Partial partition

2023 CLC 380 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.135 & 147Partial partitionMaintainability

Respondents/plaintiffs claimed that the suit property had attained the residential character which was joint inter se parties and that the petitioners were intending to alienate the property

Trial Court passed preliminary decree and appeal of the petitioners was dismissed

Petitioners contended that respondents/plaintiffs did not include the whole land in the suit and as such the suit was hit by partial partition

Respondents contended that petitioner did not bring any cogent material on record to establish the question of private partition; that private partition would have no impact unless compliance of S.147 of the Punjab Land Revenue Act, 1967, was made; that suit Khasra was the only Khasra which had attained the urban nature

Validity

Admittedly parties to suit were co-owners

Respondents' witness deposed that in terms of private settlement, the petitioners were in possession of the property falling in their share and that other co-owners were also holding their respective possession as per their entitlement

No written instrument was produced to establish private partition

Petitioners failed to lead any cogent evidence with regard to private partition

Suit property was part of a Khewat which consisted of 11 Khasra numbers and property falling therein was joint inter se parties and the suit property was not separable from the property situated in other Khasra numbers of the same Khewat

Respondents initially moved an application under S.135 of the Punjab Land Revenue Act, 1967, seeking partition before Tehsildar/Assistant Collector which was declined and appeal was dismissed by District Collector

Suit for partial partition was not proceedable

Revision petition was dismissed accordingly.

2020 PLD 101 PESHAWAR-HIGH-COURT Judicial Precedent

S. 135Partition of landed propertyPartial partitionEffectPetitioners moved applications for partition of different Khasras

Partition proceedings were conducted and after deriving mode of partition in all the Khasras files were sent to Patwari Halqa for further proceedings

Patwari Halqa submitted report that partition proceedings in one Khasra number could not be completed due to snowfall and partition application for partition of said Khasra was sine die adjourned

Appellate Court set aside the said order and directed that partition proceedings in all the petitions be conducted simultaneously

Validity

Parties were joint owners in all the Khasra numbers and no proper partition could be conducted by exclusion of one Khasra

High Court observed that partition petitions should have been kept pending till the end of snowfall and thereafter proceedings should have been conducted in the same

Partial partition could not be allowed and entire properties owned by the parties should be included in the partition proceedings to safeguard the co-owners from being discriminated

Entire corpus had been placed in a common pool for the Court to ensure allotment to each co-owner equitably depending on the value

No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below

Partition proceedings conducted in exclusion of one of the Khasra numbers were declared null and void

Trial Court was directed to derive a fresh mode of partition with regard to all the Khasra numbers and decide all the partition petitions simultaneously

Constitutional petition was dismissed, in circumstances.

2016 YLR 1489 PESHAWAR-HIGH-COURT Judicial Precedent

S. 4Partial partitionScope

Partial partition not to be allowed and entire properties be included in the application irrespective of possession of properties

Partition proceedings were an application simple to get the property partitioned and same could not be treated as "suit".

2016 PLD 8 PESHAWAR-HIGH-COURT Judicial Precedent

S. 4Civil Procedure Code (V of 1908), O. XX, R. 18West Pakistan Land Revenue Act (XVII of 1967), Ss. 3 & 172 (2)Suit for partitionRights of parties, determination ofScopePreliminary decreePurposePartial partitionCompetence

Partition had to be sought for all the undivided immovable properties and partial partition thereof would not be competent

All the co-sharers of said undivided property had to be impleaded in the suit for partition

Court to ensure that each co-sharer was allotted his share equitably depending on the value thereof which would depend upon the area, location and nature of property

Suit property sought to be partitioned was situated within the Abadi Deh and civil court was competent to adjudicate the partition proceedings

Defendants had failed to point out any other joint immovable property within Abadi Deh in the Mauza

Immovable undivided property outside the Abadi Deh had to be partitioned by the Revenue hierarchy

Plaintiffs could not have included the land owned by the parties in Shamilat Deh in their suit filed before the Trial Court

Trial Court was required to first determine the respective rights of the parties and record the same in the preliminary decree

Said preliminary decree would ensure each party /co-sharer to know exactly their rights which would include their respective shares and if any improvement was made thereon

Both the courts below had accepted the prayer for partition but had not determined the respective rights of the parties

Impugned judgments passed by both the courts were set aside and case was remanded to the Trial Court with direction to determine the rights of the parties and decide the same within specified period.