2015 PLP 1749 (YLR)

ABDUS SATTAR ASGHAR, J.

Petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to impugn the order dated 23-12-2013 passed by learned Civil Judge Mandi Baha-ud-Din whereby sale of the suit property through open auction has been ordered. It also assails the judgment dated 28-6-2014 passed by learned Additional District Judge Mandi Baha-ud-Din whereby the civil revision filed by the petitioners has been dismissed.

2. Succinctly facts leading to this writ petition are that Abdul Sattar/respondent No.1 real brother of the petitioners being a co-sharer in residential portion of the suit property i.e. Chobara filed a suit for possession through partition against the petitioners. Respondent's co-sharership was established during the course of evidence and consequently learned trial court vide judgment dated 28-10-2011 passed preliminary decree in favour of the respondent to the extent of respective shares of the parties and a local commission was appointed with a direction to visit the suit property and to report as to whether the same was divisible or not and if it was divisible then to assess the mode of division otherwise to assess the market value of the suit property. Local Commission in his report dated 30-12-2011 opined that the suit property was indivisible and assessed that market value of the suit property was Rs.25,00,000 . He further opined that if the price of the share of Abdul Sattar respondent is given to him the matter can be settled. Respondent objected to the valuation of the suit property as assessed by the local commission. During personal appearance of the parties before the learned trial court respondent offered that he was ready to purchase the suit property for a sum of Rs.50,00,000 but the offer was not accepted by the petitioners. Consequently learned trial court was constrained to put the suit property into auction vide order dated 23-12-2013. Petitioners challenged the said order through revision petition which was dismissed by the learned Additional District Judge Mandi Baha-ud-Din vide judgment dated 28-6-2014. Being aggrieved of the above said order and judgment petitioners have lodged the instant writ petition.

3. It is argued by learned counsel for the petitioners that at one stage respondent had filed an objection petition against the report of the local commission which was later on withdrawn therefore report of the local commission has attained finality and that learned trial court erred in law and facts while directing the sale of the joint property through the impugned order dated 23-12-2013 maintained by the learned revisional court vide judgment dated 28-6-2014 which is untenable and liable to set aside.

4. Arguments heard. Record perused.

5. There is nothing on the record to show that respondent Abdul Sattar had ever acceded to the valuation of the joint property as assessed by the local commission. Learned trial court in the impugned order has categorically mentioned that respondent No.1 did not agree to the value of the suit property as assessed by the local commission i.e. Rs.25,00,000 rather he offered to purchase the same for a sum of Rs.50,00,000 but the petitioners did not agree to his offer. It is an established principle that where the property is not capable of convenient division the court has inherent jurisdiction to adopt such other means as may be equitable including sale thereof. The order of sale is to be executed as a decree and in the manner as provided under Order XXI of the Code of Civil Procedure, 1908. In the attending circumstances of this case in view of the disagreement between the parties on the valuation of the joint property the learned trial court lawfully exercised the jurisdiction through the impugned order for putting the joint property into sale through open auction in terms of section 2 of the Partition Act, 1893 read with Order XX Rule 18(2) of the Code of Civil Procedure, 1908 so that the sale proceed be distributed amongst all the co-sharers in the specified proportion. Needless to say that petitioners have a right to apply to the learned trial court for leave to purchase the respondent's share which may be determined by the court in terms of Section 3 of the Partition Act, 1893 if solicited. Reliance is made upon Akram Maquim Ansari (represented by heirs) and 3 others v. Mst. Asghari Begum and another (PLD 1971 Karachi 763) and Malik Taj Din and others v. Malik Ashiq Hussain and others (NLR 1993 AC (Civil) 554).

6. In view of the above I do not find any jurisdictional error or legal infirmity in the impugned order and judgment passed by learned courts below.

7. For the above reasons this writ petition having no merit is dismissed in limine. AG/A-166/L Petition dismissed in limine.