2004 PLP 668 (CLC)

Date of hearing: 13th October, 2003. This revision petition arises out of a partition suit filed by the respondents, seeking partition of joint holding measuring one Kanal, 2 Marlas wherein, the respondents claimed 7/11th share. The suit of the respondent was contested by the petitioner and the learned trial Court on 13-9-2001 passed a preliminary decree in favour of the respondents determining share of the parties in the joint holding. The petitioner aggrieved of the preliminary decree, dated 13-9-2001 filed an appeal before the learned Additional District Judge, Shakargarh but remained unsuccessful, as the same was dismissed on 2-1-2003.

3. A short factual -background of the case is that the petitioner (Razia Sultana) and Salma Begum, predecessor-in-interest of respondents Nos. 1 to 4 were the real sisters. The petitioner purchased land measuring 7 Marlas out of a joint holding from one Siraj-ul-Haq vide registered sale-deed, dated 5-10-1991. Salma Begum (predecessor-in-interest of the respondents) also purchased 7 Marlas from the same vendor through a separate sale-deed Exh.P.4, dated 5-10-1991. The total area of this joint holding was one Kanal and two Marlas. The remaining 8 Marlas is owned by one Sana Ullah, who was not impleaded as a party to the suit, filed by the respondents.

4. The learned counsel for the petitioner contends that a suit for partition of joint holding could not proceed unless and until all the co -owners were impleaded as party thereto. He further submits that although parties are in possession of portions of the joint holding according to their entitlement and there is also assertion that there had been some private partition, yet all the co-owners should have been impleaded in the suit by the respondents. He in this behalf relied on the cases of Haji Abdullah Khan and others v. Nisar Muhammad and others PLD 1965 SC 690, Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others 1986 CLC 1706 and Syed Mohsan Raza Bukhari and 4 others v. Syeda Azra Zenab Bukhari 1993 CLC 31.

4. The learned counsel for the respondents argues that there was a private partition between the parties whereunder they are in possession of parts of the joint property according to their entitlement and as such, impleadment of all the co-sharers was not necessary.

5. I have considered the arguments of the leaned counsel for the parties and have examined the record appended with this petition Exh.P.2 is the copy of register Haqdaran Zamin for the year 1992-93, which shows that Sana Ullah as a co-sharer has 4/11th share, whereas Salma Begun and Razia Sultana Begun daughters of Ali Ahmad are co-owners, to the extent of 7/11th share. This document coupled with copy or, mutation Exh.P. 1 attested in favour of Mst. Salma Begum, predecessor- in-interest of the respondents, clearly shows that Sana Ullah is a co- owner with the parties to this litigation and has a subsisting interest in the I joint property who undeniably was not impleaded as a party to the suit. A similar question fell for determination of this Court in the case of Syed Mohsan Raza Bokhari (supra) and it was held that in suit for partition each co-proprietor is allocated share in the property by dividing it and thus, is a necessary party. It otherwise sounds unreasonable that out of three co-owners, two may have partitioned of their choice, at the back of third co-sharer, thus, I hold that Sana Ullah co-sharer was a necessary and proper party to the suit in hand but has incorrectly not been impleaded by the respondents as a party to the suit and the decrees passed in his absence, by both the Courts below ire not sustainable.

6. The learned counsel for the respondents objects that no such objection was either taken in the written statement or was urged before the Courts below and thus, cannot be allowed to be raised in the revisional jurisdiction. I cannot see along him an eye to eye because, it is a defect apparent on the face of the record and it was the duty of the Courts below to advert to it, of their, own. Even otherwise, it is a law point whether a person who is admittedly a co-owner, is a necessary party to the proceedings or not and thus, it can be raised at any stage of the proceedings. My this view is supported by the judgment given by the Honourable Supreme Court of Pakistan in the case of Haji Abdullah Khan and others, noted above.

7. For what has been discussed above, I am constrained to hold that Sana Ullah being a co-owner in the property in question was a necessary and proper party and preliminary decrees passed by the two Courts below, in his absence, are unlawful, and thus, are liable to be set aside. I accordingly accept this revision petition, set aside the impugned decree; and remand back the case to the learned trial Court for its fresh trial, after impleading Sana Ullah co-sharer as a defendant to the suit.

8. Since, the dispute between the parties regarding partition of joint holding hinges since 1997, I direct the learned trial Court to conclude the proceedings expeditiously, preferably within a period of 6 months from the date of receipt of this judgment. Compliance shall be reported to the Deputy Registrar (Judicial) of this Court. No order as to cost. H.B.T./-277/L Case remanded.