Partition of Agricultural Land in Pakistan — Procedure, Pitfalls & the Cost of Delay

Pakistan has no administrative mechanism through which co-owners of property can obtain a division of their holdings outside the court system. Where joint owners are unable to agree on a division by mutual consent, the only available remedy is litigation, either before a Revenue Officer or before a Civil Court, depending on the nature of the property.

Partition is founded on the principle expressed in the maxim Nemo in communione potest invitus detineri — no person may be compelled to remain in co-ownership against his will. A suit for partition does not create new rights; it gives concrete, separate form to a share that already exists. For this reason it is often said that a partition suit produces no loser, since every co-sharer receives what was already legally his, the sole exception being a trespasser found to be in wrongful possession.

This principle, however, does not reflect the practical reality of partition litigation in Pakistan, where suits frequently take a decade or more to conclude and are, in a considerable number of cases, dismissed on account of defects that could have been avoided at the drafting stage.

Determining the Correct Forum

The first and most important question in any partition suit is jurisdiction. Property subject to partition falls into three categories: purely agricultural land, purely constructed property such as houses, shops, or commercial buildings, and property of a mixed character.

Purely agricultural land falls within the exclusive jurisdiction of the Revenue Officer under Section 135 of the West Pakistan Land Revenue Act, 1967. Purely constructed property is partitioned by the ordinary Civil Court under the Partition Act, 1893. Where the property is mixed, the determining factor is which category forms the major portion; if agricultural land predominates, the Revenue Court retains jurisdiction, and the jurisdiction of the Civil Court stands barred.

The Peshawar High Court further held that whether land or its major portion is covered by abadi, or remains exclusively agricultural, is a question of fact to be determined by the trial court through the appointment of a local commission to inspect the site.

It should be noted that a Revenue Officer's authority, even within its own sphere, is limited. In Mst. Farzana v. Mst. Sehti (2012 PLD 241 Karachi), the Karachi High Court held that a Revenue Officer, in deciding questions relating to the property to be partitioned or the mode of partition, acts only in that capacity and not as a Revenue Court or Civil Court. Where a genuine question of title arises, the Revenue Officer may either determine it himself or refer it to the Civil Court, as confirmed in Muhammad Yousaf Khan v. Board of Revenue (2002 CLC 739, Supreme Court Azad Kashmir).

The Statutory Procedure Before the Revenue Officer

Where agricultural land is the subject of partition, the West Pakistan Land Revenue Act, 1967 sets out a detailed procedure that differs in several material respects from the process followed by the Civil Courts.

An application for partition may be made under Section 135 by any joint owner whose share is recorded in the revenue record, whose right to the share has been established by a subsisting decree, or whose right has been acknowledged in writing by all interested parties.

Section 135-A makes separate provision for cases arising from inheritance. On sanction of the mutation of inheritance, the Revenue Officer is required, without any application being made, to issue notice to all joint owners calling upon them to submit, within thirty days, a scheme of private partition agreed upon by all parties. If such a scheme is submitted, it is affirmed under the procedure prescribed by Section 147. Notably, a scheme of private partition under this section may extend even to the site of a town or village, a category of property otherwise excluded from partition. Where no such scheme is submitted within the stipulated period, the Revenue Officer proceeds to formal partition proceedings on his own motion.

On acceptance of an application, Section 137 requires notice to be issued to any recorded co-sharers who have not joined in the application, and permits notice to be given, at the Revenue Officer's discretion, to any other person considered to have an interest in the matter. Section 138 requires the Revenue Officer, at the first or any subsequent hearing, to ascertain whether any other co-sharer wishes his share to be partitioned as well, and to add such person as an applicant if so. This provision serves a function comparable to that performed in civil suits by the rule against non-joinder, though it operates at the outset of proceedings rather than as a subsequently raised objection.

Section 140 requires the Revenue Officer to distinguish between two categories of dispute: questions of title in the property to be partitioned, and questions as to the property to be divided or the mode of partition. Questions of title are determined under Section 141 after due inquiry and a hearing of the parties. Questions relating to the mode of partition are disposed of under Section 142, by a reasoned order that is appealable within thirty days; proceedings are stayed where an appeal has been duly instituted and certified. An applicant dissatisfied with the outcome may seek permission to withdraw in respect of his own share, without affecting the continuation of proceedings for the remaining applicants.

The Statutory Time Limit — Section 142-A

Section 142-A imposes a statutory time limit of one hundred and eighty days for the disposal of a partition case, running from the date of application or from sanction of the mutation of inheritance. Where the Revenue Officer is unable to decide the matter within this period, he must place the case before the District Collector, with reasons, fifteen days before expiry, and the Collector may grant a single extension not exceeding sixty days. Where a question of title arises under Section 141, a further one hundred and eighty days is added to the prescribed period. A Revenue Officer who fails to decide a case within the stipulated time, or who contravenes a condition imposed by the District Collector, is liable to disciplinary action.

Section 136 excludes certain categories of property from partition altogether, or permits the Revenue Officer to decline partition at his discretion. Places of worship and burial grounds held in common must continue to be so held after partition in all cases. Embankments, watercourses, wells, tanks, and land on which the water supply to such works depends, together with grazing grounds and land forming the site of a town or village, may be excluded from partition where the Revenue Officer is of the opinion that dividing them would cause inconvenience to the persons interested or diminish their utility. Where property is excluded on this basis, Section 143 empowers the Revenue Officer to regulate its use, and the apportionment of expenditure and profit, among the co-sharers.

Once a partition is finalised, Sections 144 to 146 govern its consequences. Section 144 provides for the distribution of land revenue among the newly created holdings. Section 145 requires the preparation of a formal instrument of partition recording the date on which the partition takes effect. Section 146 entitles an owner to possession of the land allotted to him as against the other parties and their legal representatives, and permits him to apply, within three years of the date recorded in the instrument of partition, to have that instrument given effect as though it were a decree for immovable property, obviating the need for a separate suit for possession.

Section 147 allows a partition effected privately, without the intervention of a Revenue Officer, to be brought before a Revenue Officer for affirmation. If satisfied that the partition has in fact been made, the Revenue Officer may affirm it and proceed under Sections 143 to 146 as though the partition had originated before him.

The remaining provisions of the chapter are largely administrative in character. Section 148 authorises the Board of Revenue to frame rules governing the costs of partition proceedings. Section 149 permits enforcement of periodical redistribution of land where such redistribution is required by established custom. Section 150 restricts the exercise of these powers to a Revenue Officer of a rank not below Assistant Collector of the First Grade.

Common Defects in Civil Partition Suits

Where the Civil Court has jurisdiction, five recurring defects account for the great majority of suits that fail notwithstanding a valid underlying claim.

1. Non-joinder of Parties

Every co-sharer in the joint property must be arrayed as a party, either as plaintiff or defendant. The courts have consistently held that non-joinder is not, of itself, fatal to a suit. In Syed Ain Ullah v. Dilber (2013 MLD 708 Baluchistan), it was held that dismissal on the ground of non-joinder was erroneous, since Order I Rule 9 CPC provides that no suit shall be defeated by reason of mis-joinder or non-joinder, and the trial court is empowered to implead any necessary party. The same principle was affirmed in Muhammad Younas Sheikh v. Corex Enterprises (2007 MLD 508 Karachi) and in a further line of authority including 2011 YLR 1999 Quetta, 2011 SCMR 1460, 2010 MLD 1596 Quetta, and 2007 SCMR 729. Notwithstanding this settled position, prudent drafting requires that all co-sharers be joined at the outset, since the objection, though curable, is frequently raised and causes avoidable delay.

2. Partial Partition

A partition suit must relate to the entire joint property and not merely a selected portion of it. In Noor Muhammad v. Allah Ditta (PLD 2009 Supreme Court 198), the Supreme Court held that a co-owner is not entitled, without the consent of the other co-sharers, to exclude a portion of the joint property or select a particular part for partition, and that partition must be sought in respect of the property as a whole. The Lahore High Court applied the same principle in Ghulam Rasool v. Muhammad Khalid (2006 YLR 2289 Lahore), holding that a party seeking partition may not select the more valuable portions of a joint holding while leaving the remainder to other co-sharers, and again in Chaudhary Ghulam Abbas v. Barkat Ali (1999 YLR 2190 Lahore), where partial partition was held to be bad in law.

3. Prior Partition or Private Settlement

A suit will not lie in respect of property that has already been the subject of a formal partition or of a private settlement, commonly referred to as Khangi Taqseem. Proof of a private partition ordinarily requires production of an order of partition, or of a Roznamcha Waqiati or Tatimma recording delivery of possession. The Karachi High Court held in Irshad v. Ashiq Hussain (2007 PLD 421 Karachi) that a private arrangement of this nature carries the same sanctity as a lawful contract and should not be disturbed unless it is otherwise legally impermissible. Where no formal deed exists, or where it has been lost, the question of possession assumes particular significance, as recognised in Naveed Ahmad v. Iqbal Begum (2006 YLR 2341 Lahore).

4. Co-sharership

The plaintiff must establish that he is, in fact, a co-sharer in the property forming the subject of the suit. In Muhammad Ismail v. Ghulam Sarwar (2008 YLR 420 Lahore), it was held that the only manner in which a co-sharer may obtain possession of his share in an undivided property is by way of a suit for partition and separate possession. There is no limitation period applicable to such a claim; the Supreme Court held in Muhammad Rafiq (2004 SCMR 1036) that partition may be claimed by any joint owner at any time during the subsistence of joint ownership, provided his right has not been denied.

The Course of a Civil Partition Suit

Partition suits before the Civil Court proceed in two distinct stages.

The first stage concludes in a preliminary decree, or in dismissal where one of the defects described above is established. At this stage the court determines the question of jurisdiction, the co-sharership and entitlement of the parties, and, where the plaintiff's case is made out, the extent of each party's share in the joint property.

The second stage consists of final decree proceedings, commenced by an application from the decree-holder. The court appoints a local commission under Section 75 read with Order XXVI of the Code of Civil Procedure to determine the mode of partition. The commission inspects the property and reports on whether it is capable of division. Where the property cannot conveniently be divided, the commission instead assesses its market value, and the court orders its sale, with the proceeds distributed according to the determined shares. Where the property is capable of division, the commission proposes a mode of partition having regard to the parties' shares, their existing possession, and the relative value of different portions, so that each co-sharer receives an equitable allocation of constructed and unconstructed, valuable and less valuable, portions. The commission's report is subject to objection by the parties and to confirmation or rejection by the court; where rejected, a further commission is appointed. On confirmation, the court passes a final decree, following which the decree-holder may apply for execution to obtain actual possession.

Both the preliminary and final decrees are subject to appeal, revision or second appeal, and ultimately to the appellate jurisdiction of the Supreme Court under Article 185 of the Constitution.

The Cumulative Delay

The pendency of partition litigation before the courts of Pakistan remains substantial, and a fully contested suit, carried through every available forum, may reasonably be expected to take in the region. This figure represents the outer limit of a suit contested at every stage rather than the ordinary case, though it remains indicative of the scale of delay that afflicts this class of litigation.

A Proposal for Reform

The Supreme Court has, in other areas of litigation, issued procedural guidelines intended to reduce delay and eliminate recurring defects, as in Barkat Ali v. Muhammad Ihsan (2000 SCMR 556) concerning rent proceedings. A similar approach could usefully be adopted for partition suits, by requiring that a prescribed proforma be filed with every plaint at the time of institution, signed by both counsel and the plaintiff, confirming that the court has jurisdiction, that all co-sharers and necessary parties have been impleaded, that the suit relates to the whole of the joint property, that no prior formal or private partition has taken place, and that the plaintiff's co-sharership and, where ascertainable, his share, have been stated.

Useful Resources

• Peshawar High Court – Official Website
• Islamabad High Court – Official Website
• Supreme Court of Pakistan
• KPK District Courts Portal
• KPK Land Records Authority

For related matters, you may also want to read our guides on land and boundary disputes, partition suits in Pakistan, and inheritance laws in Pakistan.