2003 PLP 338 (MLD)

Instant civil revision is directed against the order dated 7‑3‑2000 passed by the Civil Judge 1st Class, Islamabad whereby he appointed local commission to assess the value of the property subject‑matter of the instant litigation.

2. Briefly stated the facts are that Dr. Muhammad Ilyas filed a suit for partition against Sh. Iftikhar Ahmed and Sh. Arshad Mehmood in respect of property bearing House No. 12, Street 11, Sector F‑7/2, Islamabad. The matter was finally adjudged in R.F.A. No. 127 of 1999 which was disposed of vide judgment and decree, dated 2‑2‑2000. As a result of said judgment and decree the petitioner moved execution petition for partition of the suit property and during the pendency of that application the respondents moved an application under section 3 of the Partition Act, 1893. Reply of the said application was obtained from the petitioner and thereafter, the trial Court passed order dated 7‑3‑2000 whereby he appointed local commission to assess the value of the suit property.

3. Instant civil revision has been directed against the order dated 7‑3‑2000 on the ground that the trial Court was not competent to pass the said orders, as an order on application moved under section 3 of Partition Act, 1893 could only be passed if an application under section 2 of the Partition Act, 1893 had been moved.

4. Arguments have been heard and record perused.

5. Contention of the learned counsel for the‑petitioner is that no order on application under section 3 of Partition Act, 1893, moved by the respondent, could be passed, as no application under section 2 of the Partition Act, 11893 had been moved in the instant case. He contends that an application under section 3 of Partition Act, 1893 can only be moved if an application under section 2 under the said Act has been moved. He submits that application for sale of the suit property moved by him was never moved under section 2 of the said Act and no such application could be moved by him, as he owned less than 1 /2 share of the property and an application under section 2 of the Partition Act, 1893 could be moved by shareholder who owns 1/2 share or more share in the property. He thus submits that as he never moved application under section‑2 of the Partition Act, 1893, so the trial Court could not assume that the application moved by him had been moved under section 2 of Partition Act, 1893 and pass the order dated 7‑3‑2000 directing appointing a local commission to inspect the property and assess its valuation.

6. Conversely, the stand of learned counsel for the respondents that application for sale of suit property moved by the present petitioner is an application as envisaged under section 2 of the Partition Act, 1893 and as such application under section 3 of the Partition Act, 1893 moved by them was maintainable and order, dated 7‑3‑2000 has been passed in accordance with law.

7. A perusal of section 2 of Partition Act, 1893 presupposes that such an application can only by moved by a shareholder of 1/2 share or more in the suit property. Admittedly there are three shareholders of the suit property out of whom one is petitioner whereas others are respondents Nos. l and

2. It is thus clear that petitioner being 1/3 shareholder in the suit property could not move any application under section 2 of the Partition Act, 1893 and as such application for sale of the suit property moved by the present petitioner by no stretch of imagination can be deemed to be an application under section 2 of the Partition Act. 1893.

8. Since no application under section 2 of Partition Act, 1893 has been moved which is a prerequisite for moving an application under section 3 of the Partition Act, so the trial Court could not appoint a Local Commission to assess the value of the suit property vide order dated 7‑3‑2000. Accordingly order dated 7‑3‑2000 is not sustainable in the eyes of law. Consequently revision petition is accepted and the said order is set aside.

9. It may also be mentioned that Civil Revision No.229 of 2000 has been filed by Dr. Muhammad Ilyas challenging the order dated 3‑5‑2000 directing the respondents to deposit 1/3rd of the price of the suit property as determined by the local commission. Since the very order dated 7‑3‑2000 on the basis of which valuation of the suit property has been assessed, stands set aside vide order of even date in civil revision No.242 of 2000, so the order dated 3‑5‑2000 directing respondents to deposit their share of the suit property cannot be maintained. Consequently the Civil Revision No.229 of 2000 is accepted and the impugned order dated 3‑5‑2000 is set aside.

10. Alongwith this Civil Revision No.234 of 2000 has also been filed by Sh. Iftikhar Ahmed etc. whereby they have also challenged the valuation assessed by the local commission , and challenged in Civil Revision No.229 of 2000. The stand of the petitioners (Sh. Iftikhar Ahmed etc.) is that said valuation has not been fixed in accordance with the prevailing value of the properties, situated in the same locality.

11. As neither the present petitioner Dr. Muhammad Ilyas, (petitioner in Civil Revision No.229 of 2000) nor Sh. Iftikhar Ahmed etc. (petitioners in Civil Revision No‑234 of 2000) have accepted the valuation determined by the local commission, so the valuation of the property assessed by the local commission is set aside. Accordingly Civil Revision No.234 of 2000 stands accepted.

12. The upshot of above discussion is that property is being claimed by the decree‑holder on the one side and judgment‑debtors on the other hand. The trial Court had appointed local commission to assess the value of the suit property, which has not been accepted by either of the parties. Under these circumstances, there is no way left, but to direct the trial Court to auction the suit property in accordance with law. Order accordingly.

13. With this observation, all the civil revisions stand disposed of. H.B.T./I‑155/L Order accordingly.