QAZI EHSANULLAH QURESHi, J.-- The Petitioner/plaintiff has find a suit against respondents/defendants for a declaration to the effect that plaintiff is owner in^possession of an area measuring 4 kanals 10 marlas out of 11 kanals 11 marlas from suit khasra Nos. 179 and 184 situated in village Pasala, Abbottabad (old khasra No.2959/1669); that the tatamis have wrongly been carved out of old khasra No.2959/1 669 being illegal and collusive are ineffective upon the rights of the plaintiff and are liable to cancellation. A prayer for permanent injunction restraining the defendants from interference or laying claim on a particular portion of the suit property or alienating it was also made. The suit was contested and ultimately the learned civil Judge after recording of evidence and hearing the learned counsel for the parties dismissed the suit. The petitioner then preferred an appeal before the District Judge, Abbottabad, which also met the same fate. Hence the present revision petition.
2. I have heard the learned counsel for the parties and with their able assistance have gone through the record of the case.
3. The learned counsel for the petitioner inter-alia contended that 'tatima of Old Khasra No. 2959/1669) carved out by the Revenue Authorities is wrong and illegal and is a result of fraud and collusion. The Revenue Authority cannot carry out any 'bandobast' and carve a 'tatima' without associating the concerned parties i."e. The petitioner that both the courts below had not applied their judicial mind and decided the case ignoring the evidence on record. ,
4. The learned counsel for the respondents opposed the contentions of the learned counsel for the petitioner and submitted that there is no such provision in the Land Revenue Act to carve out a 'tatima' or to carry out 'bandobast' with the consent of the co-sharer. The civil suit is not maintainable under Section 172 of the Land Revenue Act. The evidence of the petitioner is not in conformity with the plaint. There are two types of land in the area one is 'kalsi' and the other 'dhaka Rakh'. The petitioner was awarded share in 'kalsi' land which is much superior than 'Dhaka Rakh'.
Therefore the findings of the lower courts are well founded and not interfereable in the circumstances of the case.
5. The petitioner at the very outset stated at the bar that he is entitled1 for the land measuring 2 kanals 10 marlas vide fard 1982-83 and he is not going to claim the land measuring 4 kanals 10 marlas out of II kanals II marlas. In suit Khasra Nos. 179 and 184 (Old Khasra Nos. 2959/1669) but the 'bandobast' and the tatima so carved out in the manner without associating the petitioner .Is illegal, ineffective and in-operative on his rights as the Revenue Authorities are not given un- armed, naked and unbridled power to decide the fate of the co-sharers according to their choice and will. I am very clear on the point that the bandobast will not be one sided infringing the rights of any party concerned in the land under bandobast. The support is sought from PLD 1992 Peshawar 103 (a) reads as under: ...Join property owned by plaintiff and defendants... Defendants selling their share out of joint property and a "Tatima" carved out of such property... Legality... Land in question, being in joint ownership, defendants could sell their share out of same, but no share could be separated as a "Tatima" carved out of common property in absence of any express permission of plaintiff, who was a co-sharer in the whole of the property and interested in every inch of joint land".
Keeping in view the above, the petition is allowed, the suit of the petitioner is decreed to the extent that he is owner of a share measuring 2 kanals, 10 marlas out of total land measuring II kanals, II marlas vide Khasra Nos. 179 and 184 and the same shall be separated and Tatima should be prepared afresh associating both the parties and shall be carved out honestly and fairly keeping in mind the rights of both the parties.