SHAH NAWAZ KHAN, C. J.-A large area consisting of numerous Khasras numbers which was the Shamilat of village Surezai Payan, Tehsil, Peshawar was partitioned by the Revenue Officers. Some of the present petitioners had applied for partition and all the recorded owners were impleaded as respondents. The land was accordingly partitioned and various shares were allotted to the different owners.
2. Being dissatisfied with the mode of partition and also on the ground that they had no notice of the partition proceedings, the present petitioners Mian Inayatur Rehman, Mian Hidayatur Rehman and their sister Mst. Shamsul Huda lodged an appeal with the Collector of Peshawar District on 1-8- 1979 and on the same date they filed another appeal in the Court of Additional Commissioner, Peshawar Division, Peshawar. They took the plea that in the first instance the total Shaimilat area measuring about 11,486 Kanals 4 Marlas was partitioned in the absence of the appellants and without serving any notice on them, and secondly, that the mutation relating to the mode of partition was also fictitiously and collusively entered and attested on 3-7-1979.
3. The petitioners (about 103 in number) and respondents Nos. 4 to 6, residents of Surezai Payan, Tehsil and District Peshawar, are the land owners in that village and. Each one of them is a shareholder, in the Shamilat-e-Deh. In 1963 a part of the land comprising Shamilat-e--Deh was partitioned among the petitioners and other shareholders but a portion of the said Shamilat was left out of partition treated as "Kharij Az Taqseem". Petitioner No. 1 along with others then moved an application for the partition of the land (Shamilat-e-Deh) which had early been treated as "Kharij Az Taqseem" in 1963. The area of this land was 11,486 Kanals and 7 Marlas. All the villagers participated in the proceedings. Respondents Nos. 4 to 6 have stated that, "they were not represented as they had no notice in those proceedings". The Revenue Officer ultimately prepared "Tariqa Taqseem" in the shape of Naqsha "Jeem" as specified in the Land Revenue Act. Copies of the proceedings were issued and all concerned were given due notice. This "Tariqa Taqseem" in the shape of Naqsha "Jeem" was approved by the concerned Revenue Officer on 27-9-1978 and the Revenue Officer passed an order under section 142 of the Land Revenue Act approving the partition of the land in question on that date.
4. Respondents Nos. 4 to 6 claiming that they were never parties in those proceedings before the Revenue Officer, did not file any appeal against the aforementioned preparation of Tariqa Taqseem, under section 142(2) i.e. Within the statutory period of 30 days. Needless to add that no revision or review petition was filed against the aforesaid decision and the same was given effect to in the Revenue Record in due course.
5. In the appeal before the Collector of Peshawar District (Deputy Commissioner Peshawar) which they filed on 1-8-1979, they challenged the mode of partition passed by the Collector on 27-9-1978 and prayed that the same be set aside. They also lodged on the same day a similar appeal before the Commissioner, Peshawar Division (Additional Commissioner, Peshawar Division). The Additional Commissioner, Peshawar took an initiative on the appeal of present respondents Nos. 4 to 6 and ultimately vide his decision dated 24-10-1979 he treated that appeal as a revision petition and he accepted the same and set aside the aforementioned order dated 27-9-1978.
6. The petitioners have now come up to this Court through the present writ petition wherein they have challenged the impugned decision of the Additional Commissioner, Peshawar dated 24-10- 1979, whereby the latter had set aside the mode of partition proposed and consented on 27-9-1978.
7. In the first place the writ petitioners have challenged the order of the Additional Commissioner on the ground that whereas in the partition proceedings more than one hundred persons had .Participated and they were the owner-co-sharers in which the mode of partition was proposed and sanctioned and every owner was allotted a separate share which they took into possession thereafter, the respondents Nos. 4 to 6 in their appeal before the Collector of Peshawar, District and the Additional Commissioner, Peshawar arrayed only two persons, namely, Saeedullah Jan and Asadullah Jan sons of late Mian Shakirullah Jan as respondents omitting all other owners-co- sharers. Saeedullah Jan and Asadullah Jan are incidentally the maternal uncle's sons of the three appellants. It was pointed out on behalf of the petitioners that the whole proceedings have been set aside by the Additional Commissioner but the rest of the owners-co-sharers were not heard in the appeal/revision petition. Iii fact they were never made a party. In section 164 of the West Pakistan Land Revenue Act, it is provided, that a Commissioner or Collector may, at any time, of his own motion or on an application made to him within ninety days of the passing of any order, call for the record of any case pending before or disposed of, by any Revenue Officer under his control.
It will be appreciated that in the instant case the learned Additional Commissioner, Peshawar, had not suo motu treated the appeal as a revision petition, but it was on the request of the petitioners (present respondents) that this appeal was treated as a revision petition. It is, therefore obvious that in such a case the request should have been made by the present respondents to the Additional Commissioner within ninety days of the passing of the order in question. Proviso to section 164 of the West Pakistan Land Revenue Act makes the position all the more clear and it is provided that "No order (of revision) shall be passed under this section (section 164), reversing or modifying any proceedings or order of a subordinate Revenue Officer affecting any persons without giving such person an opportunity of being heard. It will be appreciated that in a case of partition if large number of share holders are not consulted either as to method, effect and sanction in a partition proceeding and the possession of many is disturbed against their wishes and certain other procedural irregularities are committed owing to the dishonest conduct of the Revenue Officer and where no appeal against the method of partition is filed, the Commissioner may exercise his suo Motu jurisdiction in revising the method of partition, but as it may be seen it has not so happened. In this case, the appeal challenging the mode of partition was obviously time-barred. Moreover, when the appeal before the District Collector was filed, who had the jurisdiction to decide it, then the question of making an effort to file another appeal before the Additional Commissioner or even a revision petition before him should not arise, as we see the appeal which was submitted before the District Collector never came up for discussion before that forum and it was later filed because the Additional Commissioner had given his decision in an appeal which was later converted into a revision petition at the request of the appellants.
8. Partition cases are not more an exception to the rule as under the old law the limitation for an appeal to the Commissioner is sixty days. In view of section 164 of the West Pakistan Land Revenue Act, the period of limitation for the revision has thus been fixed at ninety days if initiated at the instance of a party to the proceedings, as it has happened in the instant case. Moreover, the Board of Revenue or the Commissioner will, not exercise his power of revision where the party has another remedy open to him. The power of the Commissioner under the Land Revenue Act in the matter of revision is there but the question would arise, when such powers should be used and when it is found that the period of limita--tion for an appeal has expired then it should be most rigorously scrutinized in light of the precedent which would be set up if the application is e admitted..
Undoubtedly there is no time limit for suo Motu revision which, as indicated above, was not the case. In a Peshawar case reported as Muhammad Aslam Khan and 9 others v. Federal Land Commission (PLD 1976 Pesh. 66), it was held that a revision petition is not entertainable, when an application by an aggrieved party is made after sixty days of the date 'of the impugned order.
9. Undoubtedly in the main petition the mother of the present respon--dents was a party but during the proceedings of the partition the present respondents were brought on record and the order-sheet would show that on some occasions Mian Hidayatur Rehman respondent had been appearing before the Revenue Officer not only for himself but as representative of his sister also. In any case in the partition proceedings in which hundreds of co-owners and co-sharers were involved, the revision petition having been heard against only two respondents could not be considered as correct because all the other co-sharers and co-owners who had accepted the mode of partition and the subsequent mutations also as correct and had also taken possession of their respective shares as allotted to them, were not made parties in the appeal/revision and they had not been heard nor given any notice of the appeal or the revision petition. It would thus show that. The Additional Commissioner while setting aside the mode of partition and the mutations attested thereafter, obviously exceeded his jurisdiction against the other co-owners co-sharers who had not been made a party. Saeedullah Jan and Assadullah Jan respondents in the appeal later converted into revision petition are closely related to the appellants and even their confession in the appeal in that judgment should have not affected the rights and interests of those who had not been made parties in the appeal/revision petition. The learned Additional Commissioner, Peshawar Division who was mindful of the fact when it was pointed out before him that Mian Hidayatur Rehman, till the date of his judgment considered and declared as appellant, had duly attended the partition proceedings, did not give any finding specifically on this question but held that "I would like to observe that the appellants, who were co-sharers in the land under partition were neither made party to the partition proceedings nor they were properly served." In making this observation, the learned Additional Commissioner ignored the true facts available on record. He further concluded that, "Before sanctioning the partition proceedings the learned Collector also failed to give any notice to all the co-sharers to consider their objections if any to the partition. But he did not care to get these co-sharers impleaded in the appeal before him or to hear them, to know, if his observation was correct".
10. The Additional Commissioner, Peshawar in his parawise comments in para. No. 3, has said that "It is correct that no appeal/revision or review was filed against the order of the Collector dated 27- 9-1978 within the time limit." This forecloses the attempt of the appellants/petitioners because their main objection was against the mode of partition, about which, the order of the Collector is dated 27-9-1978, but they did not file any appeal/revision or review against that order within the prescribed time limit. In answer to para. No. 4 of the writ petition, the Additional, Commissioner stated that "No such application had been filed by respondents Nos. 4 to 6 in his Court as stated in para. No. 4". In para. No. 4 of the writ petition the present petitioners had stated that "Respondents Nos. 4 to 6 filed application both before respondent No. 1 as well as Deputy Commissioner/Collector Peshawar simultaneously on the same grounds seeking therein that the order of partition passed by the Collector on 27-9-1978 be set aside and the effect given to the same in the revenue record be cancelled." The Additional Commissioner in his parawise comments in answer to Para. No. 4 of the writ petition has clarified the position. He states that, "in fact an appeal was filed in this Court on 1-8-1979 with the prayer that the order dated 3-7-1979 passed on Mutation No. 6859 along with the entire partition proceedings. May be set aside." It is in respect of that para. Of the writ petition wherein it is stated that in fact no appeal/revision had been filed by the present respondents Nos. 4 to 6 against the order passed in partition proceedings by the Collector on 27-9-1978, before the present appeal was filed on 1-8-1979, indicating therein that no appeal against the order of the mode of partition was submitted by the present respondents Nos. 4 to 6 within the prescribed time.
In his parawise comments in answer to para. No. 6, the Additional Commissioner has admitted that the present petitioners (about 103 in number) were not a party before his Court nor any notice was given to them but he has added that "The case has been remanded to the Collector only for fresh decision".
11. As indicated earlier the grievances of the present respondents Nos. 4 to 6 have been that they had been given land other than the portion which is in their occupation in the partition proceedings and further that some land which was included in the earlier partition had not been properly ultilized and accounted for to the advantage of the present respondents Nos. 4 to 6 in the later partition. In both these matters obviously they want to enforce their claim against some specified persons out of the co-sharers but the whole mode of partition could not be set aside and fresh proceedings could not be ordered to the disadvantage of hundreds of those who were not made a party and against whom the present respondents Nos. 4 to 6 did not have any grievance or cause to enforce. It is, therefore, obvious that the cancellation of the entire mode of partition and the mutation attested thereafter is obviously wrong. In this writ petition the petitioners are the people who may not like to join any issue with the present respondents No 4 to 6, but they have also suffered because of the wrong decision given by the Additional Commissioner.
12. It will be appreciated that if it is held that the prayer of respondents Nos. 4 to 6 regarding the setting aside of the mode of partition sanctioned by the Revenue Officer on 27-9-1978 cannot be granted on the ground that in that case, the appeal or revision petition of the respondents Nos. 4 to 6 as the case may be, was time barred then their prayer to get attesta--tion of Mutation No. 6859 on 3-7-1,979 cancelled, will be unfruitful rather meaningless because the mutation had to be entered and attested strictly in accordance with the mode of partition as ordered by the Revenue Officer, for it could not be otherwise.
13. In these circumstances we are of the view that the impugned order of the Additional Commissioner was illegal and was without jurisdic--tion and prayer of the present writ petitioners to get that decision cancelled and set aside is acceptable. We, therefore, accept this writ petition and declare that, since the petitioners were not a party before respondent No. 1 in the appeal/revision nor any notice was given to them, therefore, the decision given by the Additional Commissioner, by which the entire parti--tion proceedings were set aside which had earlier been settled as back as in September, 1978, is a nullity in the eyes of law being adverse to the principle of audi alteram parten. As no appeal had been decided, there--fore, the respondent No. 1 could not treat the appeal as a revision petition. The respondents Nos. 4 to 6 had filed the appeal much after the stipulated time was over. As indicated above, Mian Hidayatur Rehman had remained a party to the partition proceedings, therefore, it could not be stated that the present respondents Nos. 4 to 6 were not aware of the partition proceedings. The respondent No. 2 thus exceeded his jurisdiction by upsetting the entire scheme of partition, which bad been settled long ago after mutual consent and deliberations among the co-sharers.
14. The respondents Nos. 4 to 6 did not proceed with the appeal which they had filed before the Deputy Commissioner/Collector of Peshawar District which was obviously time barred and who had the jurisdiction to make a decision in that appeal. The impugned order of the Additional Commissioner, Peshawar was, therefore, illegal and without jurisdiction and the same is not sustainable, hence liable to be quashed.