2026 PLP 941 (SCMR)

SHAHID WAHEED, J.

This petition seeks leave to appeal against the judgment issued on the 12th of March 2012, in which the Peshawar High Court dismissed the petitioner's application under Section 115 of the Code of Civil Procedure (C.P.C.), and upheld the judgments and decrees rendered by its two subordinate courts, which favoured the respondent No. l's claims.

2. This case represents a second round of litigation involving three brothers embroiled in a contentious dispute over the partition of the estate left behind by their deceased father, Mir Ahmad Shah. The petitioner asserts that the estate comprised four houses. Following their father's passing, the brothers reached a family settlement that allocated each brother one house. Consequently, each sibling has been the sole owner of his designated house for a long period. He further maintains that the fourth house, which remained undivided, is in his brother's possession. He claims not only to have built on the house he inherited but also to have expanded it by purchasing additional land with his own financial resources. The focal point of the litigation revolves around the house described in the plaint, referred to as the disputed house, which is currently in the possession of the petitioner.

3. In the first round of litigation, the other two brothers, Qalandar Khan and Daulat Khan who are the respondents in this petition filed a suit against the petitioner concerning the disputed house. Their claim sought a perpetual injunction. Their grievance centred around the allegation that the petitioner intended to undertake further construction upon the disputed house without reaching an agreement on its partition among the three siblings. This matter escalated to the High Court, where, after a thorough review of the evidence and the lower courts' findings, the court issued a judgment on the 10th of November 2005. The High Court noted that, while it was admitted that the petitioner had indeed built on the disputed house, there was uncertainty regarding his intentions: whether he intended to raise construction on ancestral land or on a purchased one. Consequently, the High Court concluded that the matters about the description of each of the houses, any prior partitions of the ancestral property, and the status of the additional land whether inherited or purchased would need to be determined once partition proceedings were initiated. Based on this determination, the High Court restrained all parties from interfering with the property's current condition, with a view to avert potential future disputes.

4. The present petition arises from a second suit initiated by Dowlat Khan, respondent No.1, seeking a decree for possession through partition of the disputed house. This suit was filed in pursuance of the judgment delivered on the 10th of November 2005 on the revision application (i.e. C.R. No. 130 of 2005). In this suit, the petitioner traversed the allegations by submitting a detailed written statement in which he firmly denied the respondent No.1 's claims. He reiterated all the defence arguments presented in the prior litigation. Following the exchange of pleadings, issues were framed, and evidence was led. After carefully considering the /presented evidence, the trial court found merit in respondent No.1 's claims and subsequently issued a preliminary decree in a judgment dated 11th of December 2009. The petitioner appealed against this preliminary decree but was unsuccessful. Undeterred, he then sought recourse to the High Court under Section 115, C.P.C., challenging the lower courts' decisions. He based his revision on several grounds, arguing that the entire estate consisted of four houses while respondent No.1 had opted to seek partition of the disputed house only. Additionally, he claimed that the findings from C.R. No. 130 of 2005 were overlooked. However, the High Court found the grounds presented by the petitioner to lack substantial merit, ultimately dismissing his application under Section 115, C.P.C. on 12th of March 2012, reiterating that respondent No.1 had the right to select any property from the estate for the purpose of partition. So, this petition.

5. After a thorough examination of the case records, we have noted numerous significant omissions throughout the proceedings. The suit concerns the partition of property, along with a request for separate possession of an individual share. Given this context, it was imperative that the trial court adhere to the procedural guidelines set out in Rule 18 of Order XX, C.P.C. when issuing a preliminary decree. Unfortunately, this essential procedure was overlooked. To better illustrate the nature of this oversight, it is beneficial to closely analyse the specific provisions outlined in Rule 18 of Order XX, C.P.C. which reads as follows: "

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 a decree relates to any other immovable property or to moveable 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."

6. Upon a close examination of the aforementioned provisions, it becomes evident that in cases where a decree is issued concerning a partition of property whether that property is immovable or movable (excluding property assessed for revenue payments to the Government) the Court possesses the authority to issue a preliminary decree. This decree is particularly applicable when the partition or separation of the property cannot be conveniently carried out without further inquiries. The preliminary decree declares the rights of the various parties interested in the property and provides additional directions that may be necessary for subsequent proceedings. It is important to understand that the partition suit encompasses different phases, each characterised by distinct types of decree. Initially, a preliminary decree is issued to ascertain and declare the shares of the parties; however, it does not effect a physical division of the property among the co-sharers at this stage. Following this, a final decree is issued after a thorough inquiry, in accordance with the specific directives outlined in the preliminary decree. In this sequenced approach, the determination of the parties' shares occurs during the preliminary decree phase, while the actual partition of the property is carried out in accordance with the final decree. In light of the provisions of Rule 18 of Order XX, C.P.C., an analysis of the preliminary decree issued by the trial Court reveals a significant oversight: the shares of the parties to the suit have not been specified or clarified. This procedural shortcoming went unnoticed by both the first appellate Court and the High Court during its review in its revisional jurisdiction. We hold the opinion that this oversight constitutes a material irregularity that undermines the validity of the preliminary decree awarded to respondent No. 1.

7. Despite the aforementioned points, several other critical omissions render the preliminary decree issued in this case fundamentally untenable. It is now well recognised that a suit for partial partition is not maintainable. A party choosing to /seek partition should not have the liberty to selectively choose and acquire a share in the more valuable aspects of the joint holdings while simultaneously excluding those portions of lesser value. Each co-owner possesses ownership rights over every inch of the joint holding corresponding to their share. Therefore, it is inappropriate for any part of the joint holding to be permitted for separate partition. This principle is rooted in the need to protect all co-owners from potential discrimination and inequity. As a result, the entire property corpus is aggregated into a common pool, overseen by the Court, which ensures that each co-owner receives their allocated share fairly, based on the relative value of the properties, taking into account their area, location, and nature. Upon reviewing the records in light of this fundamental principle, it becomes evident that the petitioner has consistently maintained, throughout the entire litigation process from the first round to the present second suit that has given rise to this petition that his late father owned four distinct properties, which were divided equally among his three sons through a familial partition. The High Court notably highlighted this aspect in its judgment dated 10th of November, 2005, rendered in the earlier suit filed jointly by the respondents. The High Court had explicitly stated that the matter relating to: (a) the detailed description of each property, (b) any familial partition concerning the ancestral estate, (c) the status of the disputed house, and (d) any improvements made to the said house would be determined at the stage when the partition proceedings were initiated. It is glaringly evident that none of these essential matters was considered, resulting in the trial Court allowing the partition to proceed solely for the disputed property that was in the petitioner's possession. Furthermore, the trial Court failed to take any steps to verify the family settlement or the status of the other properties identified by the petitioner in his written statement. Compounding this issue, the situation became even more alarming when the High Court, in its judgment, upheld the proceedings, reasoning that it was the prerogative of the plaintiff-respondent No.1 to seek partition of any portion of the total estate. This rationale clearly contravenes the precedents established in Chandi Shah v. Barbara Shaha and others (AIR 1930 Lahore 286) and Jan Muhammad and another v. Abdur Rashid and 5 others (1993 SCMR 1463). Each of these omissions leads us to conclude that the preliminary decree granted in favour of the plaintiff-respondent No.1 is not only marred by misinterpretation and oversight of the evidence but also reflects a misapplication of legal principles. Under these circumstances, it was incumbent upon the High Court to reverse the preliminary decree and remand the case for a comprehensive reassessment of all the aforementioned issues, but this did not occur. Consequently, we have determined that the judgment rendered by the High Court on 12th of March, 2012 is unsustainable.

8. In conclusion, this petition is converted into an appeal and allowed. Accordingly, the judgments and decrees issued by the Courts below are set aside, and the matter is referred back to the trial Court with a direction to decide the suit afresh in accordance with the law, taking into account the observations recorded by us hereinabove. There shall be no orders pertaining to costs. UN/S-13/SC Appeal allowed.