ABDUL MATEEN Versus GHARIB SHAH

MOHAMMAD IBRAHIM KHAN, J.--- By way of presenting this Revision Petition, Abdul Mateen the petitioner pray into the prayer:

"It is therefore, humbly prayed that on acceptance of this revision petition the impugned judgment and decree dated 16.04.2007 passed by the learned appellate Court may kindly be set aside and judgment and decree dated 14.02.2006 passed by the learned Civil Judge/Trial Court may kindly be restored and pass judgment and decree in favour of petitioner against the respondents."

2. The respondent Gharib Shah by his suit seeking declaration or specific performance of contract that he is being the owner of 09 Kanals 12 Marlas in Khasra No.2521 and 05 Kanals 08 Marlas in Khasra No.2535, the total of which comes to 15 Kanals as per jamabandi for the year 2002-2003. This land is situated within the area of Kalyani. He being its owner in possession on account of private partition and on the basis of agreement, the revenue record is liable to correction. Besides, there is a prayer that there shall be no interference in his peaceful possession while no transaction shall take place either of transposition or by way of mortgage. The last prayer is for obtaining possession if it not proved.

3. This suit was hotly resisted on many legal and factual grounds. The learned trial Court framed the following issues:

4. On the basis of the evidence led by the respondent No.1 (herein before called as plaintiff) on examining PW-1 Muhammad Ghafoor Patwari Halqa, PW-2 Gharib Shah, PW-3 Karim Khan, PW-4 Masahoor and on the other part the petitioner (herein before called as defendant) examining DW 1 Abdul Mateen. The learned Court of Civil Judge-III/Illaqa Qazi, Buner granted decree. This was assailed before the learned District Judge/Zilla Qazi Buner who vide the judgment dated 16.04.2007, on acceptance of appeal set aside the judgment and decree of the learned trial Court.

5. Having heard arguments of learned counsel for the parties at length, record with their assistance gone through.

6. Just at the time of the arguments when the issues were drawn and framed from the pleadings of the parties, the learned counsel for the respondent was asked whether on the basis of issue No.4 relating private partition how it is expected that a Civil Court will give finding when it is a matter in between two brothers, the fard jamabandi for the year 2002-2003 showing their names to be owners of their respective shares being sons of Munjab Khan. The Khasra Girdawari would also reveal that these number Khasras are in respective possession of the owners. When under a private settlement any partition has taken place, section 147 of the Revenue Act 1967 will apply which reads as:

"147.Affirmation of partitions privately affected. -

(1) In any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition.

(2) On receiving the application, the Revenue Officer shall enquire into the case, and if he finds that the partition has in fact made, he may make an order affirming it and proceed under sections 143, 144, 145 and 146, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter."

7. Without dilating upon the evidence produced, the findings of the learned Civil Judge and that of the learned District Judge/Zilla Qazi, where such a situation arises that the co-owners seek partition on the basis of private settlement, then in the wisdom contained in PLD 2012 Peshawar 151 (Syed Musarrat v. Syed Ahmad Shah alias Lal Bacha), the parties interested in separating the share shall recourse to file an application for the affirmation of private partition which is sine qua non under section 147 of the West Pakistan Land Revenue Act, 1967.

8. In such terms while setting aside the impugned judgments, the plaint is returned which shall be presented in the form of an application under section 147 of the West Pakistan Land Revenue Act (XVII of 1967) before the Revenue Officer for obtaining the relief as prayed for. Otherwise for deficient evidence the suit stand dismissed.

MQ/118/P Plaint returned.