IJAZ ANWAR, J.---Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have prayed for the following relief:- "It is, therefore, humbly prayed. that respondents may kindly be directed to declare the order dated 25.02.2015 of respondent No,1 as illegal, without lawful authority and ineffective upon the rights of petitioners by way of which second revision, petition of respondents Nos,2 to 13 was accepted and case was remanded to Deputy Commissioner, Dera Ismail Khan with the direction to decide the case afresh on merits in accordance with law. Any other remedy deemed appropriate in the given circumstances may also be granted".
2. The precise facts as narrated in this writ petition are that the petitioners moved two applications to the Deputy District Officer (Judicial), Paharpur, with the title of Iqbal Hussain Shah etc. v. Altaf Hussain Shah etc and Iqbal Hussain Shah etc. v. Munawar Hussain Shah etc.' for partition of land bearing Khata Nos,6 and 35, situated in Mauza Wanda Khaliq Shah, Tehsil Paharpur, District D.I.Khan. After conducting the prescribed proceedings, the commission submitted the report suggested the mode of partition, the report of commission was accepted vide order dated 13.7.2010. Feeling aggrieved, the respondents Nos,2 to 11 preferred appeal before the same forum, which was dismissed on 23.02.2011. This order was assailed before the District Officer Revenue/Collector, D.I.Khan, in two separate appeals, which too met the same fate vide order dated 18.4.2013 and appeals preferred there-against by the aggrieved parties before the Additional Commissioner, D.I. Khan were dismissed by the Commissioner, D.I.Khan vide order dated 17.7.2013.
Dissatisfied with the aforesaid order of the Commissioner, D.I.Khan, the aggrieved parties assailed the same in 2nd Revision before the Senior Member Board of Revenue, which were allowed vide impugned order dated 25.02.2015, pursuant thereto, orders of both the fora below were set aside, and the case was remanded to the Deputy Commissioner, D.I.Khan with the direction to decide the appeal afresh on merits and in accordance with law, hence, this writ petition.
3. The learned counsel for the petitioners argued that the learned Deputy District Officer Revenue, vide order dated 13.7.2010, after considering the objections and report of the commission, has confirmed the mode of partition; the respondents instead of filing appeal as required under Section 161 of the Land Revenue Act, 1967, filed appeal before the same forum on 25.8.2010, after a delay of about 12 days, while the other respondents have not filed any appeal in the prescribed period of limitation; that when the Deputy District Officer Revenue declared the appeal as not maintainable vide his order dated 23.02.2011, the original respondents filed appeal on 26.02.2011, while the other respondents and the non-appealing parties have also filed appeal after a considerable long time and beyond period of limitation. He argued that initially both the appeals were dismissed by the Collector, D.I.Khan vide order dated 18.4.2013, and the first revision also received the same fate when the Additional Commissioner dismissed both the revisions vide his order dated 17.7.2013. The 2nd revision filed before the Board of Revenue was allowed vide the impugned order dated 25.02.2015. Learned counsel argued that Section 162 of the Land Revenue Act, 1967, provide thirty days period of limitation for filing of appeal. He also argued that Section 14 of the Limitation Act is not applicable to the appeals before the Revenue hierarchy for the purpose of condonation of delay for approaching the wrong forum. Learned counsel argued that instead of filing the same memo of appeal, filed initially before the wrong forum, fresh appeal were fired and therefore, having approached wrong forum under a wrong advice, are not entitled to condonation of delay under the law. He placed reliance on 2015 M LD 405, PLD 2016 [Peshawar] 49, 2015 CLC 14 and 2015 YLR 788.
4. Learned counsel representing the respondents Nos,2 to 13, argued that injustice has been done to co-owners in the mode and manner of private partition. The petitioners were illegally benefited and were given Nehri agriculture land despite the fact that they never remained in its possession.
Learned counsel tried to distinguish the judgments relied upon by the learned counsel for petitioner, and argued that those judgments were rendered in cases filed under Section 9 of the Civil Procedure Code, while in the instant case there is a self-contained mode provided under the Land Revenue Act of 1967. He referred to Section 167 of the Land Revenue Act, and argued that the provisions of Limitation Act, 1908, have been made applicable. Learned counsel referred to section 23 of the Limitation Act, and argued that since the answering replying respondents are co-sharers and still in possession of the property under partition, they have a continuous cause of action and the time limitation, in strict sense, is not applicable to their case. Learned counsel also referred to section 179 of the Land Revenue Act, 1967 to contend that the Board of Revenue, being the apex body in the revenue hierarchy, has ample power to pass any order it think fit while hearing revision against the orders of revenue authorities, besides finality has been attached to such order. Learned counsel also referred to Section 8 of the Board of Revenue Act, 1957, and contended that the petitioners were having alternate remedy of filing review before the Board of Revenue therefore, writ petition is not maintainable. Learned counsel referred to the judgment of Supreme Court reported in 1986 SCM R 962, and argued that no limitation runs against a void order.
5. Arguments heard and record perused.
6. Perusal of the record reveals that one set of the petitioners filed application for partition of Khata No,6 situated in the revenue estate of Mauza Khaliq Shah, Tehsil Paharpur, District D.I.Khan, while another set of the petitioners filed separate application for partition in Khata No,35 situated in the same revenue estate of Mauza Khaliq Shah, Tehsil Paharpur, District D.I. Khan. Vide order dated 13.7.2010, the mode of partition suggested by the local commission was accepted and direction was issued for the attestation of mutation to this effect. It is also admitted that partition mutation No, 1269 was got attested on 27.7.2010.- The respondents, instead of filing appeal before the higher forum, submitted appeal before the same authority and it was only on 23.02.2011, when the said appeal was disposed of with the permission to the respondents to file appeal before the proper forum. The Deputy District Officer (Judicial), Paharpur, was required to have returned the appeal for presentation before the proper forum, but for reasons best known to him, he kept the same for almost six months. The request for condonation of delay was not accepted by the Collector as well as by the Additional Commissioner and the cause shown for the condonation of delay by the respondents was not considered as sufficient within the meaning of Section 5 of the Limitation Act, 1908. The Board of Revenue has, however, accepted the second revision vide impugned order while placing reliance on the case of Mst. Bas Khana and others v. Muhammad Raees Khan and others (PLD 2005 [Peshawar] 214), and considered the grounds of delay as sufficient, wherein it is also held that the act of the Court shall not prejudice any person. In the case of Abdullah and others v.
Muhammad Haroon and others (2002 CLC 1419 [Karachi]), it is held that order passed by Revenue Officer under Chapter 13 of the West Pakistan Land Revenue Act, 1967 or under sections 7 and 8 of the West Pakistan Board of Revenue Act, 1957, is to be deemed as a judicial order for all intent and purposes and cannot be deemed to be an act or order of the officers of the Government as referred to in Article 14 of the Limitation Act, 1908.
7. It is advantageous to refer that the Board of Revenue was constituted under the West Pakistan Board of Revenue Act, 1957 (The West Pakistan Act IX of 1956). Under Section 7 of the Board of Revenue Act, 1957, finality has been attached to the orders of the Board of Revenue passed while hearing a revision. Similarly, under section 179 of the Land Revenue Act, the supervisory, administrative order and judicial order passed by the Board of Revenue were given finality. For the purpose of convenience, it is reproduced below:-- "179 Effect of finality of orders. Wherever in this Act it is provided that a decision or order shall be final, it shall be deemed to mean that no appeal lies from such decision or order; but nothing herein shall be construed as precluding the Board of Revenue from modifying, reversing or setting aside any such decision or order under the provisions of Section 164".
8. The wording of the section 179 are clear enough to suggest that the Board of Revenue, being apex body in the revenue hierarchy, has been empowered for correcting any order or decision while exercising powers under Section 164 of the Land Revenue Act. The judgment relied upon by the learned counsel for the petitioners regarding inapplicability of section 14 of the Limitation Act to the appeal are considered, however, they are distinguishable as those cases relate to the appeals filed under the civil law or certain special laws, while in the instant case, there is self-contained Section 167 in the Land Revenue Act, 1967 whereby the whole Limitation Act is made applicable. It is reproduced for ready reference:- "S. 167. ---Computation of period of limited under this Chapter. In the computation of the period of an appeal from, or an application for the review or revision of an order under this Act, the limitation therefor shall be governed by the provisions of the Limitation Act, 1908 (Act IX of 1908)".
9. In the case of Syed Lal Hussain Shah v. Lal Muhammad and 5 others (2005 CLC 1076 [Supreme Court AJ&K], it is held that: "(d) West Pakistan Land Revenue Act (XVII of 1967)--- ----S. 167---Limitation Act (IX of 1908), Preamble---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court---Applicability of Limitation Act, 1908 in revenue matters---Provisions of S.167 of West Pakistan Land Revenue Act, 1967 had unequivocally provided that in computation of period for an appeal from or an application for the review or revision of an order under the said Act, Limitation thereof would be governed by Limitation Act, 1908--- There being no specific exclusion of any of provisions of Limitation Act, 1908 would not apply in the matters arising under West Pakistan Land Revenue Act, 1967, was repelled being incorrect".
10. Learned counsel for the petitioners referred to certain facts of the case, however, it would not be appropriate to discuss those facts while hearing constitutional petition. Similarly, the Board of Revenue has only condoned the delay and set aside the orders of the lower forums and remanded the matter to the Deputy District Officer, D.I.Khan for decision afresh and to decide the appeals on merit and in accordance with law, so all the legal objections would the available and can be raised by both the parties before the Deputy Commissioner hearing the appeals.
11. This Court is conscious of the fact that usually partition cases are delayed one way or the other, similar is the situation here as the application for partition was filed in the year 2007, therefore, it is expected that the appeal pending before the Deputy Commissioner/Collector shall be decided expeditiously, but not later than three months in any case.
12. For the reasons stated above, no legal error or jurisdictional defect is pointed out in the order of the Board of Revenue. This petition, being misconceived, is dismissed.