' MIAN BURHANUDDIN KHAN, J. -The petitioner, Mst. Bibi Jana, is a CO-owner in the village Tehkal Bala and co-sharer in the `Shamilat' lands of the same village, known as 'Mushtarika Maira'.
2. According to her statement of facts contained in the petition, she was in exclusive possession of land measuring 34 kanals 4 marlas, bearing Khasra No, 166 situate in the `Shamilat of Maira Mushtarika' since long vide jamabandi of the year 1960-61, marked 'A' : that she was in possession of this 34 kanals, 4 marlas which is less than her share in the "Shamilat"; that Gul Akbar, respondent No, 4, was a tenant under her and was cultivating the land in question since long, copies of Khasra Girdawaris from Kharif, 66 to Rabi, 72, Annex. 'B' ; that after the promulgation of M. L. R. 115, Arbab Muhammad Ashraf Khan, respondent No, 3 who was in possession of more than the admissible area. i,e, in terms of P. I. Us. 4850, which he had to surrender under the Land Reforms according to the finding of respondent No, 1 dated 15-4-72, copy marked 'C', surrendered the excess land belonging to him measuring about 88 kanals, 4 marlas out of his share in the `Shamilat' of Maira Mushtarika, Tehkal Bala. As the entire `Shamilat' was a joint holding of all the proprietors of the village, therefore, the resumed area of 88 kanals, 4 marlas had to be separated through a partition proceedings. It is alleged that respondent No, 2 in absence of all the owners except Arbab Muhammad Ashraf Khan, respondent No,
3. Started an ex parte partition proceedings and as a result thereof part of the petitioner's land bearing Khasra No, 166, which was in her exclusive possession as a co-sharer, was resumed. It was done by the Revenue Staff concerned ostensibly at the instance of respondent No, 4 in order to deprive the petitioner of her right to a specific portion of the land and the benefit, copy of the partition proceedings alongwith the order dated 30-4-73 is placed on record marked 'D'.
3. The petitioner now by this Constitutional petition assails the partition proceedings dated 30-4- 1973 and the Mutation No, 180 attested on 1-6-1973 and No, 181 attested on 8-12-1973, transferring the title of the petitioner's land in the 'Shamilat' to respondent No, 4, to be without jurisdiction and without lawful authority.
4. Learned counsel for the petitioner contended that the partition proceedings were carried out in the absence of the petitioner without following the procedure laid down in section 137 of the West Pakistan Land Revenue Act, 1967 (West Pakistan Act No, XVII of 1967) ; that according to this section the Revenue Officer, on receiving the application under section 135 shall, if it is in order, and not against the provisions of the West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No, 64) and not open to objection on the face of it, fix a day for the hearing thereof, and- "(a) cause notice of the application and of the day so fixed to be served on such of the recorded co-sharers as have not joined in the application; and
4. If the Revenue Officer does not reject the application under section 139, he shall ascertain the questions, if any, in dispute between any of the persons interested, distinguishing between-
(a) questions as to title in the property of which partition is sought ; and
(b) questions as to the property to be divided or the mode of making the partition."
5. A perusal of Annex `.13' would show that no notice was served on any of the co-sharers in the `Shamilat' and that even Arbab Muhammad Ashraf Khan, respondent No, 3, was not present when the partition proceedings were started, and it is also evident from these proceedings that the total area of `Shamilat Maira Mushtarika' comes to 3986 in which the declarant is owner of 63/2810 share, measuring 88 kanals, 4 marlas ;, and that without making any reference to the possession of the petitioner it was ordered that out of Khasra Nos. 166/1194 and 118/188 kanals, 4 marlas, share of the declarant Arbab Muhammad Ashraf Khan, be resumed. Thus the very order of partition was against the principle of natural justice and the provisions of the Revenue Act, referred to above.
And where giving of prior notice of a pending action or proceedings is required by statute or by the rules framed under a statute, failure to serve notices on necessary parties immediately affected will enable that party successively to impugned the validity of the proceedings and unless, perhaps, the party has suffered no detriment, or has, obstructed or evaded service of notice.
6. Learned counsel further contended that against the order of partition, Annex. 'D', the petitioner had sought a review of the said order before respondent No, 1, Deputy Land Commissioner, Peshawar but the same was rejected vide order dated 7-6-77 on the ground that the case was referred to the Land Commissioner for obtaining permission for review. The Land Commissioner returned the file without passing any such order by making a reference to the Land Commissioner's Letter No, 1743/IC dated 7-9-1967 and directed to decide the case in accordance with the instructions laid down therein ; that the letter clearly lays down that the Chief Land Commissioner, N.-W. F. P. Has been pleased to order that no sanction to review a case be accorded as the powers of review have already been withdrawn. Thus, the learned counsel argued that there is no laches on the part of the petitioner as the review application was rejected in the year 1977.
7. Learned counsel for the respondent, however, raised preliminary objections to the maintainability of the petition on the ground of non-impleadment of Provincial Government and the Land Commissioner, who are necessary parties to the proceedings as the land resumed now vests in the Provincial Government which has been transferred to respondent No, 4 according to the provisions of M. L. R.
115. And secondly, that the petitioner has not availed of the other remedies provided under the law by filing an appeal against the order of the Deputy Land Commissioner, respondent No, 1, hence the petition is incompetent.
8. We have considered this question but do not agree with the learned counsel for respondent No, 4 for the reason that the land has been wrongly resumed without any proper notice to the petitioner.
And when the basic order is without lawful authority the entire structure built thereon falls to the ground, i,e, any other order confirming the order without jurisdiction would also be without any legal sanctity. Thus, we accept this writ petition and sent back the case to the authority concerned for holding proper partition of the 'Shamilat', keeping in view the `Hissadari' possession of the petitioner. No order as to costs.