P L D 1975 Supreme Court 9 (PLP)

Date of hearing: 19th September 1974. ANWARUL HAQ, J. In this case leave was granted to examine the following questions: (i) Whether a preliminary decree in a partition suit is a decree of which execution can be levied; (ii) Whether an auction-purchaser purchasing a property from a Com missioner of Partition, under orders of Court during the pendency of the partition suit, can take out execution for vacant possession; and (iii) Whether the auction-purchaser acquires any right at all until the final decree has been made in the partition suit. The relevant facts are that one Moledino (since deceased) filed a suit for partition of property bearing Survey No. 46 and situate in Napier Quarters, Karachi. A preliminary decree was passed on the 21st of July 1959 and a Commissioner was appointed to partition the property and to take account of the rents. The Commissioner reported that the property in question was not capable of partition by metes and bounds among such a large number of parties; and, therefore, it should be sold. Accordingly, on a joint application submitted by all the co-owners, including the present appellant Mirza Adam Khan, the Court ordered the sale of the property by public auction. The highest bid of Rs. 37,025 was offered by the respondent Muhammad Sultan. The same was accepted by the Court and the sale was confirmed on 3-3-1965, after an application made by the present appellant for setting aside the sale was dismissed. The necessary sale certificate was issued in favour of the respondent on 18-5-66. The auction-purchaser then filed an application under Order XXI, rule 95 of the Code of Civil Procedure for delivery of vacant possession of the first floor of the building which was in the occupation of the present appellant. It may be stated that the ground floor of the building consists of shops which are let out to tenants, whereas the second floor was already in the possession of the auction-purchaser. The respondent's application was rejected by the learned Civil Judge, by his order dated the 11th of August 1967, holding that the auction-purchaser was only entitled to have the constructive possession of the premises and not its vacant physical possession. He further observed that the sale in favour of the respondent was not complete in the absence of registration. Finally, the learned Civil Judge expressed a contradictory opinion as to the status of the present appellant. At one place in his judgment he stated that Mirza Adam Khan was a co-owner and not a tenant, whereas in the concluding portion of his order he observed that Mirza Adam Khan had been paying rent to the other co-owners, and, there fore, the auction-purchaser could eject him either by filing a regular suit or by approaching the Rent Controller. Aggrieved by this order of the learned Civil Judge the auction-purchaser moved a revision petition in the High Court which was accepted by a learned Single Judge, by his order dated the 25th of January 1972 on the view that the auction sale did not require registration by virtue of the provisions contained in section 2(d) of the Transfer of Property Act, 1882, read with section 17(2)(xii) of the Registration Act; and that Mirza Adam Khan was in possession of a part of the property as a co-owner and not as a tenant. He observed that "if one heir is in the exclusive possession of some property comprised in the estate before its division in excess of his share, he is liable to pay compensation to the other heirs for the use and occupation of the property to the extent of the excess. Being a co-owner of the property he cannot at the same time be said to be a tenant of the other heirs of the property in his occupation." The learned Judge in the High Court further held that rule 95 of Order XXI, C. P. C. was fully applicable to the case as by virtue of section 8 of the Partition Act, 1893, an order for sale made by the Court under section 2 of that Act was to be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure. Mr. A. K. Lakhani, the learned counsel for the appellant, has challenged the correctness of the order passed by the High Court mainly on the ground that the rules embodied in Order XXI of the Code of Civil Procedure do not apply in the matter of sales ordered in partition suits, as special rules have been framed in this behalf by the Sind Chief Court in pursuance of the provision contained in clause (b) of section 7 of the Partition Act, 1893. He has also contended that in any case the appellant is a tenant, his own share as co-owner being only 3/720 in the whole property, and, therefore, he could not be ejected except in accordance with the procedure prescribed under the West Pakistan Urban Rent Restriction Ordinance, 1959. In support of this last contention Mr. Lakhani has drawn our attention to the fact that before the filing of the partition suit the appellant was paying rent to one of the other co-owners, and since the appointment of a receiver by the trial Court he has been paying rent to the said official. According to Mr. Lakhani, even the Commissioner appointed for the partition of the property has assessed rent payable for the portion occupied by the appellant, thus showing that the appellant's status was that of a tenant and not of a co-owner. It will be seen that the contentions now raised by the learned counsel for the appellant do not embrace the question noticed in the order granting leave to appeal; on the contrary his submissions appear to us to proceed on the assumption that once the sale has become absolute in favour of the auction-purchaser he is entitled to the delivery of possession, but the mode of such delivery is to be regulated by the provisions of the Partition Act and not under the provisions contained in Order XXI of the Code. Of course, he has also raised an additional question as to the status of the appellant. In these circumstances we are not called upon to answer the questions formulated in the leave granting order. Turning now to the contentions raised by Mr. Lakhani, we find that clause (b) of section 7 of the Partition Act does indeed prescribe that when any property is directed to be sold under this Act the procedure to be A observed shall be as prescribed by the High Court from time to time by rules made in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees. Chapter XXII of the Sind Civil Court Rules, 1947, entitled "RULES UNDER THE PARTITION ACT, 1893", contains only Paragraph No. 443 which reads as under: "The provisions of rules 240 to 254 shall, so far as the same are applicable, apply to a sale under section 7 of the Partition Act, 1893: Provided that rule 246 shall not apply to the said sale and the Court may grant leave to any party to bid for and purchase the property or any part thereof on such terms as the Court thinks fit." It will be seen, therefore, that the procedure prescribed by the Chief Sind Court in the matter of sales ordered in partition suits is the same as prescribed by it for other sales in execution of decrees. Rules 240 to 254 contained in Chapter XIV of the Sind Civil Courts Rules deal with the method of conducting the Court sales, but they do not deal with the question of the delivery of possession of immovable property. As a result, it follows that the special procedure contemplated by section 7(b) of the Partition Act is confined only to the mode of conducting the sale but not to the mode of delivery once the sale has been completed For this purpose, we shall have to turn to the rules contained in the Sind Civil Courts Rules or the Code of Civil Procedure. Rules 255 and 256 of the Sind Civil Courts Rules merely refer to the mechanics of delivering possession under Order XXI, rule 35 or rule 95 of the Code, thus making it clear that in these matters the Court must have recourse to the relevant provisions of the Code. The same position also emerges from rule 7 of the Sind Civil Courts Rules which contemplates that "rules contained in the First Schedule to the Code shall so far as they are inconsistent with or contrary to these rules, be deemed to have been thereby altered or superseded". It is thus clear that in matters on which the special Rules framed under section 7(b) of the Partition Act, 1893, as well as the Sind Civil Courts Rules, 1947, are silent, the provi sions contained in the First Schedule to the Code shall apply. We agree with the view expressed by the learned Judge in the High Court that by virtue of section 8 of the Partition Act a sale ordered in a partition suit is a decree within the meaning of section 2 of the Code of Civil Procedure with the result that an order of sale could be executed in the manner prescribed in rule 95 of Order XXI of the Code. The sale in the present case having become absolute in favour of the auction-purchaser, he is entitled to the delivery of vacant possession as against the judgment-debtors, which term would include, in this case, all the co-owners who are parties to the partition suit. The appellant being a co-owner is under an obligation to deliver vacant possession in terms of rule 95 of Order XXI of the Code. Mr. Lakhani referred us to Thondam Annamali Mudali v. Tiruttani Rama sami Mudali and others A I R 1941 Mad. 161, in support of his contention that the stranger auction-purchaser is not a party to the suit and cannot, therefore, take advantage of the provisions contained in rule 95 aforesaid. We find, however, that the case relied upon by Mr. Lakhani is hardly of any advantage to him. It was held in that case that "a stranger auction-purchaser at a sale held in execution of a money decree and applying for possession against purchaser at a private sale is the representative of the judgment-debtor, and cannot apply for possession as against the judgment-debtor or a representative-in -interest under section 47 of the Code; on the contrary when the judgment debtor or any one at his instigation resists or obstructs the auction-purchaser the latter must proceed in accordance with the provisions of Order XXI, rule 97". It appears to us that this judgment clearly goes against Mr. Lakhani and supports the view that the delivery of possession to an auction-purchaser is to be regulated by the provisions contained in rules 95, 96 and 97 of Order XXI of the Code. Having found that the auction-purchaser is entitled to the delivery of vacant possession in terms of rule 95 of Order XXI of the Code of Civil Procedure, we proceed to consider whether the appellant's status in the property is that of a co-owner or of a tenant Relying on Muhammad Abdullah v. Abdul Jabbar P L D 1967 Lah. 1000, it is submitted by the learned counsel for the respondent that the status of the appellant is to be determined by the true nature of his tenure as a person who has inherited the property under the Muslim Law and not by the extraneous factors of paying rent to another co-owner or to the receiver, or the fact that the Commissioner appointed in the partition suit determined the rental value of the portion of the property occupied by the appellant. We are inclined to agree with this submission. We think that the High Court has rightly observed that on the death of a Muslim intestate his estate devolves upon his heirs who succeed to it in specific undivided shares in proportion to their inheritance, and each heir becomes the owner of a definite fraction of every part of the estate until partition takes place. A co-owner does not, therefore, become a tenant of the other owners, simply by being in possession of property in excess of his own share, and ho would, C therefore, be liable to pay compensation to the other co-owners for the excess occupied by him. In this view of the matter he does not become a tenant, and no question would arise of taking proceedings against him under the Rent Restriction Ordinance. In his position as co-owner and judgment debtor, he is liable to be dealt with under rule 95 of Order XXI. For the foregoing reasons, we are of the new that the High Court was right in deciding the matter in favour of the respondent. The present appeal fails and is accordingly dismissed with costs. K. B. A. Appeal dismissed.