1990 PLP 693 (SCMR)

Rana Muhammad Sarwar and Muhammad Idrecs, Advocates Supreme Court instructed by S. lnayat Hussain, Advocate‑on‑Record for Petitioners. Nemo for Respondents Nos.1 and

2. Ch. Nabi Ahmad Cheema, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents Nos.3 to

6. Date of hearing: 3rd June, 1989. JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against the order of the Lahore High Court Lahore dated 6‑10‑85 whereby writ petition of the petitioners was dismissed. Briefly the facts are that the house in dispute located on G.T. Road, Lahore constructed on 8 Kanals of land was subject to long‑drawn dispute between the parties. The matter came up to the High Court in the form of Writ Petition No.2798‑R of 1962. Eventually the matter was resolved through a compromise to the effect that the said house be transferred to both the sides who would own it in equal shares. It was further agreed that the said house be disposed of as soon as practicable and the contesting parties should share the proceeds equally. Factually the position is that the major portion of the House in dispute is in possession of the petitioners whereas a small portion is in possession of the contesting respondents. In any case a suit for partition was filed of the disputed property. The Senior Civil Judge Lahore directed its partition but on appeal of the petitioners the decree was set aside. The second appeal before the High Court was likewise dismissed with the observation that an application may be made before the trial Court that instead of selling the house by open auction the same be sold to any of the share‑holders who wanted to avail of the provisions of the Partition Act. Thereafter the petitioners moved an application for sale of the share of the respondents to them in the said property as it is indivisible. It was then contended on their behalf that it should be disposed of through a limited auction and the sale proceeds be distributed equally between the parties. But the parties did not agree about the value of their respective shares. 1n that view of the matter the Senior Civil Judge directed that the property in dispute be put to public auction and the sale proceeds be divided equally between the parties. The revision of the petitioners was dismissed by the District Judge. Thereafter their writ petition challenging the aforesaid orders was dismissed by the High Court. Hence the present petition. 1t was argued by learned counsel for the petitioners that since the preliminary decree was passed by the Senior Civil Judge directing partition of the disputed property, partition should have taken place and the property dispute should have not been put to public auction. We have heard learned counsel at some length. Had the parties arrived at some arrangement, the dispute could have been resolved. The problem is that major portion of the property is in possession of the petitioners and only a small portion is in possession of the respondents. However, apart from the extent of their possession the house stood transferred to both the sides that they will own it in equal shares. The need for disposal of the property according to the compromise arrived at in 1966 between the parties also implied that the property was indivisible and that on sale the two sides could share the proceeds equally. No feasible agreement could be worked out and it was in this background that public auction was ordered. The petitioners had been allowed to participate in the auction and they can purchase the share of the other side. Since this is the position in our considered opinion no interference is called for. The petition is therefore dismissed. M.A.K./1‑92/S Order accordingly.