P L D 1996 Lahore 154 (PLP)

The relevant facts giving rise to this petition filed under Article 199 of the Constitution are, that Dr. Rehmat Ali respondent filed a suit for partition of a house situated in Sargodha City, claming that he was shareholder to the extent of 7/36 share in this ownership of the property, on account of purchase of the share of Ghulam Sarwar co‑sharer, through registered sale‑deed dated 3‑10‑1992. Walayat Sarwar who is a defendant co‑sharer of the suit property, submitted an application under section 4 of the Partition Act, for directing Dr. Rehmat Ali plaintiff to transfer his share to her, because the property in question was a dwelling house belonging to an undivided family and he was a stranger to the, family. This application was dismissed by the learned trial Court on 11‑7‑1985. The revision petition filed by Walayat Sarwar was also dismissed by the learned District Judge vide order dated 20‑10‑1985, on taking the view that the property attained the character of commercial property as there are about 6 shops included in the property, which are rented out to different persons. This order of the learned District Judge has been impugned in the present Constitutional petition.

2. Learned counsel for the petitioner has contended that according to the plaint itself it is a dwelling house and merely because seven shops have been built on the. ground floor would not have the effect of changing the ,character of the property' from residential to commercial. Learned counsel further contended that there was no issue framed, as to whether the property has assumed the commercial character and, therefore, it could not be held that the property was commercial in nature. He has also submitted that initially the property was residential house and it could not be converted under the law to any other use without permission of the Collector of the Sargodha District, therefore, it would have to be treated as dwelling house for the purposes of the Partition Act. (Muhammad‑Aqil Mirza, J)

3. Before dealing with the legal aspect of the case, it will be profitable to find out as to the factual Constructional accommodation of the house in dispute. As per para. No.4 of the written statement it stands admitted that there are 6 shops and 3 cabins in the ground floor of the house, which were allegedly constructed by the defendant. There is on the record (vide Annexure R‑2 of the written statement), copy of the assessment register of the Taxation Department, for the year 1982‑83, which shows that the suit property has 7 shops and 3 rooms and it is described as residential house/shops. Ghulam Sarwar from whom Dr. Rehmat Ali plaintiff purchased the property is shown one of the owners of the property. Three rooms are shown to be in occupation of the owners while the shops are shown to be rented out to various tenants. It is, therefore, clear that this is an admitted position that the property has several shops on the ground floor, which are rented out to various tenants and the upper portion is in occupation of the owners.

4. Section 4 of the Partition Act reads as follows: "(1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it think fit and direct the sale of such share of such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in subsection (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall fellow the procedure prescribed by subsection (2) of the last foregoing section." To invoke the application of section 4 of the Partition Act the following conditions must exist:‑‑ (i) The property of which partition is sought should be a dwelling house owned by an undivided family. (ii) The share of a co‑owner should have been transferred to a person who was not member of the undivided family. (iii) , The suit for partition should have been filed by the stranger transferee. (iv) A member of the family being a shareholder in the property should undertake to buy the share of the stranger transferee. The first and foremost 'condition, therefore, is that the suit property should be a dwelling house. In the instant case only three rooms in the upper story are buy used for residential purposes whereas there are at least 7 shops in the ground floor, which are rented out. to various shopkeepers. Therefore, a question arises whether such a property which is not being predominantly used for the residential purpose by an undivided family can be said to be a dwelling house within the meaning of section 4 reproduced above. The purpose of section 4 was that on account of transfer of a share in the property from one of the co‑sharers a stranger should not enter the house as a co‑owner and disturb their privacy and family affinity. It must be noted that the right to purchase the share of a stranger has been given in respect of a dwelling house only, while such a right has not been granted in respect of other properties including shops, plots, industrial and commercial units etc. etc. Annexure R‑2 shows that Ghulam Sarwar was owner of the property including the shops, therefore, what he transferred to the plaintiff also includes the share in the shops. To my mind section 4 cannot be invoked in respect of properties which are not predominantly residential in character. Properties which are composite in nature as the suit property in this case is or other properties of commercial/industrial nature, do not fall within the purview of section 4, ibid. This section should be interpreted in such a way that no violence is made to the guarantees given to the citizens under the Constitution or the purpose for which the aforesaid provision of law was brought on the Statute Book. Our Constitution guarantees to every citizen the right to acquire, hold and dispose of the property in any part of Pakistan. This right is available to the citizens as a Fundamental Right under Article 23 of the Constitution, which is reproduced below‑‑‑ "Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest." The right to acquire, hold and dispose of the property is subject to the condition of any reasonable restrictions imposed by the law in the public interest. Where a person who has purchased the share of a co‑sharer of an undivided dwelling house and if another co‑sharer is allowed to purchase his share in the property, then he is deprived of his right to acquire and hold the property in Pakistan. His right to acquire and hold the property can be abridged only if to do so is in the public interest. In, respect of a residential dwelling house owned by undivided family the public interest is limited to ensure that the family privacy is not violated by the intrusion of a stranger in the family. In the instant case it has been found concurrently by two Courts below and with which finding I also agree, that the suit house is not a dwelling house. On the contrary, it is a composite property and the major portion consists of shops occupied by several tenants. Therefore, keeping in view the fundamental right aforesaid and the purpose underlying the provision contained in section 4 of the Act, it is clear that a property which is not mainly used for residential purpose does not attract the application of section 4 ibid. Before parting with the case it must be observed that Sargodha is a big city. The suit property was initially evacuee property and judicial notice can be taken of the fact that the. properties which were initially residential in character, have with the passage of time been converted into commercial properties in big cities. In the instant case, this presumption stands corroborated by the. written statement as also the record of the Taxation Department. The view taken by the learned District Judge can be reasonably taken in the circumstances of the case. The application moved by the petitioner under section 4 of the Act has been rightly refused by the Courts below. Resultantly, the Constitutional petition is dismissed but the parties are left to bear their own costs.

6. Mr. Naveed Shehar Yar, learned counsel for the petitioner submits that a direction be issued to the learned trial Court to decide the suit expeditiously, as the matter remained pending in this .Court for 10 years. The request is reasonable. Accordingly, it is directed that the learned trial Court shall decide the suit within the next six months, even if day‑to‑day proceedings have to be taken. AA./W‑175/L Petition dismissed.