Form No: HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN.
JUDICIAL DEPARTMENT
WP No.7963/2011

Ghulam Sarwar, etc. Versus Member BOR, etc.

S. No. of Date of order/ Order with signature of Judge, and that of

order/ Proceeding Parties or counsel, where necessary
Proceeding

17.04.2014. Mehr Muhammad Tariq Mirali Advocate for the

petitioners.
Mr. Muhammad Javed Saeed Pirzada AAG.
M/s. Muhammad Siddique Bhatti and Malik Abdul
Majeed Advocates for the respondents.

Through this writ petition, Ghulam

Sarwar and Mst. Najma have assailed various

orders passed by the Revenue Authorities, which

arose out of partition proceedings carried out

under the W.P. Land Revenue Act, 1967.

2. The precise facts are that Abdul

Majeed, Ghulam Fareed, Abdul Hameed,

Sharman Mai, Jannat Mai and Zarina Mai filed a

petition before the Revenue Officer, Multan

seeking partition of Khewat No.62 situated in

Chak No.14/F, Multan. The application moved

by the aforementioned was allowed vide order

dated 18.07.2001. Without going into details, the

Writ Petition No.7963 of 2011. 2

Revenue Officer concerned proceeded to accept

the proposed wanda of the aforementioned

respondents. Since the present petitioners were

directly and adversely affected, they preferred an

appeal before the District Officer (Revenue),

Multan, who allowed the same and remanded the

matter to the Tehsildar concerned. Tehsildar

passed a fresh order dated 13.05.2004. The new

wanda proposed by the respondents herein and

endorsed by the Revenue Officer was not

acceptable to the petitioners. Once again, they

filed an appeal before District Officer (Revenue),

Multan, which was dismissed vide order dated

29.12.2004. Both the aforesaid orders dated

13.05.2004 and 29.12.2004 were assailed by the

petitioners before the Executive District Officer

(Revenue), Multan but he also refused to

interfere with the orders passed by Tehsildar and

District Officer (Revenue), Multan, dismissing

the revision petition of the petitioners vide order

dated 20.12.2006. All these orders were the

subject matter of ROR No. 2460/2006. As it is,

the Member Board of Revenue, upheld the

aforementioned orders passed by the subordinate

revenue authorities, dismissing the revision

Writ Petition No.7963 of 2011. 3

petition filed by the petitioners herein vide order

dated 10.05.2011.

3. Learned counsel for the petitioners

contends that the impugned orders were without

jurisdiction; that the principles regarding the

division of joint land were totally ignored; that

the land on which the petitioners had built their

houses and they have been residing there for two

decades were ordered to be given to the

respondents without any rhyme or reason; that

the entire joint land between co-sharers was

required to be partitioned off and there could not

be any pick and choose. He criticizes that a

separate wanda was created for respondents

Nos.5 to 10 herein, without making necessary

adjustments regarding the land to be handed over

to the petitioners and other co-sharers. He

wondered how partial partition of joint land

could be ordered.

4. Learned counsel for respondents Nos.

5 to 55 supported the impugned orders. It was

argued that the petitioners are cousins of

respondents Nos. 5 to 10 herein, but they have

been enjoying the usufruct of the entire land,

Writ Petition No.7963 of 2011. 4

without sharing the produce of the land in

question. However, it was conceded that the land

on which the petitioners had built their houses

was wrongly given to the respondents. On a

query of the Court, it was affirmed that no

particular wanda was created or separated for the

petitioners. In other words, they were left in the

lurch.

5. Arguments heard. Record perused.

6. From a perusal of the revenue record

annexed to the writ petition, it is pretty clear that

Khewat No.62 admeasures 356 Kanals 1 Marla, and

the share of respondents Nos. 5 to 10, who had

made an application for partition of the joint land,

comes to 22 Kanals 18 Marlas. Ghulam Sarwar, the

petitioner is stated to be owner of 10 Kanals 18

Marlas. Strangely enough, he purchased another

peace of land measuring 10 Kanals through

mutation No.662 attested on 10.11.1998, but in all

the impugned orders, he has been denied the

ownership of this land on the ground that someone

has instituted a suit for pre-emption regarding the

aforesaid sale mutation. The approach of the

Revenue Authorities, who are considered to be

Writ Petition No.7963 of 2011. 5

experts in their field, is fallacious and wholly

untenable, to say the least. The institution of a pre-

emption suit regarding a particular sale does not

lead to the inevitable result that the vendee would

ipso facto stand deprived of the same, and there is

no guarantee that a pre-emption suit would succeed

in all eventualities. Therefore, as long as Ghulam

Sarwar, the petitioner herein is not deprived of the

land purchased by him, he is to be regarded as

absolute owner of 10 Kanal land purchased by him

through mutation No.662 sanctioned on 10.11.1998.

The exclusion of this land from the name of Ghulam

Sarwar is a sufficient ground to set aside all the

impugned orders. Even otherwise, it defies

comprehension how a Revenue Officer can make

pick and choose separating a parcel of land from a

Khewat, while leaving the rest of the land

comprised in that khewat joint amongst the other co-

sharers. Whenever partition is to be made amongst

the co-sharers, it is to be made for good and every

co-sharer of joint land is to be assigned an

independent parcel of land so as to put to an end to

the fracas or dissentions amongst them

afterwards. In this respect, I am tempted to make

reference to a judgment of this Court reported as

Writ Petition No.7963 of 2011. 6

‘Ghulam Rasool and another v Muhammad Khalid

and two others.’ (2006 YLR 2298). The relevant

portion therefrom reads as under:-

“In a similar situation, matter came up for

consideration before a Division Bench of this
Court in the case of Chandi Shah v. Bahara
Shaha and other (AIR 1930 Lahore 286 (1) and it
was held that suit for partial partition should be
dismissed. In another matter Honourable
Supreme Court of this country in the case of Jan
Muhammad and another v. Abdul Rashid and 5
others (1993 SCMR 1463), it was mandated that
entire joint holding should be put to partition and
part thereof which are not partitionable or under
heavy constructions, other co-sharers can be
compensated by way of money and it was so held
on the principle that possession of cone co-
sharers in law is possession of all the co-owners.
Identical view was taken by an Honourable
Division Bench from Karachi jurisdiction in the
case of Ghazi Qaiser Pervaiz and another v.
Ghazi Faisal Pervaiz and another (2000 CLC
519). Refusal to partition a part of joint holding,
has wisdom behind it because4 some parts of the
joint holding may be of much more value, as
compared to its other parts. Party opting to come
for partition, should not be permitted to pick and
chose and to have share in valuable parts of the
joint holdings by leaving out its parts with lesser
value. Each owner is owner of every inch of joint
holding to the extent of his share and thus I am of
the considered view that a part of the joint
holdings cannot be permitted to be partitioned,
leaving out major parts thereof, as joint.”
Writ Petition No.7963 of 2011. 7

7. In the case of ‘Noor Muhammad and

others v Allah Ditta and others’ (PLD 2009

Supreme Court 198), it was held by the august

Supreme Court as under:-

“It is well settled that a co-owner in a joint

property is not entitled without assent or
acquiescence of the other co-sharers to exclude
partition of joint property or to select a particular
portion for the purpose of partition. He is
required to seek the partition of the landed
property as a whole.”

8. It goes without saying that all the

authorities are bound to follow the law laid down by

the apex Court under Article 189 of the Constitution

of Islamic Republic of Pakistan, 1973.

9. It is time that the Revenue Authorities

were reminded of the detailed rules laid down in

Chapter 18 of the Land Records Manual. It seems

that they have vowed to honour all the rules more in

the breach than in the observance. Otherwise, no

Revenue Officer worth his name would give his

blessings to the mode of a partition in which houses

in possession and occupation of a party are to be

given to the other party. As stated above, it was

conceded even by the learned counsel representing

respondents Nos. 5 to 10 that the houses in

Writ Petition No.7963 of 2011. 8

possession in occupation of the petitioners herein

were not to be given to his client. Again, the

approach of the Revenue Authorities left a lot to be

desired. The manner in which the proceedings were

carried out by the Revenue Officer concerned and

endorsed blindfolded by his high-ups in the revenue

hierarchy leaves a question mark over the

competence of the officers working in the revenue

department.

10. For what has been stated above, the

impugned orders dated 18.07.2001, 13.05.2004 and

29.12.2004 passed by respondents Nos. 1 to 4 are

hereby set aside and the matter is remitted to the

Revenue Officer, Multan, who would undertake the

partition proceedings afresh, deciding the same

within three months from the receipt of this order,

after affording an opportunity of hearing to all the

parties to the petition for partition of Khewat No.62

forming part of Chak No. 14/F, Multan. Disposed

of.

(MAHMOOD AHMAD BHATTI)

JUDGE.

APPROVED FOR REPORTING.

Judge
Writ Petition No.7963 of 2011. 9

*K. Mahmod*