1975 PLP 330 (SCMR)

Appellant No. 1 Pir Mohammad: ‑/11/‑ 7 1/5 Appellant No. 2 Imam Bux: ‑/‑/‑ 4 4/5 Respondents No. 2 to 5: ‑/4/‑ Partition by metes and bounds was, however, not carried out until the appellants received a notice dated the 4th of October 1968 from the Mukhtialkar of Karachi informing them that the demarcation and survey of the land will be carried out on 11‑10‑1968. The appellants objected that in view of the provisions contained in Paragraph 23 of Martial Law Regulation 64 the partition of the joint holding was not permissible as its area was below the area of a subsistence holding prescribed by the Regulation. The objection was, however, overruled by the Collector. The appellants thereupon filed a writ petition before the7karachi Bench of the former High Court of West Pakistan on the 24th of October 1968, but the same was dismissed in limine the next day by a Division Bench on the ground that the Martial Law Regulation in question could not affect the decree passed five years before its promulgation. The joint holding was then partitioned by the Collector on 25‑10‑1968, and since then the parties have been in possession of their respective shares. Leave to appeal was granted by this Court on 15‑1‑1969 in the following words:‑ "Apart from the question of jurisdiction involved in the case it requires consideration whether the suit‑land remained as joint holding after the shares of the ‑ parties were defined in the decree of the Chief Court and directions for its partition were given therein." At the hearing of the appeal, the question of jurisdiction of the civil Court to execute the decree was not raised by the learned counsel for the appellants, who confined his arguments to the effect of Paragraph 23 of Martial Law Regulation 64 promulgated on the 7th of February 1959, I.e., after the decree had been passed but before it was executed by the Collector on 25‑10‑1968. The learned counsel submitted that the mere passing of the decree for partition by the Sind Chief court did not have the effect of altering the nature of the holding, which continued‑ to be joint until its partition by metes and bounds was carried out on the ground on the 25th of October 1968, with the necessary consequence that the partition was hit by the prohibition contained in Paragraph 23 of the Regulation. Learned counsel further drew our attention to Paragraph 3 of the Regulation which provides that the Regulation shall have effect notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority etc. On behalf of the respondents, it was contended that the holding ceased to be a joint holding on the passing of the decree for partition, as the same was passed with consent of the parties and their shares in the land were specified; that in any case a special provision had been made by the Land Commission for execution of certain decrees; and that Deb Thano not being in the Federal area, the land in dispute ' was more than a subsistence holding and could be partitioned without being hit by the provisions of Paragraph 23 of the Regulation. Learned council further submitted that the joint holding having been partitioned as long ago as the 25th of October 1968, and the parties having assumed separate possession of the respective shares, it was not a fit case for this Court to pass any operative order even if the legal position be found to be against the respondents. There can be little doubt that the land in dispute continued to be a joint holding until its partition was actually carried out on the ground by metes and bounds on the 25th of October 1968. It is true that in the decree passed by the Sind Chief Court on 1‑12‑1954 shares of the parties were specified, on the basis of the admissions made by them, but such specifica tion could not alter the nature of the holding. In fact, it is common knowledge that shares of the co‑sharers are generally specified in the revenue record in case of joint holdings. Such holdings do not, however, cease to be joint simply because a decree for partition has been passed, as it is possible that the parties may not get the decree executed. This position becomes amply clear when we refer to section 54 of the Code of Civil Procedure which provides that:‑ "Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares of such estates." Rule 18 of Order XX of the Code of Civil Procedure, dealing with the question of the execution of partition decrees, reiterates the same‑ procedure. It follows, therefore, that until such time as the Collector or is gazette subordinate has carried out the actual partition, in terms of the decree, the holding would continue to be a joint holding. On this view of the matter, the question of the applicability of the prohibition contained in Paragraph 23 of the Regulation would ordinarily have needed examination, but we find that it is not possible to do so as no information is available on the record regarding the other areas held by the contending parties in the same estate or Deb, as contemplated 0y the second proviso to clause (11) of Paragraph 2 of the Regulation, which defines the term "subsistence holding". This proviso clearly contemplates that for purposes of Paragraphs 23 and 25 area or areas comprised within a particu lar estate have to be taken into account. It was asserted by the learned counsel for the respondents that the parties did own considerable other area in the same Deh. It is not possible for us at this stage to undertake an inquiry into this matter. We also find that the holding was in fact partitioned by metes and bounds more than six years ago. The appellants as well as the respondents assumed physical possession of their respective shares. Any adverse finding against the respondents would mean undoing of the physical partition, restoring the joint holding, and then making arrangements for its manage ment in terms of Paragraph 24 of the Regulation. All these steps are bound to involve extreme hardship to the respondents who are owners of only four annas share in the disputed land. For all these reasons, we are inclined to agree with the learned counsel for the respondents that, whatever the legal position, this is not at all a fit case for our interference at this stage so as to upset the arrangements which have remained in existence for more than six years. The appellants should have obtained a suitable order at the proper time to prevent the partition of the joint holding, but they failed to do so. We would accordingly dismiss this appeal, and leave the parties to bear their own costs. Appeal dismissed.