1990 PLP 997 (MLD)

Brief facts giving rise to this application are that in a petition under section 278 of Succession Act, partition of a house jointly owned by the parties was ordered. The Commissioner submitted his report to the effect that the property cannot be partitioned and therefore, proposed that it should be sold. Defendant No. 4, who is one of the co-owners was residing in the house. He did not vacate the house and consequently the house could not fetch reasonable price. The Court on the application of the plaintiff directed that defendant No. 4 be ejected from the house before the house was put to auction. However, in order to safeguard the interest of Defendant No. 4, certain terms and conditions were provided which can be seen in my order dated 17th December, 1989. Defendant No. 4 did not prefer any appeal against that order. He has filed the present application under section 148 r/w section 151 CPC. Mr. Iftekharuddin, learned counsel, who appeared for Defendant No. 4, submitted that in a suit for partition the Court had no power to order ejectment of any co owner, who was in possession of the property. In this connection first he referred to Rule 552 of Sindh Chief Court (O.S.) Rules and submitted that neither this Rule nor, Rules 337 to 351 provided that while ordering a sale, the Court can order ejectment of a co-owner in possession of an immovable property. I do not agree with this contention. The above rules also do not prohibit the Court from A ordering the ejectment of a co-owner and therefore, it cannot be presumed that they impose any restriction on the power of the Court to do so in a proper case. He then relied on PLD 1975 SC 9 (Adam Khan v. Mohammad Sultan). I am afraid this ruling does not help Mr. Iftekharuddin at all. It on the contrary goes against him and holds that a co-owner occupying a house is not a tenant of the ramaining co-owners and cannot resist his ejectment on the ground that the proceedings under Rent Restriction Ordinance should be taken. The ruling says that the Court can take possession from such a co-owner under the provisions of Order XXI, Rule 95 or Rule 35, C.P.C. as the case may be. I am, therefore, of the clear view that in a decree for partition of a property the Court can, if it considers I it expedient in the interest of justice to do so, order that a person bound by the decree including a co-owner in possession of the house, be ejected therefrom. Such a person or co-owner cannot resist ejectment on the ground that he was under the law a tenant of other co-owners. The second leg of arguments of Mr. Iftekharuddin was that he had come to pray for extension of time under section 148 C.P.C., which power the Court has always retained. With this proposition of law there can be no cavil. Until and unless the suit was finally disposed of and the Court had lost seisin over it, the Court could have extended time for performance of any act. The proceedings of this suit would show that the Court had been already very considerate to Defendant No. 4 and had given him all possible latitude that he was entitled to C under the circumstances of the case. After all the Court has also to take care of the rights and interest of the other co-owners of the property. Hence I am of the view that my order dated 17-12-1989 is most appropriate order in the circumstances of the case and does not call for any interference. Hence I dismiss C.MA. No. 79/90 and direct that defendant No. 4 should vacate the house within a period of three weeks from today. AA./M-1041/K. Application dismissed.