2008 PLP 248 (CLC)

SYED HAMID ALI SHAH, J.

Land in dispute (measuring 10-00 Marlas) belonged to (late) Abdul Razzaq, who left behind Salamat Bibi and Salma Bibi (daughters) and Muhammad Maskeen alias Wakeel (son) as his legal heirs. The respondents filed a suit for partition, in which a preliminary decree dated 28-1-1999 was passed. It was urged before the trial Court that the property in dispute is not capable of partition, learned trial Court in response thereto observed in its order dated 28-1-1999 that the question, whether or not the land in dispute could be partitioned, would be decided at the time of final decree. Learned Court appointed Local Commissioner on 15-3-2004 who submitted his report on 19-4-2004, which reflects that the property is not capable of portioning. Learned Court passed the order for the auction of the property, which has now been assailed in this revision petition.

2. It is contended that the property cannot be put to auction unless the final decree is passed. Learned counsel submitted that parties had not applied to the Court for the sale of the property through auction, thus order of sale of the property was unwarranted. It was also contended that the Court proceeded to execute the decree without passing a final decree and such order is not sustainable under law.

3. Learned counsel for the respondents, on the other hand, has submitted that according to provisions of section 2 of the Partition Act, 1893, the Court can pass orders for auction of the joint property, if it is found that the property is indivisible. Learned counsel has further submitted that according to Order XX, rule 18(2), C.P.C. the Court after passing the preliminary decree, declaring the rights of several parties interested in the property, can give such further direction, as may be required. It was submitted that the Court was competent to pass order for auction of the property, even without passing the final decree. Learned counsel supported his contentions by placing reliance on the cases of Mst. Ilahi Noor and 4 others v. Muhammad Din PLD 1977 SC 634 and Mirza Adam Khan v. Muhammad Sultan PLD 1995 SC 9.

4. Heard learned counsel for the parties and perused the record.

5. Admittedly the parties did not dispute the report of Local Commission, which speaks of the fact that the property is indivisible. In case a property is indivisible between the shareholders, then the procedure laid down in Partition Act, 1893 for effecting partition is to be followed. The Court has to provide the shareholders, an opportunity to apply for leave to buy the property. An order for valuation of share of shares, is required under section 3, to be passed and price of shares is to be ascertained. Learned trial Court proceeded to auction the property without giving necessary and proper directions. The object of section 3 is to prevent the property to fall into the hands of third party, if that can be done in reasonable manner.

6. Section 2 of the Partition Act, 1893 is reproduced hereunder:

"

2. Power of Court to order sale instead of division in partition suits.

Whenever any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that by reason of the nature of the property to Which the suit relates, or of the number of shareholders therein, or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the share-holders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one majority or upwards, direct a sale of the property and a distribution of the proceeds." The conditions precedent for applicability of above provision of law, are that there must be finding that the division of the property cannot reasonably or conveniently be made; that sale of the property and distribution of the proceeds would be more beneficial for all the shareholders and that there must be a request for directing the sale of the property and a distribution of the proceeds. The right was conferred upon the shareholders to request the Court for sale of the property before the decree for partition. Bare perusal of section 2 of Act 1893 (ibid) reflects that request for sale can be made, where a decree for partition might have been made. Legislature has consciously used the phrase "where a decree for partition might have been made". Sale, according to provisions of section 2 (ibid), pertains to the cases, where decree might have been made. The above provision of law is not applicable to the case where the decree has been passed. Partition decree consists of two decrees so to say the preliminary decree and final decree. Once the preliminary decree is passed, the provisions of section 2 of the Partition Act, will not apply and the Court has to pass final decree. The Court, in such circumstances, will resort to the provisions of section 3 and in case of failure of any shareholder to apply for leave to buy the share, the property is liable to be auctioned.

7. For the foregoing, the impugned order suffers from legal infirmity cannot sustain and the same is set aside by allowing instant sustain and the same is set aside by allowing instant petition, with no order as to costs. S.A.K./F-36/L Revision accepted.