic holding shall not bei' partitioned. In the present case, the total holding of all the co-sharers is 52-14 acres and as the result of partition individual co-sharer has been given land as under :- {{TABLE}} S. No, Name of co-sharer Area given as a result of partition A G I. Gaji and flazar Khan, Ali Madad 16-01 Khan Muhammad and Amir Bux 18-34 Kadir Bux and Abdullah g-23 Muhammad Parial (Petitioner) 8-36 52-14 {{TABLE}} ' Thus by this partition, the last two co-sharers own less than subsistence holding viz. 16-00 each, hence the joint holding cannot be partitioned as the partition is definitely in contravention of the provisions of paragraph 23 and shall be void hence, such joint holdings cannot be allowed to be partitioned; the management of the impartiable joint holding can however be taken over under paragraph 24 of the Regulation. The present partition being in contravention of the provisions of the repealed Regulation is absolutely not maintainable at all. The Deputy Commissioner Khairpur was, therefore, not correct in directing the parties to knock the door of the Civil Court in the matter.
On the contrary, he should have decided the matter himself as it was clear in contravention of the mandatory provisions of the law. Consequently there is some force in the arguments of the counsel for the petitioner.
6. In view of the above the revision petition is accepted and order of the Deputy Commissioner is set aside.