PLJ 2004 SC 427
[Appellate Jurisdiction]
Present: MIAN MUHAMMAD AJMAL AND SARDAR MUHAMMAD RAZA KHAN, JJ.
MUHAMMAD UMAR KHAN and another-Petitioners
versus
SENIOR MEMBER BOARD OF REVENUE NWFP and others-Respondents
Civil Petition No. 800-P of 2003, decided on 13.2.2004.
(On appeal from the judgment dated 12.12.2003 passed by the Peshawar
High Court, Peshawar Circuit Bench, D.I. Khan, in Writ
Petition No. 135 of 2002)
NWFP Land Revenue Act-
—Ss. 135 & 137-Partition of joint holding property-Non impleadment andnon-Service of Petitioners-Dismissal of petition by Board of Revenue-
Review Petition also failed-Writ Petition against order of Member Board
of Revenue dismissed by High Court-Leave to appeal-Court of-Prayerfor-Partition proceedings are conducted under special law contained inNWFP Land Revenue Act, Sections 135 and 137 whereof are extremelyrelevant and important-Section 135 in Chapter IX of Partition providesas to how application for partition is filed-Any joint owner of land mayapply to Revenue officer for partition of his share in land-Only condition
relevant are to effect that he is recorded as sharer in revenue record orthat his right is established by decree subsisting at relevant time orwritten acknowledgment of that right has been executed by all personsinterested in admission or denial thereof-Procedure regarding issuanceof notice is specifically provided in S. 137 of Land Revenue Act differentfrom contained in Order V of CPC-Contemplates of notice of general
nature, as rightly observed by High Court, and it does not in any mannerequate with mode of service provided in CPC-Rather, Revenue officerafter consulting revenue record, is required suo-moto to issue notice orproclamations for information to all co-sharers-Such manner of serviceprovides opportunity to co-sharers to join partition proceedings evenwhen they get knowledge thereof-Held : Petitioners not only hadknowledge of proceedings entailing upon appointment of their own fatheras their attorney and appointment of Advocate but also have joinedproceedings-Held further : Petitioners have come with fake stance inorder to frustrate proceedings-Petition without force and leave to appealrefused. [P. 430] A, B, C, D & E
Review Petition also failed-Writ Petition against order of Member Board
of Revenue dismissed by High Court-Leave to appeal-Court of-Prayerfor-Partition proceedings are conducted under special law contained inNWFP Land Revenue Act, Sections 135 and 137 whereof are extremelyrelevant and important-Section 135 in Chapter IX of Partition providesas to how application for partition is filed-Any joint owner of land mayapply to Revenue officer for partition of his share in land-Only condition
relevant are to effect that he is recorded as sharer in revenue record orthat his right is established by decree subsisting at relevant time orwritten acknowledgment of that right has been executed by all personsinterested in admission or denial thereof-Procedure regarding issuanceof notice is specifically provided in S. 137 of Land Revenue Act differentfrom contained in Order V of CPC-Contemplates of notice of general
nature, as rightly observed by High Court, and it does not in any mannerequate with mode of service provided in CPC-Rather, Revenue officerafter consulting revenue record, is required suo-moto to issue notice orproclamations for information to all co-sharers-Such manner of serviceprovides opportunity to co-sharers to join partition proceedings evenwhen they get knowledge thereof-Held : Petitioners not only hadknowledge of proceedings entailing upon appointment of their own fatheras their attorney and appointment of Advocate but also have joinedproceedings-Held further : Petitioners have come with fake stance inorder to frustrate proceedings-Petition without force and leave to appealrefused. [P. 430] A, B, C, D & E
Mian Younis Shah, Sr. ASC with Syed Safdar Hussain, AOR for Petitioners.
Haji Muhammad Zahir Shah, AOR for Respondents Nos. 4, 5, 8-10 &12.
Nemo for others Respondents. Date of hearing : 13.2.2004.
JUDGMENT
Sardar Muhammad Raza, J.--In March 1974, joint holding measuring 40876 kanals 13 marlas was sought by Mauladad and another, the joint land owners, to be partitioned. Mode of partition was approved on 24.7.1991 by Revenue EAC, D.I. Khan. Four appeals filed by different co-sharers before Additional Commissioner entailed upon remand of the case with direction to reconsider the proceedings by keeping in view the share of the joint owners as well as the factum of possession.
2. The aforesaid remand order was challenged before the Board ofRevenue, seeking modification that while the possession of a co-sharer isbrought under consideration, due weight be given to the nature and kind ofland found in their respective possession. The SMBR partially accepted therevision and directed the lower forum to allow a co-sharer to retain hispossession due to improvements made by him and the rights of co-sharers beprotected keeping in view the new development having had taken place due
to the Chashma Right Bank Canal.
to the Chashma Right Bank Canal.
3. The present petitioners challenged the aforesaid order dated4.4.1994 through Writ Petition No. 183 which was dismissed in limine. Theyfurther resorted to this Court through CPLA No. 117 of 2000 which wasdisposed of on 28.11.2001 providing another opportunity to the petitioners toapproach Board of Revenue NWFP for reconsideration of the matter ongrounds of non-service of the petitioners because the petitioners had takenthe plea that their service in the proceedings was not effected. Subject to the
aforesaid observations the petition was refused on merits. They approachedBoard of Revenue through a review petition which was dismissed byMember Board of Revenue on 15.8.2002 and hence they filed Writ PetitionNo. 135 of 2002 which too was dismissed on 12.12.2003. Through the instantpetition, the petitioners seek leave to appeal against the order dated12.12.2003 of a learned Division Bench of Peshawar High Court.
aforesaid observations the petition was refused on merits. They approachedBoard of Revenue through a review petition which was dismissed byMember Board of Revenue on 15.8.2002 and hence they filed Writ PetitionNo. 135 of 2002 which too was dismissed on 12.12.2003. Through the instantpetition, the petitioners seek leave to appeal against the order dated12.12.2003 of a learned Division Bench of Peshawar High Court.
4. The main contention of the petitioners is to the effect that neither
they were arrayed as a party in the original partition application nor werethey otherwise served in the matter. That even the notice throughproclamation did not contain their names. That any knowledge obtained by a
person out side the Court, otherwise than in due course of law, cannot bedeemed to be a proper service within the contemplation of civil law. That theallegation against them that they had appointed their own father AurangKhan as their Attorney, loses significance when they were never a party to
the proceedings. That another allegation that they had engaged Abdul LatifBaloch, Advocate in the proceedings is also unfounded because it wasMauladad who had engaged such counsel.
they were arrayed as a party in the original partition application nor werethey otherwise served in the matter. That even the notice throughproclamation did not contain their names. That any knowledge obtained by a
person out side the Court, otherwise than in due course of law, cannot bedeemed to be a proper service within the contemplation of civil law. That theallegation against them that they had appointed their own father AurangKhan as their Attorney, loses significance when they were never a party to
the proceedings. That another allegation that they had engaged Abdul LatifBaloch, Advocate in the proceedings is also unfounded because it wasMauladad who had engaged such counsel.
5. Today we have seen the copy of Power of Attorney which clearlyshows that Muhammad Umer Khan and Muhammad Ajmal Khan, thepetitioners had appointed Aurang Khan, their father as Special Attorney. We
have also seen the vakalatnama of Abdul Latif Baloch Advocate which bearsthe name and signature of not only Mauladad but also of Muhammad Umer
Khan and Muhammad Ajmal Khan, the petitioners in addition to numerousothers like Muhammad Idress Khan, Muhammad Saeed Khan and AttaUllah Khan This undoubtedly proves that the petitioners not only had
have also seen the vakalatnama of Abdul Latif Baloch Advocate which bearsthe name and signature of not only Mauladad but also of Muhammad Umer
Khan and Muhammad Ajmal Khan, the petitioners in addition to numerousothers like Muhammad Idress Khan, Muhammad Saeed Khan and AttaUllah Khan This undoubtedly proves that the petitioners not only had
complete knowledge of the partition proceedings but also had participated therein at different stages.
6. Even if it is assumed that they were not a party to theproceedings and even if it is assumed that notice was not served upon themas provided by the Code of Civil Procedure yet we observe that partitionproceedings are conducted under a special law contained in the NWFP Land
Revenue Act, Sections 135 and 137 whereof are extremely relevant and
important. Section 135 in Chapter XI of partition provides as to how anapplication for partition is filed. Any joint owner of land may apply to aRevenue Officer for partition of his share in the land. The only conditionsrelevant are to the effect that he is recorded as sharer in the revenue record
or that his right is established by a decree subsisting at the relevant time ora written acknowledgement of that right has been executed by all personsinterested in the admission or denial thereof. This section is completelysilent about the respondents to be impleaded.
Revenue Act, Sections 135 and 137 whereof are extremely relevant and
important. Section 135 in Chapter XI of partition provides as to how anapplication for partition is filed. Any joint owner of land may apply to aRevenue Officer for partition of his share in the land. The only conditionsrelevant are to the effect that he is recorded as sharer in the revenue record
or that his right is established by a decree subsisting at the relevant time ora written acknowledgement of that right has been executed by all personsinterested in the admission or denial thereof. This section is completelysilent about the respondents to be impleaded.
7. The procedure regarding issuance of notice is specifically providedin Section 137 of Land Revenue Act altogether different from that contained
in Order V of the CPC. The notice is required to be issued by the RevenueOfficer on such of the recorded co-sharers as have not joined in theapplication. Meaning thereby that even if the co-sharers are not joined in the
partition application, the Revenue Officer is to issue notice to all the sharers
after himself consulting the revenue record. He is further empowered toissue notice or proclamation for the information of any other person orpersons whom he may deem to be directly or indirectly interested in thepartition application. The Section in question contemplates of a notice ofgeneral nature, as rightly observed by the High Court, and it does not in anymanner equate with the mode of service provided in the Code of Civil
in Order V of the CPC. The notice is required to be issued by the RevenueOfficer on such of the recorded co-sharers as have not joined in theapplication. Meaning thereby that even if the co-sharers are not joined in the
partition application, the Revenue Officer is to issue notice to all the sharers
after himself consulting the revenue record. He is further empowered toissue notice or proclamation for the information of any other person orpersons whom he may deem to be directly or indirectly interested in thepartition application. The Section in question contemplates of a notice ofgeneral nature, as rightly observed by the High Court, and it does not in anymanner equate with the mode of service provided in the Code of Civil
Procedure. Rather, the Revenue Officer after consulting the revenue record, is required suo-moto to issue notice or proclamations for information to all the co-sharers even if not a party to the application. Such manner of service provides opportunity to the co-sharers to join the partition proceedings even when they get knowledge thereof.
8. The petitioners not only had knowledge of the proceedings entailing upon the appointment of their own father as their attorney and the appointment of an Advocate but also have joined the proceedings. Now that
the partition happened to be^fmalized, they have come with a fake stance in ' order to frustrate proceedings that had commenced way back in the year 1974.
9. In the wake of the facts and circumstances of the present case,
[there being no force in the petition, it is hereby dismissed and leave to appeal refused.
(B.T.) Petition dismissed.
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