When Board of Revenue can dismiss petition?

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 and non-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-Prayer for-Partition proceedings are conducted under special law contained in NWFP Land Revenue Act, Sections 135 and 137 whereof are extremely relevant and important-Section 135 in Chapter IX of Partition provides as to how application for partition is filed-Any joint owner of land may apply 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 or that his right is established by decree subsisting at relevant time or written acknowledgment of that right has been executed by all persons interested in admission or denial thereof-Procedure regarding issuance of notice is specifically provided in S. 137 of Land Revenue Act different from contained in Order V of CPC-Contemplates of notice of general nature, as rightly observed by High Court, and it does not in any manner equate with mode of service provided in CPC-Rather, Revenue officer after consulting revenue record, is required suo-moto to issue notice or proclamations for information to all co-sharers-Such manner of service provides opportunity to co-sharers to join partition proceedings even when they get knowledge thereof-Held : Petitioners not only had knowledge of proceedings entailing upon appointment of their own father as their attorney and appointment of Advocate but also have joined proceedings-Held further : Petitioners have come with fake stance in order to frustrate proceedings-Petition without force and leave to appeal refused. [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 of Revenue, seeking modification that while the possession of a co-sharer is brought under consideration, due weight be given to the nature and kind of land found in their respective possession. The SMBR partially accepted the revision and directed the lower forum to allow a co-sharer to retain his possession due to improvements made by him and the rights of co-sharers be protected keeping in view the new development having had taken place due to the Chashma Right Bank Canal. 3. The present petitioners challenged the aforesaid order dated 4.4.1994 through Writ Petition No. 183 which was dismissed in limine. They further resorted to this Court through CPLA No. 117 of 2000 which was disposed of on 28.11.2001 providing another opportunity to the petitioners to approach Board of Revenue NWFP for reconsideration of the matter on grounds of non-service of the petitioners because the petitioners had taken the plea that their service in the proceedings was not effected. Subject to the aforesaid observations the petition was refused on merits. They approached Board of Revenue through a review petition which was dismissed by Member Board of Revenue on 15.8.2002 and hence they filed Writ Petition No. 135 of 2002 which too was dismissed on 12.12.2003. Through the instant petition, the petitioners seek leave to appeal against the order dated 12.12.2003 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 were they otherwise served in the matter. That even the notice through proclamation did not contain their names. That any knowledge obtained by a person out side the Court, otherwise than in due course of law, cannot be deemed to be a proper service within the contemplation of civil law. That the allegation against them that they had appointed their own father Aurang Khan as their Attorney, loses significance when they were never a party to the proceedings. That another allegation that they had engaged Abdul Latif Baloch, Advocate in the proceedings is also unfounded because it was Mauladad who had engaged such counsel. 5. Today we have seen the copy of Power of Attorney which clearly shows that Muhammad Umer Khan and Muhammad Ajmal Khan, the petitioners had appointed Aurang Khan, their father as Special Attorney. We have also seen the vakalatnama of Abdul Latif Baloch Advocate which bears the name and signature of not only Mauladad but also of Muhammad Umer Khan and Muhammad Ajmal Khan, the petitioners in addition to numerous others like Muhammad Idress Khan, Muhammad Saeed Khan and Atta Ullah 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 the proceedings and even if it is assumed that notice was not served upon them as provided by the Code of Civil Procedure yet we observe that partition proceedings 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 an application for partition is filed. Any joint owner of land may apply to a Revenue Officer for partition of his share in the land. The only conditions relevant 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 or a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof. This section is completely silent about the respondents to be impleaded. 7. The procedure regarding issuance of notice is specifically provided in 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 Revenue Officer on such of the recorded co-sharers as have not joined in the application. 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 to issue notice or proclamation for the information of any other person or persons whom he may deem to be directly or indirectly interested in the partition application. The Section in question contemplates of a notice of general nature, as rightly observed by the High Court, and it does not in any manner 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.