This revision petition is directed against the order of Additional Commissioner (Cons.), Faisalabad Division dated 25-7-1994 whereby the orders of the Consolidation Officer and Collector (Cons.), Jhang keeping the wanda of the parties joint were maintained.
2. The facts leading -to the present revision petition are that prior to consolidation the parties were joint owners in Khata numbers 4, 5 and 6 in village Muradwala, Tehsil and District Jhang. The- village was taken up for consolidation in 1993 and in fact the petitioner was the prime mover for these proceedings with the sole object of having his holding separated from that of the respondents. As per his request, the consolidation staff proceeded to partition the joint holding and a separate wanda of the petitioner was prepared vide Scheme No.67 wherein. His entitlement was adjusted against Killa Nos. 13, 14/2, 15/2, 16, 17, 24 and 25 of Square No.45 and Killa Nos.4 to 7 and 15/1 of Square No.46, total measuring 80 Kanals. This proposal was duly accepted by the petitioner as indicated from the signatures of his father in column No.6 of the relevant page of the Register Scheme. However, it appears that the other co--owners of the joint holdings viz, the respondents did not agree to this partition and insisted on keeping the Khata joint. Scheme No.67 was, therefore, dropped and the entitlements of both the parties adjusted under the joint Scheme No.88. This was much to the protest of the petitioner who, as per record of the proceedings relating to the confirmation of the scheme, raised strong objections against joint scheme and made persistent requests before the Consolidation Officer and the Collector (Cons.) for separation of his wanda as proposed under Scheme No.67. However, his objections were ruled out in view of non--agreement of the other co-owners i.e. Respondents and the joint Scheme No.88 was finally confirmed by the Consolidation Officer on 31-10-1993.
3. The petitioner then filed an appeal before the Collector (Cons.) who dismissed the same vide order dated 23-1-1994 on the ground that majority of co-owners did not want partitioning of the joint Khata and the same could not be done on the single request of the petitioner. The petitioner's Revision Petition before the Additional Commissioner (Cons.) also met the same fate and the said Court in his impugned order, dated 25-7-1994 conceded that there was nothing to bar the partitioning of the joint Khata but at the same time he refused to grant relief to the petitioner on the ground that the parties appeared to be adamant on their respective stand-points and in such circumstances the partitioning of the joint Khata would amount to involving them in further litigation. The petitioner has now knocked at the door of this Court for redress by means of the instant revision petition.
4. Arguments of the parties have been heard and record perused It will be seen that the partitioning of the joint Khata had been refused all along on the sole ground that the request was coming only from a single co-owner i.e. The petitioner and the other co- owners were not agreeable to this. What has been overlooked is the fact that out of the total holding measuring about 158 Kanals the petitioner owns 80 Kanals of land which means that he is owner of more than 50% of the land in the joint holding. It is not without reason that the petitioner has been endeavouring for separation of his Khata and even invoked the process of consolidation for this purpose. There is obviously no love lost between the parties and in fact it is a case of so many against one. It is on record that the respondents are not allowing the petitioner to enjoy the usufruct of his land and even during pendency of this revision he had to apply to this Court for appointment of a receiver to get his due share of produce. If the consolidation process can be of no help in such a case then, I am afraid, the consolidation would be a worthless exercise.
6. In fact it is one of the primary and major functions of the consolidation to allow partitioning of the join Khatas. In this connection it will be useful to refer to the instructions contained in the B.O.R's. Memo. No.149-90/152--CH(P)I, dated 23-1-1990 which provide that partition of joint Khatas can be undertaken on application of any joint owner. The position was further elaborated in the case reported at 1992 M LD 504 wherein it was held that any co-sharer could apply for partitioning of joint Khata and when the parties cannot live amicably together the partition would be appropriate and proper. It is unfortunate that despite the fact this established legal position was in the notice of the lower Courts they chose to proceed in complete disregard of the same. To add to this the Additional Commissioner (Cons.) had the audacity to say that though there was nothing to prevent the partitioning of the joint Khata yet the request to this effect could not be accommodated for fear of the parties getting locked into further litigation, as if the keeping of the Khata joint would ensure peace between the parties. Surely the solution lies otherwise m that, in the given circumstances of the case, the partitioning of the joint Khata is the only way to put an end to the constant state of confrontation between the parties.
7. As for the respondents they have nothing worthwhile to say on the legal as well as moral plane.
They are unable to point out any legal provision under which a right-holder can be forced to remain in the joint Khata against his wishes. They are also unable .To give any reason for opposing the petitioners' request for separation of this wanda. I am, therefore, constrained to conclude that their disagreement is just for the sake of disagreement and is without any rationale. Hence, I find no earthly reason to refuse the request of the petitioner for separation of his wanda.
8. In view of the above the impugned order of all the three Courts below are held to be absolutely improper and against law. The same are, therefore, set aside and it is ordered that the joint holding of the parties should be partitioned and entitlement of the petitioner and that of the respondents should be adjusted under separate schemes.
9. The separate wanda of the petitioner as originally proposed vide Scheme No.67, appears to be quite appropriate and the petitioner also seems to be satisfied with the same. The respondents on the other hand have some reservations about the distribution of the land made in the said scheme. Hence, in order to remove any chances of misadjustment of land, the matter is referred to Consolidation Officer, Jhang for re-framing separate wandas of the parties after affording them an opportunity of being heard. For this purpose the previous adjustment proposed under Scheme No- 67 and the contentions of the petitioner in para. No.8 of this Revision Petition will be fully kept in view.