' FAZAL ILAHT KHAN, J.--Faqir Muhammad Khan son of Risaldar Firdos Khan, resident of Mohallah Degan Khcl, Mardan Tehsil and District Mardan has assailed in this writ petition, the order of respondent No,2 affirmed by respondent No,1, dated 21-7-1987 and 11-8-1988 respectively, whereby the order of Settlement Officer, dated 20-9-1986 in exercise of its power as Collector passed in review rejecting partition Mutations Nos.932 and 933 were set aside and those of the Revenue Officer sanctioning the mutations in pursuance of official partition were restored.
2. It is undisputed that Faqir Muhammad Khan co-owner of the land applied for its partition to the Revenue E.A.C. Mardan under section 135 of the West Pakistan Land Revenue Act, 1967 (hereinafter to be referred as the Act). Respondents in their written statement resisted the application for partition on several grounds but their those objections were overruled and mode of partition was sanctioned on 7-10-1984 under section 142 of the Act. The parties did not challenge this order in appeal and it attained finality. After expiry of the period of appeal partition papers were prepared and the parties were pointed out their respective land on the spot before approval of the partition.
The applicant raised an objection that he has not been provided with an approach to his land through the land allotted to the respondent. However, his objection was found baseless as the petitioner had been allotted land adjacent to his other land in accordance with the mode of partition and that previously there was no `Bandubasti' thoroughfare in existence so as to exclude it from the property to be partitioned and kept joint. Accordingly the partition was completed and the petitioner was directed to file non-judicial stamp of Rs,10 for the instrument of partition as required under section 145 of the Act. The petitioner was given three adjournments at his request but on his failure the learned Revenue Officer did not proceed further in the matter and ordered that the file be consigned to the record room vide his order, dated 6-6-1985.
3. Subsequently on completion of partition and in pursuance thereof Mutations Nos. 932 and 933 were attested by the Revenue Officer on 5-2-1986. Somehow or the other the Revenue Officer felt that the aforementioned mutations have been wrongly attested and asked for sanction of the Collector to review those mutations. After obtaining the required sanction, the mutations were reviewed and in consequence rejected on 28-9-1986.
4. Respondent No,4, herein, challenged the aforementioned orders in two separate revision petitions which were accepted by the Additional Commissioner by a common order, dated 21-7- 1987. The orders of the Revenue Officer rejecting the mutations on review after obtaining sanction of the Collector, were set aside and the orders of attestation of mutations were restored. Further revision petition filed by petitioner herein, was dismissed by respondent No,1 on 11-8-1988. The orders of respondents 1 and 2 are challenged before us in the present writ petition.
5. It was contended by the learned counsel for the petitioner that on the completion of partition proceedings when petitioner categorically stated that unless he is provided with an approach to his land he would not accept the partition, his statement amounted to his withdrawal from partition proceedings within the meaning of section 142 of the Act. It was further contended that even if his objection did not prevail in the circumstances of the case i.e, in absence of an instrument of partition the Revenue Officer had no jurisdiction under the law to bring about changes in the Revenue record through the impugned mutations referred to above. It was lastly contended that the order passed on review was appealable, against which no appeal was filed and the revision petition filed before respondent No,2 was barred by time. It was, therefore, prayed that the orders of respondent No,2 be declared illegal, without lawful authority and of no legal effect and in consequence the orders of Revenue Officer rejecting the mutations be restored.
6. After hearing the learned counsel for the parties and perusal of the record we find no force in the contentions raised by the learned counsel for the petitioner. It is not denied that it was the petitioner who applied for partition of his land and during the partition proceedings mode of partition was sanctioned on 7-10-1984, in presence of the parties which was not challenged by any of the parties in appeal or revision. Later Naqshas 'bay' and leem' were prepared as required under paragraph 18.12 of the Land Record Manual. Parties were shown their respective lands proposed to be allotted to them. When the matter came up before the Revenue Officer for final approval of the partition the petitioner did raise an objection that he has not been provided an approach to his land but his objection was found baseless as there did not exist a `Bandubasti Rasta' which could have been excluded from partition or allotted to him. It was observed that the petitioner was allotted land contiguous to his other landed property in accordance with the mode of partition.
Accordingly the partition proceedings were completed and approved on 2-4-1985 by the Assistant Collector Its Grade. On completion of partition petitioner was asked to file non-judicial stamp for preparation of instrument of partition. On the request of the petitioner several adjournments were given to him to file non-judicial stamp but he failed, therefore, the file was consigned to the Record, Room. The contention of the learned counsel that raising an objection to the partition proceedings subsequent to the sanction of mode of partition, in substance, amounted to his withdrawal from the partition is mis-conceived. Subsection (3) of section 142 of the Act provides that if an applicant for partition is dissatisfied with an original or appellate order under this section and applies for permission to withdraw from the proceedings and so far as they relate to the partition of his share, he shall be permitted to withdraw therefrom on such terms which the Revenue Officer thinks fit.
Subsection (4) further provides that on such withdrawal the Revenue Officer may, where the other applicants, if any, desire the continuance of the proceedings, continue them in so far as they relate to the partition of the shares of those other applicants. It is clear from the plain reading of section 142 that it deals with the mode of partition and has nothing to do with proceedings subsequent to the sanctioning of mode of partition. As already observed the mode of partition sanctioned was not challenged by either of the parties though appealable and it attained finality. It, therefore, cannot be said that the petitioner's objection amounted to withdrawal from partition. It is not disputed that after sanctioning of mode of partition the relevant papers were prepared and the parties were shown on the spot the land in accordance with the `Khatonis' prepared. The petitioner's claim for approach to his land through the land of the respondent was not accepted for cogent reasons and the partition was completed. It was for non-filing of non-judicial stamp, after several adjournments given to the petitioner, that the partition file was consigned to Record Room.
Non-filing of stamp and instrument of partition would not mean that the partition proceedings were not completed. Section 145 of the Act relevant in the context reads as follows:-- "Instrument of partition.--When a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein."
Undoubtedly the above provision means that preparation of instrument of partition is a step subsequent to the completion of partition and is merely a formality for ascertaining the date on which partition is to take effect from taking possession of the land allotted to the parties in partition. We, therefore, hold that the partition proceedings were completed and by non-filing of non-judicial stamp and non-preparation of the instrument of partition the petitioner did not intend to withdraw from the partition and even if such intention was expressed the same would have no effect on the partition already completed.
Regarding respondent No,2's interference with the order of Revenue Officer passed in review of partition mutation we find no illegality as it was passed in exercise of revisional jurisdiction by the Additional Commissioner under section 164 of the Act. Having held that the partition was completed we would have to consider the effect of non-filing of non-judicial stamp on the attestation of mutation of partition and the subsequent proceedings as was argued by the learned counsel. Instrument of partition is prepared on the completion of partition in order to specify the date on which the partition is to take effect and from such date the person claiming under the instrument, is to take possession of the land allotted to him within three years, under section 146 of the Act. It is provided under para. 18.19 of the Land Records Manual that as soon as may be after the date mentioned in the instrument of partition, as a date from which it will take effect, the Patwari shall enter mutation in his register in pursuance of the partition and before sanctioning such mutation the attesting officer must satisfy himself that possession has been obtained. It, therefore, need not be emphasized that preparation of instrument of partition is a condition precedent for taking possession of the land and for bringing changes in the Revenue record in accordance with the partition. In the instant case, no doubt, partition has been completed but in the absence of instrument of partition neither possession could be delivered nor mutation could be attested.
7. The question as to what would happen if the applicant after completion of the partition proceedings fails to file non-judicial stamp needs serious consideration. Instrument of partition is not defined in the Act, however, instrument of partition is defined under section 2(15) of the Stamp Act, 1899 as under:-- "Instrument of partition.--Instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severity, and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award of an arbitrator directing partition."
A final decree in partition case can be executed by any party to whom property is allotted in severity and for that purpose the Court or the authority on completion of the partition, and in the instant case, the Revenue Officer can ask any of the parties to the partition to file non-judicial stamp for preparation of instrument of partition. Unless the stamp is filed and instrument drawn partition even if completed cannot be implemented. Reliance can be placed for the view on Akram Moquim Ansari v. Mst. Asghari Begum PLD 1976 Kar. p.542 and Y. Laxmi Prasannam v. Y. Narasayya and another AIR 1975 Adhra Pradesh p.91.
As already discussed though partition in the instant case was completed but none of the parties filed the requisite stamp for instrument of partition and in its absence neither the possession could be delivered nor mutation attested. Accordingly we accept this writ petition, declare the orders of respondents 1 and 2 illegal and without lawful authority hence quash the same. However, possession can be delivered to the parties in pursuance of the partition already completed and mutation attested, if any of the parties to the partition file the stamp and ask for preparation of instrument of partition. Parties are to bear their own costs.