Syed ASLAM SHAH Versus Mst. SAKINA

1. This first appeal under section 141(c) under the West Pakistan Land Revenue Act, 1967 is filed by Syed Aslam Shah and three others against the decision of the Assistant Commissioner, Sanghar dated 21‑5‑1979 whereby the Revenue Officer effected partition of a joint holding comprising of serval survey numbers inherited by the parties jointly through a common ancestor Abdullah Shah Bukhari. Mr. Rasheeduddin learned counsel for the respondents has raised a preliminary objection to the maintainability of the above appeal on the ground that the mutation in respect of same property was already recorded in the record of the rights by the Assistant Commissioner on 5‑6‑1978 which was never challenged by the present appellant and as such they could not maintain an appeal against the order passed by the Assistant Commissioner partitioning the joint holding between the parties. Alternatively it is urged by Mr. Rasheeduddin that the appeal, if any, would lie under section 161 of the Sind Land Revenue Court to the Deputy Commissioner as the order was passed by the Assistant Commissioner. On the other hand learned counsel for the appellants contends that as the question of title was adverted to by the Assistant Commissioner while deciding the application under Section 135 of the West Pakistan Land Revenue Act, 1969, the decision will be open to incident of appeal as an order of Original Civil Court in accordance with Section 151 of the Land Revenue Act. It is also urged by Mr. Rasheeduddin that even if it is accepted that the appeal was competent against the order of Assistant Commissioner as an appeal from the order of Civil Judge then it should have been instituted in the District Court and not in the High Court. I have considered the above objections raised by the! counsel and I am of the ‑view that as the question of title was adjudicated upon by. the Assistant Commissioner while effecting the partition of the property an appeal is competent under Section 141 (5)(C) of the West Pakistan Land! Revenue Act, 1967 and as the valuation of the property was over Rs.25,000 1st A appeal to this Court was competent. It may also be mentioned here that 1st appeal filed by the appellant is not against the order of mutation of property but against the order of partition under section 135 West Pakistan Land Revenue Act and as such on appeal under section 141 of the Act was maintainable in view of section 141 of the Act. The next question which requires consideration in the case is, whether in the circumstances of the case the Revenue Authorities were competent to effect partition of the property in suit. It is an admitted position that the suit property is an urban property situated within the local limits of Shahdadpur Municipality. The learned counsel for the appellant has produced today before me certified copy of F.C. Suit No.169 of 1981 instituted by respondents Mst.Sakina and Saleem Shah genuineness whereof is not disputed. B The respondent having resorted to a remedy before the Civil Court which in the circumstances of the case appears to be an appropriate remedy, the jurisdiction of Revenue Authorities under section 135 of the Land Revenue Act for partition of the property was not available in the case. I accordingly accept this appeal, set aside the order of the Assistant Commissioner but there will be no order as to cost.

2. M.Y.H./A‑339/K Appeal allowed.