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Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision No-1106-P/2012.

JUDGMENT
Date of hearing……………27.03.2015.………………………….
Petitioner’s (Muhammad Ayaz etc) By Syed Sher Badshah Gillani, Advt
Respondent’s(Malik Zareef Khan) By Muhammad Hamayun Khan Advt

YAHYA AFRIDI, J:- Muhammad Ayaz and

six others, the petitioners, through the instant revision

petition have challenged the judgment and decree

dated 03.07.2012 passed by Additional District

Judge-II, Swabi, whereby the appeal of the present

petitioners was dismissed and the judgment and

decree dated 31.05.2011 passed by Civil Judge-IV,

Swabi, was upheld.

2. The brief facts of the present case are that

respondent No.1/plaintiff filed a suit against the

petitioners/defendants for, inter alia, possession

through partition of two houses ( one house measuring

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15 Marla (“house No.1”) and the other measuring 03

Marla (“house No.2”) situated inside Abadi Deh of

Moza Menai, District Swabi and declaration that

house No.1 was sold beyond the share of the sellers

(respondents No.2 to 8) to the buyer (the present

petitioner No.1, Muhammad Ayaz).

As far as the parties are concerned, the trial

Court has discussed the same very aptly in terms that:

“In the light of above appreciation of

evidence of both the parties, and after
perusal of record, it is concluded that the suit
houses were the ownership of Yar
Muhammad son of Dost Muhammad, who
died and Nawab, Said Khan sons, Fairoz
and Shamroz sons of Ahmad became his
legal heirs, Nawab died and Gulab Khan
(predecessor of plaintiff and defendants No.1
to 8) defendant No.11 and predecessor of
defendants No.9 and 10 namely Mst.
Firoshan became as his legal heirs, Gulab
Khan died and plaintiff and defendants No.1
to 8 are his legal heirs, while Said Khan died
and defendants No.12 to 22 are his legal
heirs, similarly Shamroz died and defendants
No.23 to 25 are his legal heirs.

According to record, suit house No.01

is now in possession of defendant No.26, and
the same house has been transferred by
defendant No.1 and 4 to 8 in favour of
defendant No.26 through unregistered deed
No.21d dated 3.6.2005 in lieu of Rs.09 lacs.
In that deed i.e No.21 dated 3.6.2005, the
reference of 04 other unregistered deeds
have also been given, in which the
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defendants only produced two deeds i.e

No.288 dated 3.2.2000 and deed No.1000
dated 15.5.2000, while the other two deeds i.e
2528 dated 25.8.1975 and deed No.91 dated
28.7.1999, have not been produced by the
defendants, which also make doubtful the
unregistered deed No.21.

Furthermore, as per pedigree table the

plaintiff is legal heir of Gulab Khan, Gulab
Khan had three wives and from his first wife
he had two children, one plaintiff and the
other defendant No.2. The same pedigree
table has also not been objected by the
defendants.”

In brief, the parties other than petitioner No.1,

are the legal heirs of Yar Muhammad, who owned

houses No.1 and 2.

3. On filing of the plaint before the trial Court,

the named defendants therein were summoned by the

trial Court. The defendants No.1,4 to 8 and 26

appeared and contested the suit by filing written

statement, while defendants No.3,12 to 14, 16 to 18,

20 to 24 submitted their cognovit in favour of

plaintiff/respondent. From divergent pleadings of the

parties, the trial Court framed the following issues:

1. Whether plaintiff has got cause of action?

2. Whether the plaintiff is estopped to sue?

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3. Whether the defendant has got the

ownership of the suit house from Mst. Gul
Perveen, legal heir of Gulab vide deed
No.21 dated 21.9.2005?

4. Whether defendant No.1 and 4 to 6 have

wrongly sold the suit house No.1 to
defendant No.26 and have sold more than
their shares without the permission of the
plaintiff and other legal heirs of Yar
Muhammad?

5. Whether any partition of the suit houses

has been made?

6. Whether plaintiff is entitled to the relief as

prayed for?

7. Relief.

4. Both the parties produced their respective

evidence before the trial Court. The learned trial Court

after hearing the learned counsel for the parties,

decreed the suit of the plaintiff against the defendants

vide judgment and decree dated 31.05.2011.

5. The petitioners/defendants feeling aggrieved

from the judgment and decree passed by the trial

Court, filed appeal before the Appellate Court. The

learned Additional District Judge-II, Swabi, after

hearing the arguments of learned counsel for the

parties, dismissed the appeal vide judgment and

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decree dated 03.07.2012. Hence, the instant Revision

Petition.

6. The worthy counsel for the petitioners

vehemently urged that the two Courts below have

violated the principles embodied in Order 20 Rule 18

(2) of Civil Procedure Code, 1908 (“CPC”); that

decree for partial partition has been passed; and that

the plaintiff-respondent is estopped by his conduct to

seek the partition, when he himself was a witness to

deed No.1000 dated 15.5.2000, whereby Faheem Gul

had transferred his rights in House No.1 to Mst. Gul

Parveen, who had in turn sold the same to Muhammad

Ayaz, the present petitioner. They worthy counsel

placed reliance on Razia Sultana’s case ( NLR 2004

Civil 574 ), Mahmood Khan’s case (2004 CLC 1345)

and Ghulam Rasool’s case (2006 YLR 2289).

7. In rebuttal, the worthy counsel for the

respondents vehemently argued that it is a competent

suit for partition, as all the properties within the

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‘Abadi Deh’ had been duly incorporated in the plaint

and filed before the competent forum being the Civil

Court; that the objection of the petitioners is

misconceived because the property claiming to have

been left out is in fact ‘Shamilat’ land, which being

agricultural could not have been incorporated in the

suit for partition before the Civil Court, the competent

forum for the said undivided property being the

Revenue Court; and that even otherwise, no evidence

was produced by the petitioners to show any property

within the ‘Abadi Deh’ that had been left out in the

plaint; that as far as the determination of the shares of

the parties was concerned, the same, he urged be

ascertained from the admitted pedigree table, which

was not disputed by the parties before the trial Court

or the Appellate Court, and that in addition, the

worthy counsel referred to the order sheet of the

Appellate Court dated 30.6.2012, wherein the

petitioners had agreed to the shares in the pedigree

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table. He further contended that without conceding

even if the matter is to be remanded for the

determination of the respective shares of the parties,

the same should be before the Appellate forum, where

the parties had already made a statement and that too

to the extent to call the Patwari Halqa or ADK for

producing the ‘Goshwara Malkiat’ on the basis of the

pedigree table admitted by the parties and that there is

no need of recording any other evidence. The worthy

counsel placed reliance on Qamar Sultan’s case

(2012 SCMR 965), Mst. Maqsooda’s case (2004 YLR

1019), Muqadar’s case (2008 CLC 43), and

Jamaluddin’s case (2012 CLC 1353).

8. Valuable arguments of learned counsel for the

parties heard and record perused.

9. There is no cavil to the legal proposition that

partition has to be sought for all the undivided

immovable property, and partial partition thereof

would not be competent. With this is another essential

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requirement that all the co-owners of the said

undivided property are to be impleaded in the said suit

for partition. The rationale behind these essential

requirements is to safeguard all the co-owners from

being discriminated and thus the entire corpus is

placed in a common pool for the Court to ensure that

each co-owner is allotted his share equitably

depending on the value thereof, which would surely

be dependent upon the area, location and the nature of

the property. This basic principle was discussed in

Chandi Shah’s case (AIR 1930 Lahore 286), and

followed by the superior Courts of our jurisdiction in

Jan Muhammad’s case (1993 SCMR 1463), Qazi

Qaiser Parvez’s case (2000 CLC 519) and finally in

Ghulam Rasool’s case (2006 YLR 2289), wherein the

worthy Court reiterated the principle in terms that:

“refusal to partition a part of joint

holding has wisdom behind it
because some parts of the joint
holding may be of much more
value, as compared to its other
parts. Party opting to come for
partition should not be permitted to
pick and choose and to have share
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in valuable parts of the joint

holdings by leaving out its part with
lesser value. Each owner is owner
of every inch of joint holding to the
extent of his share and thus I am of
the considered view that a part of
joint holding cannot be permitted to
be partitioned.”

10. Once it is ensured that all the undivided

immovable property has been included and also that

all the co-owners have been impleaded in the suit,

then the question of legal forum and jurisdiction

would arise. Generally, we have two separate

forums; the Revenue hierarchy under the West

Pakistan Land Revenue Act, 1967 (“Act of 1967”)

and the Civil Court under the Partition Act, 1893.

11. Let us first see the forum of revenue hierarchy

provided under the Act of 1967. In this regard, the

jurisdiction and procedure for partition of undivided

immovable property is vested in the Revenue

hierarchy under the enabling provisions of section

135 to 150 of the Act of 1967. What is important to

note is that section 3 of the Act of 1967 determines

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the area coming within the purview and jurisdiction

of the Revenue hierarchy. The said provision reads:

“Section 3. Exclusion of certain land from

operation of this Act.

(1) Except so far as may be necessary for

the record, recovery and administration of
village-cess, or for purposes of survey,
nothing in this Act applies to land which is
occupied as the site of a town or village, and
is not assessed to land revenue.

(2) It shall be lawful for the Collector

acting under the general or special orders of
the Board of Revenue, to determine, for the
purposes of this Act, what lands are included
within the site of a town or village, and to fix
and from time to time to vary the limits of the
same, regard being had to all the subsisting
rights of the land-owners.”

The aforementioned provision clearly

provides that as far as non-applicability of Act of

1967 is concerned, it would extend to the area,

which is neither within the Site of Village nor paying

land revenue. It is also important to note that with

time the appropriate Officer would alter the Site of

Village and include the areas, which has with time

become Abadi in the Mauza and accordingly the

said area would be included and recorded within the

red line of the Site of Village in the revenue record.

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12. While in cases of undivided immovable

property, which falls outside the express domain of

the Revenue hierarchy as provided under section 3

of the Act of 1967, the jurisdiction for partition

thereof would vest in the ordinary Civil Court, of

competent jurisdiction and the partition proceedings

would proceed under the provision of the Partition

Act, 1893.

13. Now, to the facts of the present case, it is

noted that the objection of the present

petitioners/defendants that the suit of the present

respondents/plaintiffs was not maintainable for it

sought partial partition of the joint immovable

property is not factually and legally correct;

Firstly, House No.1 and House No.2 sought to be

partitioned are admittedly situated within the Abadi

Deh in Mauza Mainai, District Swabi. Hence, the

Civil Court was the competent forum to adjudicate

the partition proceedings.

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Secondly, the present petitioners/defendants, who

had raised objection regarding partial partition of

immovable joint property have been unable to point

out any other joint immovable property within the

Abadi Deh in the said Moza. The immovable

undivided property, which was highlighted during

the evidence was Shamilat Deh, being outside the

Abadi Deh in the said Moza. The partition of said

land would, thus, come within the purview of the

enabling provisions of the Act of 1967 and the

jurisdiction for partition of such land would

ordinarily vest with the Revenue hierarchy, as

jealously guarded under section 172(2) of the Act of

1967. In the circumstances, the present

respondents/plaintiffs could not have included the

land owned by parties in Shamilat Deh in their suit

filed before the Civil Court. Thus, the objection of

the present petitioners regarding the partial partition

does not hold any legal ground.

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14. What has irked this Court is that both the

Courts below, while dealing with a suit for partition

have accepted the prayer for partition but have not

determined the respective rights of the parties. This

is surely against the spirit and the procedure

provided for passing a preliminary decree in cases

relating to partition, as enumerated in Order 20

Rule-18 of CPC, which provides:

“Rule-18. Decree in suit for partition of property or

separate possession of a share therein. Where the
Court passes a decree for the partition of property or
for the separate possession of a share therein, then,
(1) If and in so far as the decree relates to an estate
assessed to the payment of revenue to the
Government, the decree shall declare the rights
of the several parties interested in the property,
but shall direct such partition or separation to
be made by the Collector, or any gazetted
subordinate of the Collector debuted by him in
this behalf, in accordance with such declaration
and with the provisions of section 54.
(2) If and in so far as such decree relates to any
other immovable property or to movable
property, the Court may, if partition or
separation cannot be conveniently made without
further inquiry, pass a preliminary decree
declaring the rights of the several parties
interested in the property and giving such
further directions as may be required.”

The aforementioned provision of Sub-Rule 2

is clear in its intent and direction to a trial Court to

first determine the respective rights of the parties,

which would be recorded in the Preliminary Decree.

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This would ensure each party/co-owner to know

exactly their rights, which would include their

respective shares and if any improvement is made

thereon.

15. Before parting with this judgment, it would be

pertinent to note that in cases of partition of

immovable property, which are outside the scope of

the Act of 1967, and are governed under the

provision of the Partition Act, 1893, other than

agricultural land, the proceedings thereof entails the

following stages;

Stage No.I. Pleadings.

A co-owner files a suit for partition of

immovable property before a Court of
competent civil jurisdiction, the said plaint
should include all the immovable property
and implead all the co-owners of the said
undivided joint immovable property.

Stage No.II. Preliminary Decree.

The trial Court after seeking written

statement of the other co-owners, frame
issues, allow parties to record their pro and
contra evidence and thereafter passes a
Preliminary Decree determining the rights of
each of the co-owners in the joint undivided
immovable property as per the contemplation
of Sub-Rule 2 of Rule 18 of Order 20 of
CPC.
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Stage No.III. Final Decree.

Any one of the parties to the original suit for

partition whose rights have been determined
by the trial Court as recorded in the
Preliminary Decree therein may move an
application for final partition to the trial
Court within the contemplation of section 3
of the Partition Act, 1893. The trial Court
after seeking the necessary evidence as to the
nature of the property sought to be
partitioned determine the mode of partition
of the said property in the Final Decree,
which would stipulate, inter alia, the actual
delivery of possession to each co-owner of his
share in the divided property or where the
same is not physically divisible amongst the
shareholders then each party is given his
share in the auction proceeds of the divided
property or any other arrangement, deemed
appropriate in the circumstances of the case.

16. Now that this Court has come to the

conclusion that the two Courts below have erred by

not recording the respective rights of the parties, as

mandated under Rule-18 of Order 20 of CPC, the

present case warrants a positive consideration for the

remand thereof to the appropriate legal forum for

redressal. Remanding the case to the appellate

Court, would surely prejudice the parties as they

would be deprived of a forum of appeal. However,

at the same time, the findings of the two Courts

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below on the other issues so framed, are based on

proper appreciation of facts and law.

17. Accordingly, for the reasons stated

hereinabove, the impugned decisions of the two

Courts below are set aside and case is remanded to

the trial Court only for determining the rights of the

parties, for which the trial Court is to record the

statement of the ADK, who is to be called as Court

witness with appropriate directions, as deemed

appropriate by the trial Court for determining the

rights of the petitioner in the disputed undivided

property; House No.1 and House No.2.

The parties are to appear before the trial Court

on 20.04.2015. The trial Court is further directed to

ensure that the matter is decided within three months

from the date of receipt of record of the case.

No order as to costs.

Announced.
Dt.27/03/2015. JUDGE
(K.Ali)