P L D 2016 Peshawar 8 (PLP)

YAHYA AFRIDI, J.

Muhammad Ayaz and six others, the petitioners, through the instant revision petition have challenged the judgment and decree dated 3-7-2012 passed by Additional District Judge-II, Swabi, whereby the appeal of the present petitioners was dismissed and the judgment and decree dated 31-5-2011 passed by Civil Judge-IV, Swabi, was upheld.

2. The brief facts of the present case are that respondent No.1/plaintiff filed a suit against the petitioners/defendants for, inter alia, possession through partition of two houses (one house measuring 15 Marla ("house No.1") and the other measuring 3 Marla ("house No.2") situated inside Abadi Deh of Moza Menai, District Swabi and declaration that house No.1 was sold beyond the share of the sellers (respondents Nos.2 to 8) to the buyer (the present petitioner No.1, Muhammad Ayaz). As far as the parties are concerned, the trial Court has discussed the same very aptly in terms that: "In the light of above appreciation of evidence of both the parties, and after perusal of record, it is concluded that the suit houses were the ownership of Yar Muhammad son of Dost Muhammad, who died and Nawab, Said Khan sons, Fairoz and Shamroz sons of Ahmad became his legal heirs, Nawab died and Gulab Khan (predecessor of plaintiff and defendants Nos.1 to 8) defendant No.11 and predecessor of defendants Nos.9 and 10 namely Mst. Firoshan became as his legal heirs, Gulab Khan died and plaintiff and defendants Nos.1 to 8 are his legal heirs, while Said Khan died and defendants Nos.12 to 22 are his legal heirs, similarly Shamroz died and defendants Nos.23 to 25 are his legal heirs. According to record, suit house No.01 is now in possession of defendant No.26, and the same house has been transferred by defendants Nos.1 and 4 to 8 in favour of defendant No.26 through unregistered deed No.21 dated 3-6-2005 in lieu of Rs.9 lacs. In that deed i.e No.21 dated 3-6-2005, the reference of 4 other unregistered deeds have also been given, in which the defendants only produced two deeds i.e No.288 dated 3-2-2000 and deed No.1000 dated 15-5-2000, while the other two deeds i.e 2528 dated 25-8-1975 and deed No.91 dated 28-7-1999, have not been produced by the defendants, which also make doubtful the unregistered deed No.21. Furthermore, as per pedigree table the plaintiff is legal heir of Gulab Khan, Gulab Khan had three wives and from his first wife he had two children, one plaintiff and the other defendant No.2. The same pedigree table has also not been objected by the defendants." In brief, the parties other than petitioner No.1, are the legal heirs of Yar Muhammad, who owned houses Nos.1 and 2.

3. On filing of the plaint before the trial Court, the named defendants therein were summoned by the trial Court. The defendants Nos.1, 4 to 8 and 26 appeared and contested the suit by filing written statement, while defendants Nos.3, 12 to 14, 16 to 18, 20 to 24 submitted their cognovit in favour of plaintiff/respondent. From divergent pleadings of the parties, the trial Court framed the following issues: (1) Whether plaintiff has got cause of action? (2) Whether the plaintiff is estopped to sue? (3) Whether the defendant has got the ownership of the suit house from Mst. Gul Perveen, legal heir of Gulab vide deed No.21 dated 21-9-2005? (4) Whether defendants Nos.1 and 4 to 6 have wrongly sold the suit house No.1 to defendant No.26 and have sold more than their shares without the permission of the plaintiff and other legal heirs of Yar Muhammad? (5) Whether any partition of the suit houses has been made? (6) Whether plaintiff is entitled to the relief as prayed for? (7) Relief.

4. Both the parties produced their respective evidence before the trial Court. The learned trial Court after hearing the learned counsel for the parties, decreed the suit of the plaintiff against the defendants vide judgment and decree dated 31-5-2011.

5. The petitioners/defendants feeling aggrieved from the judgment and decree passed by the trial Court, filed appeal before the Appellate Court. The learned Additional District Judge-II, Swabi, after hearing the arguments of learned counsel for the parties, dismissed the appeal vide judgment and decree dated 3-7-2012. Hence, the instant Revision Petition.

6. The worthy counsel for the petitioners vehemently urged that the two Courts below have violated the principles embodied in Order XX, Rule 18(2) of Civil Procedure Code, 1908 ("CPC"); that decree for partial partition has been passed; and that the plaintiff-respondent is estopped by his conduct to seek the partition, when he himself was a witness to deed No.1000 dated 15-5-2000, whereby Faheem Gul had transferred his rights in House No.1 to Mst. Gul Parveen, who had in turn sold the same to Muhammad Ayaz, the present petitioner. The worthy counsel placed reliance on Razia Sultana's case 2004 CLC 668), Mahmood Khan's case (2004 CLC 1345) and Ghulam Rasool's case (2006 YLR 2289).

7. In rebuttal, the worthy counsel for the respondents vehemently argued that it is a competent suit for partition, as all the properties within the 'Abadi Deh' had been duly incorporated in the plaint and filed before the competent forum being the Civil Court; that the objection of the petitioners is misconceived because the property claiming to have been left out is in fact `Shamilat' land, which being agricultural could not have been incorporated in the suit for partition before the Civil Court, the competent forum for the said undivided property being the Revenue Court; and that even otherwise, no evidence was produced by the petitioners to show any property within the 'Abadi Deh' that had been left out in the plaint; that as far as the determination of the shares of the parties was concerned, the same, he urged be ascertained from the admitted pedigree table, which was not disputed by the parties before the trial Court or the Appellate Court, and that in addition, the worthy counsel referred to the order sheet of the Appellate Court dated 30-6-2012, wherein the petitioners had agreed to the shares in the pedigree table. He further contended that without conceding even if the matter is to be remanded for the determination of the respective shares of the parties, the same should be before the Appellate forum, where the parties had already made a statement and that too to the extent to call the Patwari Halqa or ADK for producing the 'Goshwara Malkiat' on the basis of the pedigree table admitted by the parties and that there is no need of recording any other evidence. The worthy counsel placed reliance on Qamar Sultan's case (2012 SCMR 965), Mst. Maqsooda's case (2004 YLR 1019), Muqadar's case (2008 CLC 43), and Jamaluddin's case (2012 CLC 1353).

8. Valuable arguments of learned counsel for the parties heard and record perused.

9. There is no cavil to the legal proposition that partition has to be sought for all the undivided immovable property, and partial partition thereof would not be competent. With this is another essential requirement that all the co-owners of the said undivided property are to be impleaded in the said suit for partition. The rationale behind these essential requirements is to safeguard all the co-owners from being discriminated and thus the entire corpus is placed in a common pool for the Court to ensure that each co-owner is allotted his share equitably depending on the value thereof, which would surely be dependent upon the area, location and the nature of the property. This basic principle was discussed in Chandi Shah's case (AIR 1930 Lahore 286), and followed by the superior Courts of our jurisdiction in Jan Muhammad's case (1993 SCMR 1463), Qazi Qaiser Parvez's case (2000 CLC 519) and finally in Ghulam Rasool's case (2006 YLR 2289), wherein the worthy Court reiterated the principle in terms that: "refusal to partition a part of joint holding has wisdom behind it because some parts of the joint holding may be of much more value, as compared to its other parts. Party opting to come for partition should not be permitted to pick and choose and to have share in valuable parts of the joint holdings by leaving out its part with lesser value. Each owner is owner of every inch of joint holding to the extent of his share and thus I am of the considered view that a part of joint holding cannot be permitted to be partitioned."

10. Once it is ensured that all the undivided immovable property has been included and also that all the co-owners have been impleaded in the suit, then the question of legal forum and jurisdiction would arise. Generally, we have two separate forums; the Revenue hierarchy under the West Pakistan Land Revenue Act, 1967 ("Act of 1967") and the Civil Court under the Partition Act, 1893.

11. Let us first see the forum of revenue hierarchy provided under the Act of 1967. In this regard, the jurisdiction and procedure for partition of undivided immovable property is vested in the Revenue hierarchy under the enabling provisions of sections 135 to 150 of the Act of 1967. What is important to note is that section 3 of the Act of 1967 determines the area coming within the purview and jurisdiction of the Revenue hierarchy. The said provision reads: "Section

3. Exclusion of certain land from operation of this Act. (1) Except so far as may be necessary for the record, recovery and administration of village-cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land revenue. (2) It shall be lawful for the Collector acting under the general or special orders of the Board of Revenue, to determine, for the purposes of this Act, what lands are included within the site of a town or village, and to fix and from time to time to vary the limits of the same, regard being had to all the subsisting rights of the land-owners." The aforementioned provision clearly provides that as far as non-applicability of Act of 1967 is concerned, it would extend to the area, which is neither within the Site of Village nor paying land revenue. It is also important to note that with time the appropriate Officer would alter the Site of Village and include the areas, which has with time become Abadi in the Mauza and accordingly the said area would be included and recorded within the red line of the Site of Village in the revenue record.

12. While in cases of undivided immovable property, which falls outside the express domain of the Revenue hierarchy as provided under section 3 of the Act of 1967, the jurisdiction for partition thereof would vest in the ordinary Civil Court, of competent jurisdiction and the partition proceedings would proceed under the provision of the Partition Act, 1893.

13. Now, to the facts of the present case, it is noted that the objection of the present petitioners/defendants that the suit of the present respondents/plaintiffs was not maintainable for it sought partial partition of the joint immovable property is not factually and legally correct; Firstly, House No.1 and House No.2 sought to be partitioned are admittedly situated within the Abadi Deh in Mauza Mainai, District Swabi. Hence, the Civil Court was the competent forum to adjudicate the partition proceedings. Secondly, the present petitioners/defendants, who had raised objection regarding partial partition of immovable joint property have been unable to point out any other joint immovable property within the Abadi Deh in the said Moza. The immovable undivided property, which was highlighted during the evidence was Shamilat Deh, being outside the Abadi Deh in the said Moza. The partition of said land would, thus, come within the purview of the enabling provisions of the Act of 1967 and the jurisdiction for partition of such land would ordinarily vest with the Revenue hierarchy, as jealously guarded under section 172(2) of the Act of 1967. In the circumstances, the present respondents/plaintiffs could not have included the land owned by parties in Shamilat Deh in their suit filed before the Civil Court. Thus, the objection of the present petitioners regarding the partial partition does not hold any legal ground.

14. What has irked this Court is that both the Courts below, while dealing with a suit for partition have accepted the prayer for partition but have not determined the respective rights of the parties. This is surely against the spirit and the procedure provided for passing a preliminary decree in cases relating to partition, as enumerated in Order XX, Rule 18 of C.P.C., which provides: "Rule-18. Decree in suit for partition of property or separate possession of a share therein.--Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, (1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54. (2) If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required." The aforementioned provision of Sub-Rule 2 is clear in its intent and direction to a trial Court to first determine the respective rights, of the parties, which would be recorded in the Preliminary Decree. This would ensure each party/co-owner to know exactly their rights, which would include their respective shares and if any improvement is made thereon.

15. Before parting with this judgment, it would be pertinent to note that in cases of partition of immovable property, which are outside the scope of the Act of 1967, and are governed under the provision of the Partition Act, 1893, other than agricultural land, the proceedings thereof entails the following stages; Stage No.I. Pleadings. A co-owner files a suit for partition of immovable property before a Court of competent civil jurisdiction, the said plaint should include all the immovable property and implead all the co-owners of the said undivided joint immovable property. Stage No. II. Preliminary Decree. The trial Court after seeking written statement of the other co-owners, frame issues, allow parties to record their pro and contra evidence and thereafter passes a Preliminary Decree determining the rights of each of the co-owners in the joint undivided immovable property as per the contemplation of Sub-Rule 2 of Rule 18 of Order 20 of C.P.C. Stage No.III. Final Decree. Any one of the parties to the original suit for partition whose rights have been determined by the trial Court as recorded in the Preliminary Decree therein may move an application for final partition to the trial Court within the contemplation of section 3 of the Partition Act, 1893. The trial Court after seeking the necessary evidence as to the nature of the property sought to be partitioned determine the mode of partition of the said property in the Final Decree, which would stipulate, inter alia, the actual delivery of possession to each co-owner of his share in the divided property or where the same is not physically divisible amongst the shareholders then each party is given his share in the auction proceeds of the divided property or any other arrangement, deemed appropriate in the circumstances of the case.

16. Now that this Court has come to the conclusion that the two Courts below have erred by not recording the respective rights of the parties, as mandated under Rule 18 of Order XX of C.P.C., the present case warrants a positive consideration for the remand thereof to the appropriate legal forum for redressal. Remanding the case to the appellate Court, would surely prejudice the parties as they would be deprived of a forum of appeal. However, at the same time, the findings of the two Courts below on the other issues so framed, are based on proper appreciation of facts and law.

17. Accordingly, for the reasons stated hereinabove, the impugned decisions of the two Courts below are set aside and case is remanded to the trial Court only for determining the rights of the parties, for which the trial Court is to record the statement of the ADK, who is to be called as Court witness with appropriate directions, as deemed appropriate by the trial Court for determining the rights of the petitioner in the disputed undivided property; House No.1 and House No.2. The parties are to appear before the trial Court on 20-4-2015. The trial Court is further directed to ensure that the matter is decided within three months from the date of receipt of record of the case. No order as to costs. AG/203/P Case remanded.