Suit for possession through partition

Petitioner filed application for registration of sale deed qua transfer of property during the pendency of suit and existence of status quo order, which was concurrently refused by the courts below

Validity

Petitioner/vendor was a contesting party before the trial court in the pending suit filed by the respondent and if he was allowed to alienate the property in question in favour of petitioner/vendee, then definitely it would adversely affect the interest and cause of respondent

Pendency of a suit in any court or proceeding, which was not collusive and in which any right to immovable property was directly and specifically in question, the property could not be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order, which may be made therein

Findings of the courts below did not suffer from any illegality or irregularity

Civil revision was dismissed, in circumstances.

Petitioner (one of the legal heirs) filed objections on the report submitted by the Court Auctioneer, but the same was dismissed on account of petitioner's failure to deposit the 20% (twenty percent) of the sum realized at the sale

Petitioner preferred an appeal against the said order before the High Court which also met the fate of dismissal

Plea of petitioner was that his objection application was made under Order XXI, Rule 84 of the Code of Civil Procedure, 1908 ("C.P.C.") but it was decided within the limits of Order XXI, Rule 90

Validity

Such plea of petitioner was not tenable in eyes of law

It is clear from a bare reading of Order XXI, Rule 84, C.P.C. that the purchaser is required by law to immediately pay twenty-five percent of purchase money and there is no word that suggests objections to auction proceedings may be filed by the owner/legal heirs of the owner of the subject property under this rule

Moreover, petitioner in this case, was not a purchaser but his predecessors in interest were the owner of the subject property, hence, he could not have invoked Order XXI, Rule 84, C.P.C.

Trial Court deemed the objections filed by petitioner as an application under Order XXI, Rule 90, C.P.C.

Trial Court directed the petitioner to deposit twenty percent of the sale proceeds but he failed to do so

Neither he made any application for an extension of time nor showed any willingness to deposit such an amount

Trial Court has rightly observed that there had been an inordinate delay in the execution of the decree and six years had already elapsed

Petition was dismissed and leave to appeal was refused.

Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner/defendant before District Court, however, the same was dismissed

Validity

Word "willing" was defined as "eager, co-operative, ready and prompt to act; voluntary; chosen; intentional"

Word "willingness" meant "ready to do something" which word ("willingness") also denoted the conduct of a relevant party

In the present case, the petitioner, instead of willingly participate in the proceedings remained extremely disinclined

Conduct of the petitioner had shown that he was not prepared or ready for the internal auction; he kept wasting the time of the Trial Court and caused delay of about 9 months in just one step of the case (i.e. internal auction), entirely contrary to the intent of legislature reflected from the Preamble and S. 14 of the Act, 2012

No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Court below

Constitutional petition was dismissed in limine, in circumstances.

Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner (defendant/co-owner) before District Court, however, the same was dismissed

Section 14 of the Act, 2012 provides specific period of six months to complete the proceedings in such suits from their date of institution

Process of internal auction was initiated after about eleven months of filing of the present case and the petitioner had already gained about nine months for making a suitable offer or properly assisting the Trial Court in the proceedings of internal auction or showing willingness to participate

By various means and adopting different tactics the petitioner defeated the very purpose of the Act, 2012 which had been enacted for the purposes of expeditious partition of immovable properties and to provide remedy for ancillary matters

Respondent-lady throughout the proceedings kept appearing, whereas, the petitioner had even avoided to appear in person and his lawyer had shown no interest in the progress of the case or the internal auction

No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below

Constitutional petition filed by the defendant/co-owner was dismissed, in circumstances.

Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner (defendant/co-owner) before District Court, however, the same was dismissed

Contention of the petitioner was that internal auction has been declared as unsuccessful in haste and without observing the requirement of law

Validity

Record revealed that the Trial Court passed order for holding internal auction, after reaching to the conclusion that there was no dispute as to the ownership of the suit property

In pursuance of S. 10(2) of the Punjab Partition of Immovable Property Act, 2012 ('the Act, 2012'), the parties were directed to appear in person

Evaluation report of the suit property was submitted and the petitioner was directed to appear on next date, when the respondent-lady remained present but the petitioner failed to appear

Even thereafter, petitioner kept seeking adjournments on different pretexts (like suffering from COVID-19, or out of the Country etc.)

Ultimately, in view of the conduct of the petitioner, the Trial Court after proceedings had spanned for about nine months, concluded that he was not interested in the internal auction and closed proceedings relating to internal auction by declaring the same as unsuccessful

Section 11(1) of the Act, 2012 reflected that if the co-owners had refused to participate in internal auction, or only one co-owner had showed willingness to participate in such auction and other(s) were not willing or when the internal auction under section 10 of the Act had failed, then the Court could proceed with open auction and fix the reserve price

In the present case, the Trial Court initiated the proceedings for internal auction but the petitioner failed to appear or to make any offer for the progress in the internal auction; he continued to be absent from the Court and his counsel kept seeking adjournments on one or the other pretext for more than nine months

No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Court below

Constitutional petition was dismissed in limine, in circumstances.

Petitioners/vendees had purchased the share of one of the respondents during the pendency of the case and they were impleaded as party by the Appellate Court during hearing of appeal preferred against the preliminary judgment and decree

Petitioners assailed the dismissal of the appeal preferred against the preliminary decree

Held, admittedly, petitioners purchased the share of vendor/respondent during the pendency of suit for possession through partition

Petitioners had stepped into the shoes of the vendor/respondent who himself had not challenged the preliminary judgment and decree before the Appellate Court

Preliminary decree had, thus, attained finality and fell under the past and closed transaction, which could not be re-opened merely on the whims and caprice of the party

No illegality or infirmity was found in the impugned judgment and decree passed by the Appellate Court maintaining the preliminary decree

Revision was dismissed, in circumstances.

Revision was dismissed in, circumstances.

Trial Court passed final decree in the terms that subject to payment of share of defendants the plaintiffs would be owner of suit property

Validity

Court had jurisdiction to decide whether suit property was partitionable or not

If suit property was not divisible due to its nature and sale proceed was more beneficial, then Court might pass order for sale of suit property and distribution of sale proceeds amongst the shareholders

"Request" for sale of suit property might be written or verbal

Where preliminary decree had been passed then S.2 of Partition Act, 1893, was not applicable

Mere non-filing of written application for sale of suit property would not defeat the right of any of the parties to purchase the same

Possession of suit property was with the defendants who had 5/6 shares as compared to 1/6 of the plaintiffs in the suit land

Share of defendants was much bigger than that of plaintiffs in addition to the fact they had possession of suit property

Defendants were to be given opportunity to purchase the minor share of plaintiffs in the suit property, in circumstances

No illegality had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed, in circumstances.

Applicants moved application that suit property was undivided dwelling house and they were ready to purchase the same which was dismissed concurrently

Waiver, principle of

Applicability

Validity

Petitioners or their predecessor never pressed into service the alleged claim that suit property was an undivided dwelling house belonging to undivided family which could not be partitioned or they were willing to purchase the same

Petitioners had filed present petition after a period of twenty three years from the date of decree passed in partition suit

Petitioners could not raise the plea under S. 4 of Partition Act, 1893 and principle of waiver was applicable, in circumstances

Suit property was not an undivided dwelling house

Revision was dismissed, accordingly.

Plaintiff in a suit being dominus litis might choose the persons against whom he wished to litigate and could not be compelled to sue a person against his wishes

Discretion under O. I, R. 10(2), C.P.C. could be exercised either suo motu or on the application of plaintiff or defendant or application of a person who was not a party to the suit

Court could add any one as a plaintiff or as a defendant if it found that he was necessary or proper party

Trial Court without having any supporting document had passed the impugned order at premature stage

Impugned order was not sustainable in circumstances

Applicant after filing relevant documents might file fresh application for impleadment as a party

Impugned order was set aside and application for impleadment of party was dismissed

Revision was allowed in circumstances.

Preliminary decree in the suit for possession through partition was passed wherein an application was moved by the defendant for grant of final decree which was accepted

Petitioner filed application against grant of final decree which was dismissed concurrently

Validity

Each and every party in a suit for partition was a decree-holder and also a judgment-debtor at the same time

Application for final decree might be filed by any of the parties to the suit for partition either plaintiff (s) or defendant(s) in the suit

Respondent was one of the defendants in the suit for partition and preliminary decree had accrued a right in her favour to seek final decree for partition

Application of petitioner for dismissal of respondent's petition for final decree was without force and same was rightly dismissed by the courts below

Revision was dismissed in circumstances.

Defendant in a partition suit was required to file written statement within thirty days commencing from the date of his first appearance in the Court subject to receipt of notice/summon

Petitioner-defendant appeared on 04-02-2014 whereas other defendant put appearance before the Court on 25-02-2014

Defendants were required to file written statement by 06-03-2014 and 27-03-2014 respectively

Petitioners did not file written statement till 25-07-2016 despite direction and warning that no further opportunity would be granted for filing written statement

Provision of S.6 of Punjab Partition of Immovable Property Act, 2013 was mandatory

When timeframe for doing something had been prescribed by law, it should be followed stricto sensu and no time extension should be given unless there was some lawful justification

No plausible reason or justification could be produced by the petitioners for extension of time for filing the written statement

Judicial record having legal sanctity would prevail over the verbal assertions of defendants

Petitioners did not comply with the mandatory provision of law as well as order of the Court and their right to file written statement was rightly closed

Revision was dismissed in circumstances.

If a party did not produce any evidence to support the contents of its written statement then, in absence of any admission on the part of plaintiff, the averments contained in the said written statement could not be treated as evidence

Plaintiffs' version had been supported through evidence while defendant neither cross-examined the plaintiffs' witnesses nor did he lead any evidence

Contentions/assertions and evidence led by the plaintiffs would be deemed to be admitted by the defendant

Documents relied upon by the plaintiffs had not been disputed by the defendant

Plaintiffs had established their right over the suit property

Plaintiffs were co-owners of an un-divided suit property

Suit property was to be sold by way of public auction through Nazir of the Court and sale proceed be distributed amongst the co-owners i.e. plaintiffs and defendants as per their legal share in equal proportion.

Appeal against the decree or order of Civil Judge would lie to the District Judge if the value of original suit in which such decree or order was made did not exceed Rs. 5,00,000/- and to the High Court in any other case

If defendant questioned the original value of the suit or Court disagreed with the determined jurisdiction value of the suit assessed by the plaintiff then the Trial Court could pass order fixing the value after framing issue and providing an opportunity to the parties to produce evidence

Pecuniary jurisdiction of the Court had to be determined with reference to the valuation given in the plaint and could not be connected to the escalation in the price of the property during pendency of the suit

Valuation of the property for the purpose of jurisdiction would be same as mentioned in the plaint unless determined by the Trial Court after framing issue

Suit for the purpose of jurisdiction and court-fee was valued as Rs. 37.50/

Neither the defendant questioned nor the Trial Court had determined the original jurisdiction value of the suit by way of framing of issue

Valuation of suit for the purpose of jurisdiction in the matter of appeal would be the same as mentioned in the plaint

Petitioners had rightly availed remedy of appeal before the District Judge but order of return of memo of appeal had been passed which was not sustainable

Impugned order was set aside and appeal filed would be deemed to be pending before the Appellate Court

Appellate Court should decide the matter in accordance with law within a period of two months

Revision was allowed in circumstances.

Suit was dismissed on the ground that no proof of ownership of commercial property could be brought on record and rest of the property was agricultural in nature

Validity

When most of the properties were of residential/commercial nature, Civil Court being the court of ultimate jurisdiction was the sole forum to decide the lis brought before it

If suit qua the cluster of properties was instituted before the Civil Court which possessed the jurisdiction in respect of any of the said properties, court, to the extent of other properties regarding which it had no jurisdiction could adjudicate upon being court of ultimate jurisdiction

Plaint could not be rejected or returned in piecemeal, it could only be rejected if all reliefs claimed were barred under the law

Most of the properties involved in the present case were residential/commercial and among those if any of the property was found to be agricultural falling in the joint holding of the parties requiring partition, then plaint to such extent could neither be partially rejected/returned nor suit could be dismissed on said score

Courts below had erroneously non-suited the plaintiff

Impugned judgments and decrees were nullity in the eye of law which were set aside

Case was remanded to the Trial Court for decision afresh on merits within a period of four months

Revision was allowed in circumstances.

Contention of defendants was that suit property had been transferred in their favour through gift by their predecessor-in-interest

Suit was decreed concurrently

Validity

Parties to the suit were legal heirs of the deceased who had left the property in question

Defendants had failed to place on record any document in support of their conten-tion

Both the parties being legal heirs of deceased were owners of suit land to the extent of their shares

Suit property was still joint between the parties

Donee had to prove the time, date and place of offer; acceptance and delivery of possession in case of oral gift

Defendants had failed to bring on record any reliable and confidence inspiring evidence with that regard

Record of Excise and Taxation Department/property tax and P.T.1 could not be a title document

No person could be permitted to grab the inherited property and legal right of any other co-owner/legal heir on the basis of such record

No misreading or non-reading of evidence or jurisdictional defect had been pointed out by the defendants in the findings recorded by the courts below

Revision was dismissed in limine.

Plaintiffs had valued their suit for the purpose of court-fee and jurisdiction as Rs.120 & 200/- and same was accepted by the Trial Court and no direction was given for correction of same in the plaint

Defendants asserted that they had made improvement over the suit property to the tune of Rs.15,00,000

Valuation as made in the plaint would be taken the basis for determination of pecuniary jurisdiction of Trial Court as well as forum of appeal till it was determined by the Court

Defendants had not raised any objection over the suit valuation or court-fee fixed and determined by the plaintiffs

Trial Court had not opined that either the value of court-fee or the suit valuation for the purpose of jurisdiction be amended and accepted it as same was determined and fixed by the plaintiffs in the plaint

Value of original suit in which judgment or order had to be made would determine the forum of appeal

Valuation of suit would be the same which had been disclosed in the plaint for the purpose of jurisdiction of court

Court of lowest grade with jurisdiction of same value would be competent to entertain and decide the suit and appeal would similarly lie to the Court having jurisdiction to entertain the same of same value

Appellate Court had not exercised the jurisdiction vested in it properly

Impugned judgment passed by the Appellate Court was set aside and appeal would be presumed to be pending before it

Revision was accepted in circumstances.

Defendants-petitioners contested the suit on the ground that they had purchased the suit property from the predecessor-in-interest of the plaintiffs-respondents

Earlier suit of the plaintiffs-respondents was dismissed being barred by time

Fresh suit was filed with permission of the Appellate Court whereby the earlier suit was withdrawn with permission to file a fresh one

Validity

After withdrawl of first suit limitation was to be reckoned from the date of filing of earlier proceedings

Once limitation started on some cause of action, then it did not stop

Earlier suit was dismissed being barred by time, the fresh suit was liable to be dismissed.

Only contents of plaint were to be considered while invoking provisions of O.VII, Rule 11, C.P.C. wherein cause of action was disclosed

Plaintiffs had a right to have a fair trial by producing evidence and to have a judicial opinion of the court on merits of case

Court had to presume that averments made in the plaint were true

Power to reject plaint under O.VII, R.11, C.P.C. must be exercised only in a clear case wherein court had concluded that even if the averments of plaint were proved the plaintiffs would not be entitled to any relief

Averments of plaint had disclosed cause of action and Trial Court was not justified to reject the plaint

Assertions made in the written statement or documents annexed with the same were to be ignored while deciding application under O.VII, R.11, C.P.C.

Pleadings of parties could not be considered as evidence when its maker was not examined in its support and cross-examined by his opponent

Provisions of S.141, C.P.C. would not attract to such applications

Requirement of recording evidence on question of fact could not be bye-passed to justify invoking the provisions of O.VII, R.11, C.P.C.

Trial Court should record evidence and decide preliminary as well as factual issues through its judgment

Provisions of O.VII, R.11, C.P.C. could not be invoked in case of controversial questions of fact or law

Proper course in such cases was to decide all the objections after recording evidence of parties

Vendee in joint holdings was sharer in the same

Both the courts below had failed to exercise their jurisdiction so vested to them and had acted in excess of their jurisdiction illegally and with material irregularity

Judgments and decrees passed by both the courts below were set aside

Revision was accepted in circumstances.

Appellate Court exercised its discretion properly and allowed one opportunity to the plaintiffs to produce their evidence

No illegality had been committed by the Appellate Court and substantial justice had been done

Revision was dismissed in circumstances.