' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, w4th the leave of the Court, has been directed against the judgment passed by the High Court on 1-3-2001, Whereby the writ petition filed by the appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, briefly stated, are that respondent No,4 and father of respondents Nos.5 to 12 moved an application before the Extra-Assistant Commissioner, Poonch on September, 13, 1988, regarding the partition of Khewat Nos.17, 18, 20 and 21 comprising Survey Nos.1429, 1433, 3235, 982, 1127, 1436, 1459, 1434, 1458, 3234, 3233, 1101, 1089, 1086, 966, 957, 963, 965, 967, 1137, 1182, 1409, 1411, 1412, 1246 and 1247, situate in Village Chowkiyan, Tehsil and District Pallandri. The Extra-Assistant Commissioner after necessary proceedings accepted the application. Being aggrieved by the order of Extra-Assistant Commissioner, the appellant filed an appeal before the Collector, District Poonch. The Collector dismissed the appeal. Feeling dissatisfied from the order of the ' Collector, the appellant filed a revision petition before the Revenue Commissioner who accepted the same. The respondent being aggrieved by the said decision of the Revenue Commissioner filed a review petition before the Board of Revenue which was accepted vide its order, dated 19-8-1996 and it set aside the order of Revenue Commissioner. The aforesaid order of Board of Revenue was challenged by the appellant by way of filing a writ petition in the High Court. The High Court vide the impugned order, dated 1-3-2001 has dismissed the writ petition. It is the aforesaid order of the High Court which is the subject of present appeal.
3. In support of appeal it was vehemently contended by Syed Muhammad Siddique Shah Bukhari, the learned counsel for the appellant, that the impugned order passed by the learned Member, Board of Revenue is liable to be set aside inter alia on the following grounds:--
(i) That the appellant filed a revision petition before the Revenue Commissioner against the order of Collector District, Poonch. The learned Revenue Commissioner accepted the revision petition of appellant and remanded the case back to the learned Extra-Assistant Commissioner, Poonch to decide the case as visualized under section 141 of the West Pakistan Land Revenue Act, 1967. This point was duly raised and argued during the course of arguments before the learned Judge and in support of the contention reliance was placed on a case reported as Ahmed Khan and 2 others v.
Member, Board of Revenue, N.-W.F.P., Peshawar and others PLD 1986 Pesh. 67 but the learned Judge in the High Court did not advert to the point nor discussed the above citation in the impugned judgment;
(ii) that the appellant in his objections before the Extra-Assistant Commissioner denied the ownership of respondents Nos.4 to 13 from the disputed land on the basis of adverse possession. It was also argued that the total ouster of respondents had been proved in the record on the basis of private partition that took place between the parties but the question of title was not decided either by the Extra-Assistant Commissioner under , section 141 of the West Pakistan Land Revenue Act, 1967 nor the matter was referred to the Civil Court to determine the title of the parties. The Extra-Assistant Commissioner failed to adopt the method as postulated under section 141 of the West Pakistan Land Revenue Act. So the appellant was not in a position to prove the adverse possession of the land in dispute before him;
(iii) that the observation recorded by the High Court that the possession of the co-sharers could not be claimed at adverse against the other co-sharers is also against the law. In order to substantiate his contention on behalf of appellant, reliance was placed on the case of Ali Haider Khan v. Muhammad Aziz Khan and others 1993 SCR 170 but the learned Judge failed to resolve the said point and even did not, discuss the said citation in the impugned judgment;
(iv) that Muhammad Yaqoob Khan, the father of respondents Nos.5 to 12, had already sold his share from the disputed land as a result of private partition, so neither he nor respondents Nos.5 to 12 could move an application for partition. Respondents Nos.4 to 13 have admitted this fact in sub- para. (g) of para.12 in their written statement. This point was raised and agitated during the course of arguments before the High Court but the impugned judgment is quite silent on this point. An affidavit on behalf of appellant was also placed on record in support of the assertion made above and also on the point that sub-paras. (a) and (c) have not been controverted from the opposite side and in this regard reliance was placed on the reported cases titled Ahmed Khan and 2 others v. Member, Board of Revenue, N.-W.F.P., Peshawar and others PLD 1986 Pesh. 67 and Ali Haider Khan v. Muhammad Aziz Khan and others 1993 SCR 170 but the learned Judge failed to record any finding in this regard;
(v) that the learned Revenue Commissioner remanded the case back to the Extra-Assistant Commissioner to decide it as provided under section' 141 of the West Pakistan Land Revenue Act vide his orders dated 15-1-1995, so the revision petition was incompetent before the Member, Board of Revenue as it was not a final order. Though this point was raised in the writ petition and was also argued and the point being purely a law point, the same was also not discussed in the impugned judgment; and
(vi) that respondents Nos.4 to 13 also did not file a suit for possession within the prescribed period of limitation so they were not entitled to get the possession of the land in dispute.
4. In reply Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondents, controverted the arguments raised by the learned counsel for the appellant. The learned counsel contended that the question of title has been decided by the Extra-Assistant Commissioner. Similarly the Collector has also dealt with the question of adverse possession raised by the learned counsel for the appellant. The Member, Board of Revenue also concurred with the findings recorded by the Extra- Assistant Commissioner and Collector, District Poonch. The learned counsel pressed into service the submission that the concurrent findings of fact recorded by the Extra-Assistant Commissioner and Collector of the District could not have been set aside by the Revenue Commissioner. Thus the Member, Board of Revenue committed no illegality in accepting the revision petition filed by the respondents. The learned counsel in support of his contentions placed reliance on Ali Haider Khan v. Sher Afzal Khan and others PLD 1983 SC (AJ&K) 5 and Sadiq Khan and others v. Rehabilitation Department and others 1992 SCR 132. Replying to the contention raised by the learned counsel for the appellant that the revision petition before the Member, Board of Revenue was not competent, the learned counsel for the respondents placed reliance on section 164 of the West Pakistan Land Revenue Act, 1967 which provides that the Board of Revenue may at any time on its own motion or on application made to it within 90 days of the passing of any order call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it. The learned counsel for respondents also cited Khair Din v. I.U. Khan, C.S.P., Member, Board of Revenue, West Pakistan and others PLD 1958 Lah 11 and Pakistan Electrical and Mechanical Instructions Ltd. v. Chairman, Industrial Relations Commission and another 1984 PLC (C.S.) 325 in support of his submissions. The learned counsel also contended that the appellant did not invoke the extraordinary jurisdiction of the High Court with clean hands who is usurper upon the land in dispute, therefore, it is settled principle of law that the writ could not be issued for miscarriage of justice and ill-gotten gains as being equitable relief.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the contention raised by the learned counsel for the appellant that in his objections before the Extra-Assistant Commissioner the appellant has denied the ownership of respondents Nos.4 to 13 from the disputed land, moreover his possession over the suit-land had become adverse in nature.
As the aforesaid question relates to the title of the suit-land, therefore, as required under section 141 of West Pakistan Land Revenue Act, 1967, it was enjoined upon the Extra-Assistant Commissioner either to determine the question of title himself or to refer it for determination to a Civil Court. For the proper appreciation of the proposition involved it is deemed expedient to reproduce section 141 of the West Pakistan Land Revenue Act, 1967 which reads as under:-- "141. Disposal of questions as to title in the property to be divided.--- (1) When there is a question as to title in any property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court.
(2) Where the Revenue Officer does not himself proceed to determine the question of title as a Civil Court, he may, for reasons to be recorded by him in this behalf, require a party specified by him to file a suit in a Civil Court, within such period not exceeding ninety days from the date of his order as he may fix, for obtaining a decision regarding the question.
(3)
(4) ......................................
(5) ...........................................................
' The above provision of the West Pakistan Land Revenue Act, 1967 shows that if a question of title arises in the property to be divided, the Revenue Officer may himself determine the question of title or refer the matter to a Civil Court for its determination but the learned Extra-Assistant Commissioner as well as the Collector and Board of Revenue failed to take into consideration the above point of vital importance. The learned counsel for the appellant has also contended, that he has also raised the plea in his objections that the father of respondents Nos.5 to 12 had already sold his share from the disputed land as a result of private partition so neither he nor respondents Nos.5 to 12 could move an application for partition. According to the learned counsel this allegation has been admitted by respondents Nos.4 to 13 in sub-para. (g) of para.12, but despite that the matter has not been referred to the Civil Court for the purpose of determining the title nor the Extra-Assistant Commissioner himself determined the title of the parties on the suit-land.
6. The main objection of the learned counsel for respondents, Mr. M. Tabassum Aftab Alvi, is to the effect as both the parties are co-sharers, therefore, the question of adverse possession would not arise in the instant case. His further contention is that the Extra-Assistant Commissioner, the Collector and the Board of Revenue have given their findings that both the parties are co-sharers, therefore, the question of their adverse possession would not, arise. It may be stated that the argument raised by the learned counsel for the respondents seems to be misconceived and based on mere assumptions. The law stands settled on the point that if a co-sharer in possession can prove his open and adverse possession for a period of more than 12 years to the total ouster of the other co-sharers, the co-sharer who is in possession, his possession shall be deemed to be adverse against the other co-sharers. In this regard reliance is placed on a case reported as Ali Haider Khan v. Muhammad Aziz Khan and others 1993 SCR 170, wherein it was observed as follows:- - "If ouster of a co-sharer is established as a denial of his title the possession would definitely be adverse to the co-sharer who is out of possession. There is no rule of law that possession of a co- sharer cannot be adverse to the other co-sharer in all cases and under all circumstances."
7. The point raised by the learned counsel for respondents also needs consideration as they have categorically alleged in their written statement that the father of respondents Nos.5 to 12 has already sold his share out of the disputed land as a result of private partition and if the appellant succeeds in establishing the above assertion, how would it affect the share of those who had already alienated their share. The question can also be decided and disposed by the Civil Court.
8. The learned counsel for respondents has vehemently urged that the concurrent findings of fact recorded by the Extra-Assistant Commissioner, the Collector and the Revenue Board could not be set aside by this Court unless there be misreading or non-reading of evidence. In reply to the aforesaid contention it would be suffice to say D that the Extra-Assistant Commissioner, the Collector as well as the Member, Board of Revenue did not attend to the crucial points involved in the case and the objections raised by the respondents. Therefore, it seems to be a clear case of misreading and non-reading of the objections raised by the respondents.
9. The learned counsel for the appellant, Syed Muhammad Siddique Shah Bukhari, also urged before us that the revision petition against the order of remand passed by the Revenue Commissioner was incompetent before the Member, Board of Revenue. After careful consideration this contention is found to have no substance because section 164 of the West Pakistan Land Revenue Act, 1967 gives wider powers to the Board of Revenue for exercising its revisional jurisdiction which reads as follows:-- "164. Revision.--- (1) The Board of Revenue, may, at any time, on its own motion, or on an application made to it within ninety days of the passing of an order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it."
' The learned counsel for the appellant in support of his contentions placed reliance on a case reported as Ahmed Khan and 2 others v. Member, Board of Revenue, N.-W.F.P., Peshawar and others PLD 1986 Pesh. 67, wherein it was observed that second review petition before the Board of Revenue was incompetent. There is no quarrel with the aforesaid proposition as the second review petition is not visualized under the provisions of the West Pakistan Land Revenue Act. However, in the instant case the learned Member, Board of Revenue did not exercise his revisional powers on the second review petition but it was the first review petition being filed by the respondents against the order of Revenue Commissioner. Therefore, the argument raised on behalf of the learned counsel for the appellant being devoid of any legal force is hereby repelled.
10. The learned counsel for the respondents submitted that the writ petition filed by appellants was rightly dismissed by the High Court as the jurisdiction being extraordinary in nature could not have been exercised in aid of injustice because the appellant has usurped upon the land of other co- sharers. We are afraid that we cannot subscribe to the view of the learned counsel for the respondents. It is not the question of usurpation of the land by the appellant as in law every co- sharer is deemed to be the owner of every piece and parcel of the land unless the same is regularly partitioned but the question involved in the instant case-is as to whether by mutual arrangement the parties have already partitioned their land or not and this question should also have been attended to by any of the Revenue Authorities.
11. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment of the High Court and remand the case back to the Extra-Assistant Commissioner who shall either himself resolve the question of title and other points referred to and discussed in the previous part of this judgment or send it to the Civil Court for its resolution. In case the matter is sent to Civil Court, after the resolution of disputed points, the Civil Court shall send its findings to the Extra-Assistant Commissioner who will proceed further according to law. In the circumstances of the case we pass no order as to costs.