This writ petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, calls in question the order passed by respondent No. 9 on June 12, 1993 and announced in July 10, 1993.
2. The facts as stated in the petition are that the petitioner alongwith his brother purchased the land measuring 1 Kanal 19 Marlas and 3-1/3 Sarsahi, 7/80 shares, Khewat No.211, situate in village Kaneli, Tehsil Mirpur from respondent No. 11, through a registered sale-deed executed on May 16, 1978. It was further disclosed that the father of respondents Nos. 1 to 3 and husband of respondent No.2, filed a suit for cancellation of the above sale-deed on the ground that Survey Nos.2431, 2440 and 2456 fell in their exclusive possession by private partition. It was also mentioned in the suit that the petitioner may seek partition of the land under law. It was also disclosed that the petitioner also filed a suit for permanent injunction, claiming that Survey No.2440 was in his exclusive possession and the defendants may be refrained from interfering in his possession. The suits were consolidated and were dismissed for want of proof, by the learned Sub Judge, Mirpur, on November 30, 1981. Both the parties filed appeals before the District Judge, Mirpur, but they met the same fate.
However, an observation was made that the petitioner and pro forma-respondent No. 14 have stepped into the shoes of the vendor, as such are entitled to seek the partition. The petitioner, in consequence, alongwith his brother, filed an application for partition in the Court of Revenue Assistant, Mirpur, another application was also moved by another person, namely, Muhammad Azam, a co-- sharer in the land. The Revenue Assistant accepted both the applications and allowed partition of the land on June 28, 1986. The order was set aside on an appeal files by the respondents before the Collector. District Mirpur. Feeling aggrieved by the above order, the petitioner preferred an appeal before the Commissioner which was rejected and further a revision before the Financial Commissioner also met the same fate. This writ petition has been filed to challenge the above order.
3. Raja Muhammad Siddique Khan, the learned counsel for the petitioner has raised the following points in support of the writ petition: --
(1) That Muhammad Ajaib, the vendor is admittedly a co-sharer from whom the land in dispute was purchased by the petitioner and proforma-respondent No.14, through a sale-deed duly executed. The status of the petitioner is the same as was that of the vendor, as co---sharer.
(2) That respondents submitted before the Civil Court in the suits filed by them and by the petitioner as well that the petitioner may seek partition. Therefore, in the light of the pleadings of the parties, a direction by the District Judge, Mirpur, vide his order dated 24-9-1985 to seek partition of the land transferred in favour of the petitioner and pro forma--respondent, was issued.
(3) That respondent No.9, the Financial Commissioner Azad Jammu and Kashmir, failed to appreciate that the petitioner had already been entered in the record of rights as a co-sharer in the land, as such no further order or decree of the Civil Court, as observed by him and the subordinate Revenue Officer, was required; and
(4) That the orders passed by the District Collector, the Commissioner and the Financial Commissioner are illegal, without jurisdiction and lawful authority.
4. Controverting the contentions of the learned counsel for the petitioner, Kh. Ali Muhammad the learned counsel for the respondents maintained that the petitioner was not a joint owner of the land, therefore, an order of partition on his application was not maintainable and as such, the Collector, District Mirpur, Commissioner and Financial Commissioner, Azad Jammu 'and Kashmir, correctly passed the orders, requiring a decree from the Civil Court, on the basis of sale effected in his favour. It was also argued that the petitioner is not entitled to seek partition merely on the basis of a sale-deed. The learned counsel referred to section 135 of the West Pakistan Land Revenue Act, AIR 1940 Allahabad 399 and AIR 1946 Nagpur 354, in support of his assertions. It was further argued that the petitioner after passing of the order by the Financial Commissioner, filed a declaratory suit for the grant of decree in his favour, as such, after availing a remedy, he was not entitled to invoke the Constitutional jurisdiction of this Court. However, the learned counsel did not contest the share of the vendor entered in the record and also argued that the petitioner can seek declaratory decree on the basis of a sale effected in his favour through a sale--deed. The contention of the learned counsel for the petitioner with regard to advancing the plea of partition before the Civil Court by the respondents, in course of proceedings in the suits earlier filed by the petitioner and respondents, was not controverted.
5. In reply to the arguments addressed by Khawaja Ali Muhammad, the learned counsel for the petitioner further argued that the point raised with regard to alternate remedy availed by the petitioner,. Is without any substance as, according to the learned counsel, the filing of the suit was unnecessary apart from the fact that the suit was withdrawn, to avail the present Constitutional remedy.
6. I have heard the learned counsel for the parties and also gone through the record. Before adverting to other points, it is necessary to resolve the point raised with regard to availing alternate remedy by the petitioner. The learned counsel for the petitioner has brought on record an application showing therein the withdrawal of above-referred suit from the Civil Court, for filing the Constitutional petition. Even otherwise, the filing of the suit does not bar the petitioner from availing the present remedy where constitutionality of the orders passed by the revenue authorities, is addressed and it is claimed in the petition that insistence of the revenue authorities for the petitioner to get a declaratory decree for filing a partition application, is not based on correct appreciation of law. Therefore, it is held that the present petition is not barred on the ground of the petitioner having filed a declaratory suit in the Civil Court.
7. It is admitted between the parties that respondent No. 11, Ajaib Hussain was a co-sharer, alongwith other respondents, in the land in dispute. The sale--deed was executed in favour of the petitioner by the aforesaid vendor. It is not respondents' case that the vendor has alienated the land in excess of his share or otherwise, the sale effected in favour of the petitioner and pro forma- respondent No. 14, is illegal. In course of the proceedings in the Civil Court, in the case filed by the petitioner and the one filed by the respondents for cancellation of the sale-deed, it was pleaded by the respondents that petitioner may seek partition but is not entitled to file a civil suit. It may also be mentioned that in course of partition proceedings, even the validity of the sale-deed was not challenged except a legal objection raised with regard to the requirement of declaratory decree by the Civil Court, as is evident from the order passed by the Revenue Assistant, on June 28, 1986.
8. The learned counsel for the respondents, on the basis of section 135 of the West Pakistan Land Revenue Act, as adapted in Azad Jammu and Kashmir, stressed that the petitioner is not a joint owner of the land nor his right to the share has been established by a decree, therefore, is not entitled to file the suit. To appreciate the proposition, the relevant section is reproduced: -- "S.135. West Pakistan Land Revenue Act.--Any joint owner of land, or any joint tenant of a tenancy in which a right of occupancy subsists may apply to a Revenue Officer for partition of his share in the land or tenancy as the case may be, if--
(a) at the date of the application the share is recorded under Chapter IV as belonging to him, or
(b) his right to the share has been established by a decree which is still subsisting at that date, or
(c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof."
9. A perusal of the aforesaid statute reveals that any joint owner of the land whose share at the time of filing the application is recorded under Chapter IV as belonging to him, or his right to the share has been established by a decree or a written acknowledgement of his right has been executed by all the persons interested therein, can file an application for partition. The petitioner herein has filed the partition application on the basis of the right accrued in his favour duly transferred by a shareholder whose share is not disputed, either before the Revenue Courts or before this Court. The validity of the sale-deed has also not been challenged either through a civil suit or by raising any objection while filing the same before the Revenue Courts. Therefore, the objection for a Civil Court's declaration appears to be merely an academic one. It may further be stated that the requirement of above-referred section of West Pakistan Land Revenue Act safeguards the rights of co-sharers against the bogus claims, either through sale-deeds or through other means, as such the declaratory decree on the basis of any right, was held necessary or a written acknowledgement on behalf of other interested persons for filing the application for partition. In the instant case, as discussed above, no dispute with regard to the validity of the sale- deed, either on the ground of sale in excess of share or otherwise, is contested between the parties.
Therefore, acquiring a declaratory decree in this regard shall not serve any useful purpose, particularly in the circumstances when the petitioner and the pro forma-respondent No. 14 have become co-sharer in the ' Misal--Haqiat' for the year 1991-92 which has been prepared in the latest Settlement Operation. It will not be out of place to mention that the above record was available with the Financial Commissioner who in his order, has insisted for a Civil Court's decree for the petitioner as a joint owner before filing the partition application.
10. Therefore, in the light of above discussion, it is concluded that the petitioner and pro forma- respondent No. 14, in the circumstances described above were entitled to file the application for partition in which lawful order was passed by the Revenue Assistant, Mirpur on June 28, 1986. The order recorded by the Financial Commissioner, impugned herein, including the orders of Commissioner, Azad Jammu and Kashmir and Collector District Mirpur, are set aside and that of Revenue Assistant, Mirpur is restored. It is further directed that further necessary proceedings may be taken in light of that order. Consequently, the writ petition stands accepted.