Partition

Petitioners claimed their share in the Shamilat-Deh by way of instituting a suit, which was dismissed for want of non-impleadment of necessary and proper parties

Appeal preferred by the petitioners was partially accepted by declaring them co-sharer to certain extent and no declaratory decree was passed for the reason that since the subject matter of the suit was Shamilat-Deh, therefore, Civil Court had no jurisdiction to entertain the suit

Validity

Question of jurisdiction of the Civil Courts or Revenue Courts established under the provisions of Land Revenue Act, 1967 (Act, 1967) in the matter of Shamilat lands depends upon the nature of the property

Disputed property was admittedly recorded as Ghair Mumkin Abadi in the revenue record, thus, Revenue Courts established under the Act had no jurisdiction to entertain the suit, as the jurisdiction of Revenue Courts was only confined to the lands which were used for agricultural or ancillary purposes and assessed for land revenue, which was certainly not the case of the petitioners

Property in dispute being Shamilat land and comprised of Ghair Mumkin Abadi was excluded from the operation of the Act, 1967 in terms of S.3 of the Act, 1967, and as such the same fell within the jurisdiction of Civil Court, albeit, for maintaining suit for declaration in the matters of Shamilat-Deh filed under S.42 of the Specific Relief Act, 1877, the entire proprietary body of the village was required to be impleaded being necessary and proper party, as no effective decree could be passed without their impleadment in the suit

Constitutional petition was allowed, in circumstances, while remitting the matter to the Trial Court with the direction to allow the petitioners to file an application for impleadment of the entire proprietary body of the village being necessary and proper parties in the array of defendants in the suit.

Petitioner (co-sharer) assailed order passed by the Additional Commissioner (Revenue) whereby a specific khasra number, indicated by the respondent (co-sharers), was excluded from his (respondent's) share and was included in the share of the petitioner ('khasra number-in-question')

Validity

Record revealed that the khasra number-in-question (the respondent wanted to be excluded from his share) remained under possession of the respondent, and father of the respondent, undeniably, had sold a piece from that land to Sui Northern Gas Pipelines Limited and got payment for that land

Thus, the khasra number-in-question could not be excluded from the share of the respondent and could not be included in the share of the petitioners

Respondents could not highlight any other infringement of their rights

Hence, the Additional Deputy Commissioner (Revenue) rightly rejected the appeal of the respondent and the Additional Commissioner (Revenue), Sahiwal Division, clearly wrapped up the whole proceedings by passing a stereotype order, without considering the record and facts

Member Board of Revenue set aside impugned order passed by the Additional Commissioner (Revenue); consequently, orders passed by the Additional Deputy Commissioner (Revenue) and Tehsildar were maintained

Revision petition was accepted, in circumstances.

Vendee purchasing property from a co-sharer, who owns an undivided joint property, is clothed with the same rights in the property, no more or no less than that of the vendor

If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to the vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of the transferor qua ownership rights in the joint property, to the extent of the area purchased, provided that the area in question does not exceed the share which the transferor owns in the whole property

Alienation of specific portion to the vendee would only entitle the latter to retain ostensible possession till such time as an actual legal partition by metes and bounds takes place between the co-sharers.

Courts of law have recognized such private partition as the same requires some degree of recognition under law or through conduct of parties.

Vendee from a co-sharer, who owned an undivided joint Khata, was clothed with the same rights as the vendor had in the property, no more and no less

If the vendor was in exclusive possession of a certain portion of the joint land and transferred its possession to his vendee, so long as there was no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property to the extent of the area purchased by him, provided that the area-in-question did not exceed the share which the transferor owned in the whole property

Alienation of specific portion to the vendee entitled him to retain ostensible possession till such time an actual legal partition, by metes and bounds, would take place between the co-sharers.

Contention of plaintiff was that he was entitled for possession of suit property to the extent of his share whereas defendants contended that their father had distributed his property to the legal heirs

Suit was dismissed concurrently

Validity

Father of parties remained in possession on the suit property

Suit land was subject to distribution/partition amongst all the legal heirs of the deceased

Concept of inheritance in property of deceased would run against all kinds of properties

Selective ejectment proceedings would be a foul play and must be discouraged

One of defendants/legal heir was an insane person

Parties had no right of any kind of appropriation of properties or share of the insane heir during his life-time

Legacy of deceased was subject to partition/distribution amongst all the legal heirs

Trial Court was bound to calculate shares of all the legal heirs of the deceased

Courts below had not applied their mind in accordance with shariah laws

Appellate Court had neither recorded findings on each and every issue nor had rendered findings on the basis of points for determination

Impugned judgments and decrees passed by the Courts below were set aside

Case was remanded to the Trial Court with the direction to record its findings afresh on all issues

Revision was allowed in circumstances.

Partition of joint property was a continuing right, enforcement of which was not bound by any period of limitation.

Mere holding of possession did not disentitle other co-owners from claiming partition of property and in such matter limitation was not relevant and suit for partition could be filed at any time.

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

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

Court should 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.

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.

Orders passed by Additional Commissioner (Revenue) and the one by District Collector, regarding partition of said land were set aside

District Collector was directed by Board of Revenue to reverse the possession as was before order of partition in revenue record, within one month of receipt of present order.

Conversion of such land into a Housing Scheme by one co-sharer in possession and alienating same to extent of his own share while utilizing land of remaining co-sharers for roads and other amenities

No law existed to protect right of remaining co-sharers while seeking partition of such land over which a Housing Scheme or constructed property existed

High Court emphasized Legislative Authorities to frame suitable law(s) on such subject.

Right to enforce partition of joint property, for being a continuing right, would not be bound by any period of limitation

Mere holding of possession of joint property by one co-sharer/owner would not disentitle order co-sharers/owners from claiming partition thereof

Limitation would be irrelevant in case of suit for partition, which could be filed at any time.

Co-sharer/owner could not seek partition of a portion of joint property without consent of other co-sharers, otherwise his suit would not be maintainable.

Petitioner filed application before Tehsildar for partition of joint Khata, which application was accepted and Wandas of parties were framed accordingly

Order of partition was maintained by District Officer (Revenue) but Additional Commissioner (Revenue) allowed revision and modified Wandas of parties

Validity

While passing orders, Additional Commissioner (Revenue) placed thrust upon possession of parties, whereas possession was one of the consideration and not the only consideration for disposal of partition cases

Revenue forums, under mandatory provision viz Ss.135 to 150 of West Pakistan Land Revenue Act, 1967 to keep in view all considerations while deciding matter of partition

Board of Revenue set aside the order passed by Additional Commissioner (Revenue) and remanded the matter to District Collector to decide the same afresh

Revision was allowed accordingly.

Possession, recovery of-Proof-Land in question was jointly owned by both the parties and plaintiffs sought recovery of possession on the basis of partition of land between them

Judgment and decree passed by Trial Court was set aside by Lower Appellate Court and the suit was decreed in favour of plaintiffs

Validity

Plaintiffs during evidence neither exhibited the order of partition nor copy of Roznamcha Waqiati showing delivery of possession to their predecessor-in-interest nor "Tatimma" made in favour of plaintiffs as a result of partition was produced

Plaintiffs relied more on "Naqsha Jeem" but such document was not signed by revenue officer or any other competent authority

Entries on the mutation were also not countersigned by competent authority

Mere entry in Register of Mutations did not have any sanctity in the eye of law

Plaintiffs failed to prove that suit-land was partitioned and possession of land was handed over to predecessor-in-interest of plaintiffs

Judgment and decree passed by Lower Appellate Court was set aside and that of the Trial Court was restored

Revision was allowed in circumstances.

Defendant claimed to possess suit property on the ground that after sale of other properties owned by their predecessor-in-interest he did not get any share, therefore, suit property fell into his share

Out of plaintiffs there were two minor daughters of deceased brother of parties

Trial Court decreed suit only to the extent of minor daughters and directed to partition suit property among defendant and minors and dismissed the suit to the extent of remaining plaintiffs

Judgment and decree passed by Trial Court was maintained by Lower Appellate Court but High Court in exercise of revisional jurisdiction reversed concurrent findings of two courts below

Plea raised by defendant was with regard to O.XXXII, R.12 C.P.C. that both the minors were not properly represented before High Court as they had become major

Validity

Such plea was neither agitated before High Court nor taken in memorandum of appeal before Supreme Court

Both minor plaintiffs who had become major were called by High Court to solicit their opinion with a view to ensure complete justice

By the date when statements of plaintiffs in question were recorded by High Court, both of them had not only attained majority but were students of post-graduate classes and that they never raised any objection with regard to their representation

Having joined in the request to summon two ladies in question, it was unchivalrous of defendant to object to their appearance

Supreme Court declined to interfere in judgment and decree passed by High Court

Appeal was dismissed.

Such partition was recognized by the legal maxim i.e. Nemo in communione potest invitus detineri: no one can be kept in cop-proprietorship against his will

Practice of distribution of family property was known from the times immemorial in the sub-continent

Partition is merely an arrangement whereby co-sharers having undivided interest in one or more properties take by arrangements specific property in lieu of their shares

Partition was not to be confused with family arrangements arrived at by members of joint family with a view to neuteralize the hostility and ill-feelings among themselves by avoiding the formal partition proceedings before the Revenue Authority or before the court

Private partition does not determine the legal rights but simply indicates the mode of division of property among themselves

Co-owner in a joint property was not entitled, without assent or acquiescence of the other co-sharers, to exclude portion of joint property or to select a particular portion for the purpose of partition

Co-sharer was required to seek the partition of the landed property as a whole.

Any transfer out of joint Khata even with regard to specific Khasra number is always subject to final adjustment of partition

No person can claim his exclusive ownership with regard to a specific Khasra number on the ground of having been purchased by him to the exclusion of other co-sharer.

Private division would sever joint title and convert joint property into severalty.

Defendants would have no locus standi to pray for dismissal of partition suit on the ground that share of "F" was incorrectly given to plaintiffs

Principles illustrated.

Defendant produced copy of P. T. 1 survey report to establish that private partition had already taker, place and the plaintiffs were estopped to file the suit

Validity

From the facts pleaded and documents produced by the parties, it could not be said that family settlement if any had been acted upon and all the co-sharers were occupying the land under the private partition and, therefore, could not be considered to be ostensible owners of the land and property according to their shares

Both the Courts of competent jurisdiction below had concurrently recorded the fact that the property had not been privately partitioned and the same was still joint between the parties

Judgments and decrees passed by both the Courts below for possession through partition had been awarded in accordance with the shares of the parties which did not call for any interference in exercise of revisional jurisdiction of High Court under S.115. C. P. C.

Decree for partition of "Hujra", thus, had been rightly passed.

Appellate Court came to the conclusion that properties were duly partitioned through family arrangement and same had been acted upon

Finding of Trial Court that no partition document was produced, therefore, partition could not be accepted, was not well founded.

Both parties were co-sharers in the suit land excepting specific Khasra numbers wherein petitioner was not recorded as an owner

High Court had found that petitioner being an owner in the suit land, his suit should not have been dismissed in respect of suit land excepting the specific Khasra numbers wherein he was not shown to be owner and suit of petitioner should have been decreed to the extent of his share in the suit land of which he was in possession as "Hissadar" through family arrangement which was always subject to regular partition

Finding of High Court being based on proper appraisal of Revenue Record, leave to appeal was refused.

Under a compromise between parties, criminal cases registered - against the parties were withdrawn under order of District Magistrate

Complaint filed by respondent against petitioners under Essential Services (Maintenance) Act was still pending in Court although even the departmental proceedings against petitioners were withdrawn by respondent

Respondents did not appear despite service

Complaint filed by respondent, could by implication be considered to have been withdrawn and respondent was not interested in prosecution of complaint

Proceedings in complaint case pending before Court would amount to abuse of process of Court

Proceedings were quashed in circumstances.

In a suit for partition of joint property, it was not necessary for a co-owner to prove that he had been in possession of property within 12 years prior to institution of suit.

Where partition proceedings were conducted in absence of petitioners whose valuable rights of ownership in landed property were involved, such proceedings were against established norms of natural justice and thus nullity in the eye of law.

Out of three houses left by deceased father of three sons, exclusive title m respect of one of the houses by way of gift was proved to be vesting in plaintiff

Sole ownership of plaintiff in respect of one house gifted to him being not disputable it was rightly found by Courts below that suit with regard to partition of other two houses left behind by father of parties was in order.

Person, one of co-sharers, claiming possession of land on basis of private partition to complete exclusion of other co-sharers Such claim also supported by other co-sharer in statement before Court

Case-of separate possession for convenience sake not made out in circumstances.=[Possession]

Unregistered and unstamped document-Value of-Document of amicable partition unregistered and unstamped Could not be relied upon for purpose of proving partition itself-Such document could, nevertheless, be relied on to lend support to a claim of exclusive possession of property involved-Registration Act (XVl of 1908), S. 49.

Partition Partition-Factors to be taken into account in partition proceedings-Not only quantity of land but quality as well.

Dispute between parties relating to original ownership of suit properties and successive devolution of interest therein-Plaintiff and defendant setting up diametrically opposite claims-Questions, could not, in circumstances, be effectively resolved without examination of witnesses.

Partition-Partition of agricultural land-Order passed by Member, Board of Revenue set aside by High Court in writ jurisdiction-Special Leave to Appeal against order of High Court, refused by Supreme Court.

Partition-Land jointly owned by evacuees and locals-Allottees of evacuee land, "persons interested in partition" order of partition passed in absence of allottees not valid-Punjab Land Revenue Act (XVII of 1887), S. 34 (as amended).

Partition -Suit by co-sharer-Residuum of 2 decimal lands found unaccounted for Prayer for partition cannot be refused on ground that some co-sharer, whose existence has not been proved, has not been impleaded as party.

Mode of-Excess land taken away from party and land of other party given to former on principle of consolidation of holdings-Mode not interfered with in Second Revision.

Only party, asking for partition, an auction purchaser front Government of land of an absconder-Part of land given to such party, taken from possession of objecting co-sharer who himself had been cultivating such part only from time of absence of absconder, such land being under cultivation of absconder before he absconded-Land, held, belonged to absconder and objecting party could not claim to retain it.

Partition Mode of, that either party may prepare lots in accordance with shares of various share-holders leaving it to other party to make choice-Cannot be disturbed in revision.

Question of adverse possession-May be decided by Civil Court or by Revenue Officer if he constitutes himself into Civil Court to determine question.

Possession at time of partition proceedings only may be taken into consideration.

Subsequent changes in possession, if not agreed to by parties, to be ignored and position existing at time of filing of application to be taken into consideration along with other factors.

Partition Scheme for partition to be made by local Commissioner and not by arbitrators.

Partition -Question of title to be decided by Revenue Officer, constituting himself into Civil Court, according to civil procedure-Parties to get maximum opportunity permitted by statutes-Punjab Land Revenue Act (XVII of 1887) Ss. 116, 117.

Partition Partition-Suit for partition of land-Plaintiff merely seeking to separate his share from that of defendant-Value of plaintiff's share and not of entire land will determine forum of suit.

Partition -Person claiming half share in properties, having once accepted a mode of partition by himself setting up an agreement - and not repudiating that arrangement cannot be allowed to substitute it by claiming general relief for partition.

Suit for-All parties to suit not shown to have community of interest in all properties of which partition is sought-Whether entire suit for partition must fail.

Partition Partition-Weight to long standing possession porting consolidation be given in chalking out lines of partition

classification of soil recorded at settlement-Not to be disregarded, Punjab Land Revenue Act (XYII of 1887), S. 118.

Partition Partition-Shamilat land-Mode of partition should be in accordance with land revenue payable by a shareholder or proportionate to area held by him-Sharat Wajibul Arz or agreement between co-sharers of estate-Deciding factor in partition of Shamilat.