Family partition

2018 YLR 2617 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 42 & 39Civil Procedure Code (V of 1908), O. XLI, R. 27Suit for declarationMaintainabilityCo-sharerFamily partitionSale of joint property without partitionScopeDocument not produced by the parties before the Court, consideration ofRequirements

Contention of plaintiff was that suit land was in his ownership and possession on the basis of family partition and defendant had sold excess land from his share without having possession and entitlement

Suit was dismissed by the Trial Court which was upheld by the Appellate Court but High Court decreed the same and sale deed was cancelled

Validity

Neither family partition nor possession on the suit land had been proved by the plaintiff

When plaintiff was out of the possession, he should have sought relief of possession

Present suit under S. 42 of Specific Relief Act, 1877 was not maintainable in circumstances

Findings recorded by the Trial Court had rightly been maintained by the Appellate Court

High Court was not justified in calculating the share of plaintiff only from one Khewat while leaving the other Khewat

Whole holding in the village comprising of different Khewats while calculating share of plaintiff was liable to be taken into consideration

Co-sharer in possession of a specific field number could validly transfer suit land even though his share in such specific field number had exceeded his share provided it did not exceed his overall share in the total land

Revenue staff could not go beyond the decree and was bound to give effect to it unless same was set aside or varied by the competent Court

Document not brought on record of the Court in accordance with procedure could not be considered or accepted by the Court

Proper procedure for the party would be to apply for bringing the said document on record as an additional evidence

Impugned judgment and decree passed by the High Court were set aside and those of Courts below were restored

Appeal was allowed in circumstances.

2016 YLR 709 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 42Suit for declarationCo-sharerFamily partitionScope

Contention of plaintiff was that defendant was co-sharer in the suit land who illegally and without partition wanted to snatch the possession of the said land

Suit was dismissed concurrently

Validity

Suit land was in the exclusive possession of defendant

Vendor/defendant had not alienated the land in excess of his share out of total suit property

Possession of vendor/defendant was on the specific land due to family arrangement

Family division even if admitted did not extinguish the title of other co-sharers

Possession and sale by the co-sharer would debar other co-sharers to get back such possession or challenge the instrument of alienation/sale

Such family arrangement would be subject to adjustment at the time of partition as would have been the case if vendor had not sold the land

No mis-reading or non-reading of evidence or misconstruction of law had been pointed out in the impugned judgments and decrees passed by the courts below

Appeal was dismissed in circumstances.

2016 MLD 431 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Family partitionScopeDefendant had not alienated the land in excess of his share out of total suit propertyPossession of defendant on specific survey number was according to family arrangementSuch family division (arrangement) even if admitted did not extinguish the title of other co-sharers

Possession and sale of specific survey numbers would debar other co-sharers to get back such possession or challenge the instruments of alienation/sale but same would be subject to adjustment at the time of partition

No misreading or non-reading of evidence or any misconstruction of law had been committed by the courts below

Appeal was dismissed.