1. QALANDAR ALI KHAN, J. This revision petition by Mst. Aareefa alias Shikra is directed against the judgments / order of learned Civil Judge-III, Mansehra, whereby, suit of the petitioner / plaintiff for recovery of Rs.1,80,000/- against the respondent / defendant, Sultan, on the basis of agreement deed dated 12.06.2010, was dismissed, and also that of learned Additional District Judge-I, Mansehra, dated 05.11.2014, whereby, appeal of the petitioner was also dismissed. Additional District Judge-VI, Mansehra, dated 07.04.2005 in Appeal No.55/13, whereby, suit of respondent No.1 was decreed on acceptance of appeal filed by him and a preliminary decree for partition was granted in his favour till regular partition between the parties in respect of the disputed property, with further decree for compensation to the tune of Rs.8000/- for damage caused to the house in question.
2. 2- It appears from the revision petition that respondent No.1, Anwarzeb Khan had lodged a suit for possession of the house, described in the plaint, and also for recovery of Rs.8000/- on account of damage caused to the suit house. The latter prayer was added through subsequent amendment in the plaint. The suit was based on claim of respondent No.1 / plaintiff to the effect that the suit house fell to the share of Ghulam Ahmed Khan, father and predecessor of respondent No.1 / plaintiff, as a result of family partition between the said Ghulam Ahmed Khan and his brothers, where-after the house remained under occupation of a person, who vacated the house, whereupon, the house was locked by respondent No.1 / plaintiff. However, according to respondent No.1 / plaintiff, the house was occupied by the petitioners and respondents No.2 to 5 / defendants in the suit by breaking open the lock, hence, suit for possession and compensation for damage caused due to demolition of the suit house by the petitioners and respondents No.2 to 3- The suit was resisted by the petitioners by filing written statement wherein a number of objections were raised to the claim of respondent No.1 / plaintiff, including the main objection to the effect that the houses situated in village Pir Patta were in the joint ownership of respondent No.1 / plaintiff and petitioners / defendants No.5 to 9 in the suit, and the house in question was in possession of the petitioners since the time of their forefather, and that the house was in occupation of respondent No.3 / defendant No.2 in the suit, on lease. It was also claimed in the written statement that respondent No.1 / plaintiff was also in possession of another house in joint ownership of the parties, which was under occupation of one Khaibrey. Pleadings of the parties were reduced to a number of issues. After recording evidence of the parties, the suit was dismissed by the learned Civil Judge, Oghi, on 18.07.2002. However, appeal of respondent No.1 succeeded and while setting aside the judgment and decree of the learned trial Court, the appellate Court / Additional Distrtict Judge-VI, Mansehra, granted the impugned decree in favour of respondent No.1.
3. 4- I had the privilege of hearing exhaustive arguments of Syed Sajjad Hassan Shah, Advocate, Supreme Court of Pakistan, learned counsel for the petitioners and Mr. Muhammad Naeem Anwar Khan, Advocate, learned counsel for respondent No.1. Record also perused with their assistance.
4. 5- There is no dispute that two houses were inherited by the petitioners and respondent No.1 from their predecessor, Mir Zaman Khan, who was survived by four sons and three daughters. The names of his four sons are Mehmood Khan, Ghulam Ahmed Khan, Muhammad Afzal Khan and Rahimullah Khan. Petitioners are sons of Rahimullah Khan while respondent No.1 is son of Ghulam Ahmed Khan. Mir Zaman Khan was also survived by three widows. Likewise, Ghulam Ahmed Khan is survived by three sons and two daughters, Mehmood Khan is survived by two daughters while Rahimullah Khan is also survived by three daughters beside five sons, the petitioners. Respondent No.1 / plaintiff claimed ownership of the suit house on the basis of private partition between Ghulam Ahmed Khan, father and predecessor of respondent No.1, and his brothers, where-under, the house in question fell to the share of the said Ghulam Ahmed Khan, which remained in possession of respondent No.1 / plaintiff and wherefrom he was, allegedly, dispossessed after breaking open locks of the vacant house, resulting in filing of the suit by respondent No.1 / plaintiff.
5. The petitioners and respondents No.2 to 5 refuted the allegations of the respondent No.1 / plaintiff with regard to private partition among the predecessors-in-interest of the parties, and claimed to the contrary that property also comprising the house situated in village Peer Patta was still joint among the parties as co-owners. They alleged that one of the two houses was in possession of respondent No.1 / plaintiff wherein a person, namely, Khaibrey was residing.
6. 6- In view of nature of dispute between the parties and claim of respondent No.1 / plaintiff, the burden to prove private partition with respect to the suit house was on respondent No.1 / plaintiff, but there is nothing on record to substantiate his this allegation. Neither respondent No.1 / plaintiff (APW-1) nor his attorney, namely, Khurshid Ahmed Khan (PW-3) were witnesses to the partition, which, allegedly took place between Ghulam Ahmed Khan, father and predecessor of respondent No1 / plaintiff, and his brothers. Both APW-1 and PW-3 admitted that beside the house in question another house out of the inheritance of their predecessor, Mir Zaman Khan, was still in possession of respondent No.1 / plaintiff, while the suit house, which was allegedly also in possession of respondent No.1 / plaintiff, has been forcibly occupied by the petitioners and respondents No.2 to 5 after forcible dispossession of respondent No.1 / plaintiff therefrom. It is, indeed, strange to note that as a result of the so called private partition among the successors of original owner, both the houses were received by respondent No.1 / plaintiff as share of his father, Ghulam Ahmed Khan, and neither the other legal heirs of the original owner, Mir Zaman Khan, nor the remaining legal heirs of three brothers of Ghulam Ahmed Khan and their three sisters received any share out of the only two houses left behind by the original owner, Mir Zaman Khan. In such a situation, the claim of respondent No.1/ plaintiff, having become exclusive owner of the suit house, as a result of family partition, appears to be far fetched.
7. 7- Respondent No.1 / plaintiff, in his statement before the Court mentioned his age as 54/55 years and stated that the house was constructed 40/50 years ago, meaning thereby that he was hardly of school going age at the time of construction of the suit house, but in the same statement he stated that he was a College student at that time, showing how much worthy of credence his statement was?.
8. 8- Having narrated above facts about the case and evidence in respect thereto, there is hardly any doubt that the suit house and other legacy of predecessor of the parties, namely, Mir Zaman Khan, is still joint, as neither there has, admittedly, been any official partition, nor respondent No.1 / plaintiff could prove private partition in respect of the inheritance of the said Mir Zaman Khan.
9. 9- There are no two opinions that a co-sharer cannot seek eviction of the other co-sharer without partition of the joint property. If authorities are needed, one can have reference with advantage to the judgments reported as PLJ 1996 Peshawar 27 (D.I.Khan Bench), 2012 AC 778 (Supreme Court of AJK) and 1979 CLC 230.
10. 10- As pointed out above, there were, admittedly, other legal heirs of the original owner as well as predecessors of the parties and beside the said house, the original owner, Mir Zaman Khan, had another house and other landed property, therefore, neither suit for exclusive possession of one of the co-owners was maintainable to the exclusion of the other co-owners nor, for that matter, a suit for possession through partition was maintainable in view of the established principle of law reflected in the judgments reported as PLD 2009 Supreme Court 198 and 1999 SCM R 348.
11. 11- Notwithstanding the legal provision with regard to non-maintainability of suit for exclusive possession of one of the co-owners and in respect of a part of a joint property or partial partition, the learned appellate Court, on acceptance of appeal against the judgment / order dated 18.07.2002 of learned Civil Judge, Oghi, whereby suit of respondent No.1 / plaintiff was dismissed, granted a preliminary decree for partition in favour of respondent No.1 / plaintiff till regular partition between the parties, despite the fact that respondent No.1 / plaintiff had never prayed for partition of the suit house, rather he had claimed that he was owner in possession of the suit house as a result of private partition between his father Ghulam Ahmed Khan, and his brothers.
12. 12- In view of the above facts, the impugned judgment and decree of the learned appellate Court was not only result of misreading and non-reading of evidence available on record but also in excess of jurisdiction, as no prayer was ever made for partition of the suit house. It cannot be presumed, by any stretch of imagination, that the words preliminary decree of partition were inadvertently recorded in the impugned judgment of the learned appellate court, while keeping in view rest of the findings of the learned appellate court. Therefore, it is, indeed, a case calling for interference by this Court in its revisional jurisdiction, as judgment and decree of the learned appellate court is void ab-initio.
13. 13- Adverting to the question of limitation, once it is held that an order or judgment / decree is void ab-initio, no limitation runs against such a void order, especially when no limitation is prescribed for the revisional jurisdiction of the court under section 115 (1) of the Code of Civil Procedure, 1908, unlike such jurisdiction invoked by a person, which is required by law to be made within 90 days of the decision of the subordinate court under proviso added to section 115 of the Code of Civil Procedure, 1908 by Act VI of 1992 CPC (Amendment Act 1992 w.e.f. 24-05.1992).
14. 14- In such a case, the revision petition is treated as an information to correct errors of jurisdiction committed by subordinate court in view of the judgment of the August Supreme Court of Pakistan reported as PLD 2012 SC 400 and 2012 SCM R 1942.
15. 15- In this view of the matter, the controversy surrounding obtaining of copies of impugned judgment / decree of the appellate Court by the petitioners for institution of this revision petition would lose its significance for decision on merits of the revision petition. Moreover, an inquiry is being conducted into the role of concerned staff in the matter, which is still under way at the level of relevant quarter, and any finding / observation with regard to the same may tend to prejudice the ongoing proceedings.
16. 16- As a natural corollary of above discussion, the revision petition is accepted and while setting aside the impugned judgment and decree of learned appellate Court / Additional District Judge- VI, Mansehra, dated 07.04.2005, the judgment of learned Civil Judge, Oghi, dated 18.07.2002 is restored and suit of respondent No.1 / plaintiff stands dismissed. No order as to costs.