Suit for Partition

Suit filed by petitioners/plaintiffs was rejected by Trial Court on the ground that earlier suit for declaration regarding same property was not decided

Validity

Right of partition is an independent right and cannot be connected with any previous suit even with regard to the same property and cannot be declared as barred by O. VII, R. 11, C.P.C.

Supreme Court set aside judgments and decrees passed by three Courts below and matter was remanded to Trial Court for decision afresh on merits

Appeal was allowed.

Petitioner / auction purchaser was bound to deposit remaining 80% amount within 07-days after the auction which he failed to do

Non-compliance of such mandatory provision entailed penal consequences

Deposit of remaining 80% amount within the period stipulated by Trial Court was of no use to petitioner / auction purchaser

No Court can deviate from mandatory provision of law, as act of Court derives force from the statute

When statute had not provided any leniency in such regard then Trial Court could not give any relaxation

Lower Appellate Court rightly allowed appeals of respondents

High Court in exercise of revisional jurisdiction declined to interfere in judgment passed by Lower Appellate Court, as petitioner / auction purchaser was unable to point out any illegality, irregularity or jurisdictional defect in judgment passed by Lower Appellate Court, which had been passed in accordance with law after due appreciation of the law on the subject

Revision was dismissed, in circumstances.

Passing of preliminary decree in partition suit under Punjab Partition of Immovable Property Act, 2012, (ACT) is not provided; therefore, without claiming mesne profit under the Act, the suit was not competent

Deposition of PW.1& PW.2 was based on hearsay, which had also rightly been disbelieved by the lower courts

Non-appearance of the petitioner himself in the witness box and not making deposition on oath also went against him

Courts below had rightly appreciated and evaluated evidence of the parties and had reached to a just conclusion, concurrently, that the petitioners had failed to prove their case by leading cogent, confidence inspiring and trustworthy evidence

Concurrent findings on record could not be disturbed in exercise of revisional jurisdiction under S. 115 of C.P.C

Revision petition was dismissed accordingly.

Claim for partition is a recurring cause of action and unless the division of the joint property had been finalized each party remains participant of the partition proceedings and has right to claim his share and that right is not lost.

Petitioners were aggrieved of refusal of respondent to vacate portion of suit property in her possession, in the light of preliminary decree passed by Trial Court

Plea raised by respondent was that she had retained possession in lieu of partition of agriculture land still to be partitioned

Trial Court and Lower Appellate Court declined to deliver possession to petitioners

Validity

Fact that agriculture land remained to be partitioned or sold had no co-relation to settlement and distribution of shares in relation to other properties that had formed part of partition suit

Preliminary decree was a final decree in relation to properties in relation to which respective shares stood distributed between co-sharers

Merely because it was a preliminary decree in relation to agriculture land that remained to be distributed and/or sold did not make such decree a preliminary decree in relation to properties, the distribution of which had already taken place and constituted a matter that required no further adjudication

High Court directed the respondent to hand over possession to petitioner and set aside orders passed by Trial Court and Lower Appellate Court

High Court declared that petitioners were entitled to receive rent from respondent to be determined by Executing Court for the period respondent declined handing over of the possession till such possession would be handed over

Revision was allowed, in circumstances.

Defendant/petitioner in written statement contended that half portion of the suit land was given to his wife as dower by his father/predecessor in interest of the plaintiffs and defendant

Petitioner/wife of defendant/ petitioner was not initially party to suit, however, she subsequently entered into the suit and adopted the same written statement submitted by her husband

Suit was decreed

Appeal of the petitioner was accepted and case was remanded with observation that decree be treated as preliminary

Held, that omission to verify the pleadings on oath or on solemn affirmation was merely a procedural defect and the same could be rectified at any stage of the proceedings

Petitioner neither submitted written statement which was verified on oath nor appeared in the witness box so as to depose on oath in support of her version

Courts below had rightly concluded that the petitioner had failed to prove her case by leading unimpeachable evidence

Nikahnama did not bear signatures of father/ predecessor in interest of the respondents (including husband of the petitioner)

Appellate Court ordered the decree to be treated as preliminary instead of final, whereas the findings recorded by Trial Court were kept intact

Trial Court misapprehended/misconceived the judgment passed by the Appellate Court and passed decree excluding half portion of the disputed property, but actually its prior decree had attained finality

Signatures of counsel for parties were obtained on the margin of the order sheet

Petitioners had given consent to proceed with the matter as per direction of Appellate Court, so she could not take a u-turn/other stance

Revision petition was dismissed accordingly.

Revenue officer not exercising the jurisdiction under Khyber Pakhtunkhwa Tenancy Act, 1950, was not a Revenue Court but he exercised limited powers within the contemplation of Khyber Pakhtunkhwa Land Revenue Act, 1967

Civil Procedure Code, 1908 was not applicable to partition proceedings under the Land Revenue Act, 1967

High Court observed that Civil Court could entertain a suit for partition with regard to an estate assessed to the payment of revenue wherein rights of joint owners should be ascertained and Court should direct such partition or separation to be made by the Collector

Civil Court had jurisdiction to entertain a suit for partition if joint property to be partitioned consisted of construction and landed property

Only forum for entertaining a suit for landed as well as constructed property jointly owned by the parties which had not been yet partitioned was the Civil Court

Civil Court could transmit a decree to the Collector for execution

Parties in the present suit, were joint owners

When parties were joint owners and only a single joint owner wanted to separate his share through official partition then his suit could not be dismissed

Preliminary decree should be passed after determining the shares of joint owners

If certain joint property was not included in a suit for partition then Court should permit a plaintiff through amendment in the plaint to include the remaining joint property in the same

Appellate Court while passing the impugned judgment and decree had committed material illegality and irregularity

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Revision was allowed, accordingly.

Plaint could not be rejected in piecemeal as concept of partial rejection of plaint was inapplicable to the provisions of O. VII, R. 11, C.P.C.

Pleadings could be partially struck out but plaint could not be rejected partially

Plaintiff in a suit was dominus litis who might choose persons against whom he did intend to litigate and he could not be compelled to sue a person against whom he did not seek any relief

If a necessary party was not impleaded then suit itself was liable to be dismissed

Defendant who had been deleted from the suit had purchased the suit land

If a person did purchase a land out of joint holding then he would become a co-owner in the holding along with other co-owners

If the purchaser had obtained any land from joint holding then such possession would be subject to the partition of Khata

Courts below while passing the impugned orders had erred in law and Committed material illegality

Impugned orders passed by the Courts below were set aside

Application filed under O. VII, R. 11, C.P.C. would be deemed to have been dismissed

Revision was allowed, in circumstances.

Consent decree was never an order of the Court but was an endorsement of the Court on whatever was liked by the parties to settle their dispute

Parties, in the present case, had agreed to seek partition of suit property through official of the Court in case suit property was found divisible

Once parties had agreed to such proposition that would mean that they had dropped any other possible dispute

Impugned order being a consent order was passed after exhausting all the procedural requirements for delivery of a final judgment on the dispute between the parties

Execution petition was maintainable in circumstances

Executing Court was bound to hear the parties' objection on execution petition if any and execute the decree if it was executable

Tenants, in a civil suit between the owners of the properties were not supposed to have their civil rights as tenant on the ground of being a lawful or otherwise as occupier of the premises

Status of tenant could not be better than the status of their landlord

Execution of a judgment and decree against the judgment-debtor was equally binding on the person claiming possession through judgment-debtor

Appeal was dismissed in circumstances.

Petitioner contended that the respondent/plaintiff had not deposited the court fee within a month as directed by Trial Court, so preliminary decree passed in his favour had automatically deemed to be rejected

Petitioner contended that the two courts below had wrongly dismissed his application for rejection of plaint of the respondent

Respondent contended that as the decree passed in his favour was preliminary, therefore, Trial Court was competent to extend prescribed time

Validity

Trial Court could direct the plaintiff to affix the court fee within a prescribed period at any stage of the suit and could pass a conditional decree, however, in the present case, the Trial Court had rendered its findings on the issue regarding the affixation of court fee but the same direction was omitted in the relief column as well as in the preliminary decree drawn accordingly

Case purely pertained to extension of period for deposit of required court fee

Order XX, R. 6, C.P.C., provided that the decree would agree with the judgment and shall specify clearly the relief granted or other determination of the suit but no such direction was rendered by Trial Court while drawing the decree in terms of O. XX, R. 7, C.P.C.

Plaint could not be rejected except where the relief claimed was under value and the plaintiff on being required by court to correct the valuation within a time to be fixed by the court, failed to do so

In the present case, time was fixed by the court for deposit of court fee, which was one month after the passing of the preliminary decree but the Trial Court had not corrected the valuation nor had specified the amount to be deposited by the respondent/plaintiff

Where the matter was not finally decided, the court while passing final decree had the jurisdiction to enlarge period for depositing the required court fee even if the time fixed already by the court, had expired

Court could not extend, enlarge or grant any further time for doing an act if it was specifically mentioned in the relevant statute in terms of S. 148, C.P.C.

Court could extend time prescribed by the court itself but the jurisdiction conferred upon a civil court in terms of S. 149, C.P.C., which related to court fee was exclusive jurisdiction to direct at any stage and allow any party to the suit to pay the whole or part of the court-fee as the case might be

No illegality or defect in jurisdiction in the impugned judgments were found

Constitutional petition was dismissed accordingly.

Plaintiff claimed that he had purchased and constructed the suit property jointly along with his brother, the defendant; therefore, he was entitled to own and possess half of the property

Trial Court dismissed the suit

Validity

Plaintiff had admitted non-existence of any agreement between him and the defendant prior to the purchase of the plot of the land about giving amount to the defendant for purchase of the plot; that he had no proof available with him with regard to handing over any amount to the defendant for purchase of the property and for construction of the house, alleging that the amounts in questions had been paid in cash; that he had no knowledge as to the mode of payment to the owner of the plot for the purchase; that he did not remember either the person who had signed the sale deed on behalf of the owner of the plot and the amount of consideration mentioned in the sale deed; that all documents including receipts, etc. (for purchase of the plot) had been kept by the defendant and not by him; that he had no document in his possession with regard to obtaining the loan from the House Building Finance Corporation for construction of the house, as file of the same had been maintained by the defendant; that he had no knowledge as to the name of the contractor who had constructed the property; that he also did not remember the different stages of construction as to which portion of the house had been constructed first; that all utility meters were in the name of the defendant and that he did not remember as to when the house had been rented out

Bank statement of the defendant had proved that the amount of the purchase consideration had been paid from his account, which fact had also been endorsed by the Bank Manager in his evidence

Receipts about the construction of the house were in the name of the defendant

Elder brother of both the parties had deposed that the property had been purchased by the defendant and the entire cost of the construction of the house had been borne by the defendant, and that defendant alone had supervised the construction of the house, and that the plaintiff had never stayed in the house

Defendant had deposed that he had purchased the plot in the joint name to show his love and affection towards his brother/plaintiff, and the plaintiff had not spent a single penny either for the purchase or for the construction of the property

Defendant had produced all the relevant documents to prove that the property had been in his exclusive use

Brother-in-law of the defendant had deposed that he had advanced certain amounts from time to time to the defendant for the construction of the house

Contractor, who had constructed the house, had deposed that he had started work on the instructions of the defendant alone, and the defendant had supervised the entire construction process, and that all the funds had been provided by the defendant

Plaintiff, in view of the said depositions and material available on the record, was only a benamidar of the defendant, as the entire purchase amount and the cost of the construction had been borne by the defendant

Impugned judgment and decree were, therefore, maintained

Appeal was dismissed in circumstances.

Trial Court directed the bailiff to put plaintiff back in possession of suit property from which she had been dispossessed

Contention of defendants was that injunctive relief granted by the Court could operate only for a period of six months

Validity

Injunctive relief was confirmed after an inter-parte hearing

Plaintiff was dispossessed from the suit property during the currency of injunctive order passed by the Trial Court

Trial Court did not commit any jurisdictional error by directing that plaintiff be handed over possession of the portion of suit property from which she was dispossessed

Injunctive order passed by the Trial Court had till date not been set aside

Alleged dispossession was within a period of six months of the confirmation of injunctive order

Trial Court was bound to restore the status quo ante by putting plaintiff back in possession of suit property

Act of dispossession would amount to over-reaching the process of law

Trial Court was bound to protect the rights of the parties as they existed on the date of filing of the suit and the grant of injunction

Section 151, C.P.C. could also be invoked to effectuate an order validly made by a Court of competent jurisdiction

When unlawful means were adopted by a party, it was responsibility of the Court to invoke S.151, C.P.C. to secure the ends of justice or to prevent abuse of process of Court

Defendants could not take shelter behind their own wrong which had been further accentuated by the creation of a tenancy

Jurisdiction to make restitution was inherent in the Court and could be exercised whenever the justice demanded

Revision was dismissed in limine.

Final decree had to be sought for execution of preliminary decree for delivery of possession of the share of each co-owner in the corpus of the undivided property.

Interim relief was granted to the extent of raising construction over the suit property till it was partitioned or six months whichever was earlier

Validity

Partition was the only solution for a co-owner to use and possess the exclusive ownership over a specific portion of land

Trial Court was directed to dispose of the present suit within six months

Revision was dismissed in circumstances.

Anything not specifically claimed in the pleadings could not be allowed to introduce in the evidence and if evidence was so recorded then same should be declared irrelevant

Written statement filed by the defendants was silent with regard to gift in their favour

Defendants had not asked for any permission for amendment with regard to such gift

Parties were bound by the averments made in the pleadings

Judgment could not be based upon the pleas not raised in the pleadings

Defendants had not availed the opportunity for better statement

Departure from pleadings could not be allowed

If statement of fact contained in the plaint was not specifically controverted in written statement and even an evasive answer was given then same would amount to admission

Plea could not be raised in evidence for not having been raised in written statement

Principle of secundum allegata et probata was applicable to the present case

Nothing was on record with regard to private partition between the parties

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

Revision was allowed in circumstances.

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.

Impugned orders passed by the courts below were set aside which were passed without lawful authority having no legal effect

Application for drawing up of decree-sheet was allowed

Constitutional petition was accepted in circumstances.

During pendency of suit both the parties settled their dispute and agreed to the partition of suit property and suit was decreed

Contention of judgment debtor was that decree was not final and same could not be executed

Validity

Rights of the parties in the suit property had already been settled

No controversy remained to be adjudicated upon

When parties had agreed to partition the property and their respective shares had already been settled, then decree from such settlement would be final

Decree holder had refused to sell out his share and he could not be deprived of his share in the suit property

Execution petition was allowed in circumstances

Official Assignee was appointed to supervise partition of property in terms of proposal of Architect and he was directed to make assure that possession of share to the decree holder was handed over accordingly.

Suit for partition in respect of disputed property, instituted before the Trial Court was valued at Rs.230 for purpose of jurisdiction and Rs.15 for the purpose of court fee, therefore in terms of S.18 of the West Pakistan Civil Courts Ordinance, 1962, such valuation disclosed in the plaint was to be considered the value of the suit property for determining the forum of appeal qua pecuniary jurisdiction of the Appellate Court.

No execution proceedings were initiated for enforcement of said judgment and decree within the prescribed period of limitation, judgment and decree passed in the previous suit, therefore, was not enforceable

Plaintiff had prayed for partition of suit property according to his share

Suit property was still joint between the parties

No previous decree for partition existed in favour of one of the plaintiffs

Trial Court had erred in facts as well as law while dismissing the present suit

Impugned order passed by the Trial Court was set aside and case was remanded for decision on merits in accordance with law

Appeal was accepted in circumstances.

Nothing was on record to show that plaintiff had ever acceded to the valuation of joint property as assessed by the local commissioner

Plaintiff did not agree to the value of suit property as assessed by the local commission i.e. Rs.25,00,000 rather he offered to purchase the same for a sum of Rs. 50,00,000 but defendants did not agree to his offer

Court had inherent jurisdiction to adopt such means as might be equitable including sale of joint property when same was not capable of convenient division

Such order of sale had to be executed as a decree

Trial Court had rightly exercised jurisdiction for putting the joint property onto sale through auction as parties could not agree on the valuation of the same

Defendants had right to apply the Trial Court for leave to purchase the plaintiff's share which would be determined by the said court

No jurisdictional error or legal infirmity had been pointed out in the impugned order

Constitutional petition was dismissed in circumstances.

Preliminary decree passed by the Trial Court determining the shares of parties and identifying the joint properties was in accordance with law which was maintained

Local commission would see the partiability or otherwise of the joint properties according to shares of legal heirs of the deceased

Appeal was dismissed in circumstances.

Defendants filed application for return of plaint to the plaintiff for presentation in the court having pecuniary jurisdiction but Trial Court rejected the same (suo motu) observing that the value of property was much more than the suit valued by the plaintiff

Validity

Plaintiff and defendants were legal heirs of the deceased and were co-sharers in his property

Every co-sharer would be deemed to be in possession of each and every inch of the property whether such possession was physical or constructive

Plaintiff would be deemed to be in possession of the property

Plaintiff had asked for separation of his share after demarcation from other co-sharers

Plaint as well as appeal arising out of partition suit was chargeable with fixed court fee of Rs.10/- only

Plaint did not require to be affixed with an ad valorem court fee according to value and share of the plaintiff

Trial Court had rejected the plaint straightaway without determining the proper value and without providing reasonable time and opportunity to make deficiency good within time which was contrary to the provisions of O.VII, R.11, C.P.C.

Impugned orders passed by the courts below were not sustainable in law which were set aside

Matter was remanded to the Trial Court for proceeding on merits in accordance with law.

Plaint as well as appeal arising out of partition suit was chargeable with fixed court fee of Rs.10/- only.

Plaintiff filed suit for partition wherein she moved an application for preliminary decree for possession and mesne profits which was dismissed however, Trial Court directed defendant to furnish surety amount

Defendant filed application for reduction of the same which was dismissed

Validity

Impugned order was passed with the consent of parties

Defendant was estopped to challenge the validity of said order on the principle of estoppel

Defendant while filing application for reduction of surety amount was satisfied with the nature of order but was aggrieved of the quantum of surety amount

Defendant could not be allowed to approbate and reprobate

No misexercise of jurisdiction nor any illegality, irregularity, perversity or infirmity was found in the impugned order

Revision was dismissed in circumstances.

Final decree was passed in the year 1989 and same could not be satisfied or had achieved its object due to unnecessary filing of objection petition

Executing Court proceeded with the matter in accordance with law

Preliminary decree was passed in the year 1968 which could not be concluded even after passing of more than four decades

Decree-holders had been involved in a prolonged unnecessary litigation on one pretext or the other

Claim of defendants seemed to be for ulterior consideration

Executing Court had handed over possession to the decree-holders after considering the objections taken by the defendants with regard to their share

No infirmity or irregularity had been found in the impugned orders of both the courts below; there should be an end to the litigation but defendants had continued to abuse and misuse the process of the courts with impunity

Defendants had no case on merits and deserved no leniency and were liable to be burdened with costs which would minimize the agonies of the decree-holders and also the back-log crises for the courts

Revision was dismissed with costs of Rs. 15,000 which should be paid by the defendants to the decree-holders.

Judgment debtors sought fresh determination of shares from Executing Court, on the plea that plaintiffs and their father had third brother who died issueless

Validity

Judgment debtors failed to take such plea either in written statement or during proceedings before decree, therefore, they could not take such plea during execution proceedings, as such plea had not been taken before Trial Court and decree had become final

Executing Court could not extend its jurisdiction to go behind decree except where decree was silent as to which property was subject matter of execution

Executing Court could look into judgment, in application under S.47, C.P.C., in order to find out that property brought for satisfaction of decree actually belonged to judgment debtors but could not entertain application relating to dispute which might change and alter terms of decree

Executing Court could neither go behind the decree nor it had jurisdiction to re-determine liability of any party or reconsider law for such purpose

High Court declined to interfere in the order and judgments passed by two courts below, as no jurisdictional error or material irregularity had been committed

Revision was dismissed in circumstances.

Under O.XVIII, R.1, C.P.C. the party on whom onus to prove a particular issue had been placed, had the right to begin and complete evidence on such issue whereafter the other party could produce his evidence in rebuttal

Defendant did not cross-examine the plaintiff's witness whose evidence had been recorded 5 years ago

Plaintiff's evidence was being recorded, defendant could produce his evidence after completion of plaintiff's evidence

Where law required an act to be done in a particular way, that act had to be done in that particular way

Witness could not be confronted with certified copies of a document without comparing such copies with the original document

Bank had no record of the documents in question

No link of the person sought to be produced as secondary evidence with the predecessor in interest of plaintiff was shown

Where scribe of a document was not available had died his signature could be proved by producing any other person who was acquainted with signature/handwriting of the deceased

Defendant could produce any person in evidence with permission of the court if name of such person had not been mentioned in the list of witnesses on his turn

Constitutional petition was dismissed.

High Court directed Official Assignee to seal godown immediately and ensure compliance of earlier order pending determination of right of plaintiffs in income generated from business of their deceased father

Compliance report of sealing godown in question should be submitted by Official Assignee

Application was disposed of accordingly.

Application for impleading two new plaintiffs (applicants) was allowed by Appellate Court on ground that gift deed for suit property had been executed in their favour

Validity

Since gift deed was executed during pendency of suit between parties, the ultimate fate of the gift deed depended upon the final outcome of the lis between the parties and prior to that, applicants could not claim that they were necessary parties

Impugned order of Appellate Court was set aside

Revision was allowed, in circumstances.

Plaintiffs who claimed themselves to be joint owners of suit-land filed suit in representative capacity, praying that suit-land be declared as joint property and be partitioned between the joint owners; so that they could be able to get their respective shares

Defendants resisted the suit claiming that from the last twenty years they were in possession of 1/4th of the suit-land, which devolved on them as their share during course of private partition

Defendants raised objection with regard to jurisdiction of the civil court to decide the matter

Plaintiff claimed relief of partition, but the parties were asserted to be the shareholders with no denial of title

Suit property which was shown to be jointly owned, not only by the parties to the suit, but by other shareholders was Shamilat

Relief of partition, in view of pleadings of the parties, could only be granted while adopting the mode and observing the procedure as provided in West Pakistan Land Revenue Act, 1967

Party interested in partition of his share in suit property, had to make an application for partition of the land to a Revenue Officer as per provisions of S.135 of West Pakistan Land Revenue Act, 1967

Section 141 of West Pakistan Land Revenue Act, 1967 had described the procedure for disposal of the questions as to the title in the property

Matters pertaining to partition of landed property, exclusively vested with Revenue Officer, in circumstances; and complete bar on jurisdiction of civil courts as provided in S.172 of West Pakistan Land Revenue Act, 1967 would be in the way

Question of title during course of partition, could only be decided by a civil court under provisions of S.145 of West Pakistan Land Revenue Act, 1967, otherwise it lacked jurisdiction in the matter

Trial/civil court, in circumstances had no jurisdiction in the matter

Judgment and decree passed by Majlis-e-Shoora/Trial Court, having no legal effect, were set aside and suit filed by the plaintiffs was dismissed.

Preliminary decree for partition was passed whereafter a local commission was appointed, before whom the parties compromised, and a final decree was passed by the Trial Court which was upheld by the Appellate Court

Contention of the defendant was that he did not consent to any compromise and that the disputed property had already been partitioned long ago

Validity

Contention was that the property had already been partitioned and therefore, impugned orders of the courts below were not sustainable, could not be agitated in view of the fact that the defendant had not assailed the preliminary decree

Party to a suit for partition, if it does not assail the preliminary decree, then in view of S.97 of the C.P.C., it could not contend that the property was not divisible or the shares as determined in the preliminary decrees were not correct or the private partition had already taken place

Defendant had not at any stage agitated that he was not present at the time of the proceedings conducted by the local commission and he had agreed to the proposed partition

Mode of partition as approved by the courts below was equitable

Revision was dismissed.

Revision against order of Appellate Court remanding case to the Trial Court on the ground that legal heirs of deceased joint-owner of suit property were not impleaded in the original suit

Validity

Order of Appellate Court was in accordance with law and no illegality having been found in the same, revision was dismissed.

Local Commissioner found suit property as indivisible and recommended that property be put to sale and parties given their respective shares from the sale proceeds

When process of sale of suit property through open auction was initiated, parties arrived at a compromise and it was settled that one of the co-sharers would pay the entire sale price of the suit property to the other co-sharers in the property within three months, in consideration whereof the other co-sharers undertook to vacate the property in dispute and hand over the vacant possession to the offering co-sharer

Said co-sharer could not deposit the agreed sale amount within stipulated period of three months; but on his application, period to deposit amount was extended and he deposited the amount in the extended period

Respondents (other co-sharers) received their respective shares, while share of the petitioner was deposited in the Treasury under the order of the court

Contention of the petitioner was that compromise effected between the parties was not binding on him as the consideration was not paid by the respondent co-sharer in time; that petitioner in application under S.3 of Partition Act, 1893 had offered enhanced price to all the other share-holders; that application by respondent co-sharer for enlargement of time was wrongly accepted by the Trial Court behind the petitioner's back and that he had been condemned unheard

Validity

Compromise in question was effected between the parties as a consequence of the earlier application of the petitioner filed under Ss.3 & 4 of the Partition Act, 1893

Question of estoppel would arise in the case but counsel for the petitioner had not been able to satisfy the court on that score

Petitioner was also unable to show or point out any illegality or material irregularity in the impugned orders of the courts below

Concurrent findings of fact of the courts below against the petitioner, could not be interfered with by High Court in revision, when the petitioner appeared to be merely delaying the matter.

Claim of the divorced wife of deceased was that she was the owner to the extent of 1/2 share in the suit house which was the legacy of her late husband; and that she was necessary party in the lis pending in the court between the parties

Lady who had obtained Khula' from her husband had claimed that fact of Khula' would never deprive her from her right as she had not specifically abandoned her share in the suit house

Contention of counsel for the plaintiff was that the lady had waived her rights of 1/2 share in the suit house at the time she got the decree for dissolution of marriage on the basis of Khula' and that she could not claim the same

Principle of Khula' was interpreted in the light of the dictates of Holy Qur'an and Sunnah to the extent and effect that when married parties disagreed and were apprehensive that they could not observe the bonds prescribed by Divine Law, woman could release herself from the marital tie by giving up some property in consideration of Khula' by the husband

In the present case, deed through which half of the share of the suit house was given to the lady, had not been rescinded on the day on which the Khula' was obtained by her from her husband

Order of the Family Court had also not specifically mentioned as to what were those privileges which were bestowed upon the lady by her husband and as to how much were to be taken back in the exchange of the Khula'

Petitioner, in circumstances was still the owner to the extent of 1/2 share on behalf of her late husband; and it would yet to be determined by the Trial Court as to whether she was entitled to the half of her share in the legacy of her late husband or otherwise

Lady should be impleaded as party in the lis pending between other legal heirs of the deceased

Judgments and orders of the courts below were set aside, application of the petitioner for her impleading as party to the suit was allowed and she should be entered as defendant in the suit.

Defendant contended that the original decree had become inexecutable and that issuance of the warrant of possession was without jurisdiction; furthermore, requisite stamps were not affixed on the decree

Plaintiff contended that the issues involved in the petition had been settled by the Supreme Court and that the revision petition was tainted with mala fides and was only a ploy to delay execution

Validity-By final judgment and decree plaintiff was directed to transfer the said land to the petitioners and other defendants in shares mentioned therein upon the payment of compensation to be determined by Revenue Authorities within thirty days but defendants failed to make the payment-High Court affirmed the order of the executing court holding that since the defendant failed to make payment within stipulated period, plaintiff was entitled to warrant of possession

Said order/matter was unsuccessfully challenged before the Supreme Court, thus the question of entitlement of plaintiff to warrant of possession was settled by the High Court not once but twice

Order, therefore, had attained finality after being challenged unsuccessfully right up to the Supreme Court

Same arguments were re-agitated again and again by the defendants' side in order to frustrate the execution

Warrant of possession was rightly issued by the executing court inasmuch as, the original order in that behalf had attained finality and the matter was affirmed by High Court twice-By issuing warrant of possession the executing court had acted in accordance with the judgment and decree and had not trangressed its jurisdiction

Revision was found by the High Court not only misconceived but tantamount to abuse the process of the courts which was dismissed accordingly.

Local Commissioner was appointed, with consent of parties who submitted his report proposing three modes of partition as given in three figures separately drawn

Trial Court decreed the suit according to one figure which was challenged by the plaintiff through appeal, which appeal was accepted by the Appellate Court while setting aside the judgment and decree passed by the Trial Court and suit was decreed according to another figure

Validity

No dispute between the parties that four shares were owned by the plaintiff, whereas defendants were owners of two shares

According to the figure, which was approved by the Appellate Court, from the front, four feet had fallen to the share of the plaintiff

Such was the only equitable distribution

Parties were real brothers

Had they shown soft corner for each other, any other settlement could be arrived at between them

No illegality having been found in the impugned judgment, revision was dismissed.

Minute perusal of said document revealed that said document pertained to some other property and the same had no nexus with the property in dispute

Trial Court, Appellate Court as well as the High Court, after taking into consideration the oral as well as documentary evidence of the parties, had decreed the suit

Concurrent findings of fact by the three courts, could not be interfered with in absence of any jurisdictional error or legal defect or misreading or non-reading of evidence.

Suit for partition of property was decreed in favour of the plaintiff, lower appellate Court accepted the appeal and while framing two additional issues remanded the case for fresh decision

Plea raised by the plaintiff was that defendants in their written statement had taken up the plea that the father of the parties had paid a substantial amount to the plaintiff as her would be share in his estate and she had accordingly relinquished such share, but the trial Court had failed to frame any issue on such point

Validity

Trial Court, while giving its finding on the said issue had dealt with the question/the plea of the defendants about the payment of amount by the father of the plaintiff and had found that the facts had not been proved by the defendants

Defendants even at no point of time during the trial had asked for the framing of any issue in that behalf, when the decree was passed against them, in the memo. of appeal it was not a ground that on account of non-framing of the said issue any prejudice had been caused

Defendants had also led evidence deeming it to be the issue covering their plea about the payment of amount to the plaintiff and alleged relinquishment of her share

Revision was allowed in circumstances.

No proof of any gift ever having been made by the deceased father in favour of the respondent (son); essentials of gift were conspicuously missing in the transactions as well; only for the reason that bald claim of the gift had been made by the respondent in defence without proving or substantiating the transactions to be of that nature, shall not take the case out of the scope and realm of the "administration suit" or the "suit for partition", which could be said to be a suit of composite nature, therefore, in the circumstances, it was not necessary for the appellants to have first asked for the relief of declaration to challenge the ostensible ownership of the respondent qua the properties in question

Appellants had brought a family settlement envisaging in unequivocal and in unambiguous terms the acknowledgment by the parties as to what were the properties, which formed part of estate left by the deceased father; respondent himself had brought on record same document in original

,Plea of respondent that the said document was got executed from him on account of any coercion was absolutely not spelt out from any independent evidence produced by him, rather there was a vital and visible contradiction and shifting of the stance set out in the written statement and his deposition

Such was a complete departure from the pleadings of the respondent

Respondent was a highly educated person, thus, when he had admitted the, execution of the settlement, he could not take up the plea that he was not aware of the contents of the document, besides the story propounded in the statement that the document was got signed the next month after the burial of the father before boarding the plane was beyond the scope and contrary to his pleadings, which had to be ignored by the court

Execution of family settlement was admitted by respondent but he wanted to avoid the effects of the contents ,pf documents on any ground such as lack of free consent etc.

Heavy burden thus, lay on the respondent to prove his version, which burden had not been discharged by him rather from his contradictory stance and also for the reasons that he himself had brought on the record the said document, thus, he shall be bound by the acknowledgment and the admission about the estate of his father given therein

Trial Court had glaringly overlooked such important piece of evidence and had disallowed the suit only for the reasons that the properties in question were ostensibly in the name of respondent

Such approach of Trial court was absolutely against the law because the production of the family settlement in fact had knocked the bottom out of respondent's case about the alleged gift as he had claimed

High Court set aside the judgment and decree of the Trial Court through which the. relief regarding certain properties/assets was refused to the appellants and upheld it to the extent the relief was allowed to them, the preliminary decree for administration and partition vis-a-vis the immovable properties as also for the Bank accounts under the head movable assets, if the accounts were in the name of deceased father, as the same had not been denied in the written statement was also passed in favour of appellants and against the respondent.

Suit for partition of house concurrently having been decreed by the Trial Court and Appellate Court, defendant had assailed said concurrent findings in revision before the High Court

Plea of defendant was that house in question belonged to his father and that he having not given said house in dower to the plaintiff, she was not entitled to the decree through partition

Question involved in the case was whether a father could give dower in favour of his daughter-in-law on the eve of marriage of his son

Held that father-in-law could give a dower of movable as well as immovable property on the eve of his son's marriage particularly when Nikahnama contained the stipulation regarding the dower with full particular in shape of boundaries of the said house

Said Nikahnama had also been thumb impressed by the father of defendant

Document in question had been fully proved in the record of the case

Two courts below had appreciated the evidence on record and after "scanning the same had passed the decree in favour of plaintiff

No misreading or non-reading of evidence had been pointed out

Judgments and decrees of the Trial Court as well as that of Appellate Court below were strictly in accordance with the established principle of appreciation of evidence, which called for no interference.

Site plan prepared by Architect with consent of parties bifurcated share of each share-holder-No difference between parties as to quantum of area to be acquired by each of them and how such partition was to be given effect to between them

Taking over possession of property by parties without having any formal wall in between them

Defendant admitted to be in possession of more area than his due share

Dispute between parties arose over construction of wall

High Court appointed Commissioner to enforce settlement arrived at between parties in terms of such agreement and partition deed.

When a party fails in establishing its claim, but one of the opposing parties has admitted such claim then the party admitting the claim has to honour its admission to the extent of his share in the property and the party claiming the share would become entitled to claim its shares in the property on the basis of admission by the other party only to the extent of the shares which it held in the property.

Defendant asserting that suit was for partial partition for mother of plaintiffs whose property they had inherited owned another residential house

Plaintiffs though asserted that their mother did not own any other property, yet material on record showed that defendant's objection, of partial partition might gain prominence

Sufficient evidence was not available on record for a final determination on that point

Deficiency of material should not defeat ends of justice

Lower Courts having not adverted to evidence on record relating to partial partition, case was remanded for collecting required material from parties and deciding afresh issue relating to partial partition.

Plea that "Thara" in front of shop was not partible and that petitioner had got lesser share of "Thara" than his entitlement

Site plan showed that failure to partition of "Thara" would have rendered partition of the shop to the extent of respondents' share, unpractical-Without an opening and approach provided by the "Thara", respondent could not have utilised his part of the divided shop

Petitioner's plea that nothing could be constructed upon the Thara did not affect the partition

Petitioner's plea regarding lesser share of "Thara" was not taken before High Court and same needed inquiry into facts

No justification was found to interfere with impugned judgment of High Court

Leave to appeal was refused in circumstances.

Art. 185(3)-Suit for pre-emption-Trial Court dismissing suit on ground that registered document made basis of suit was not a sale transaction but a gift deed-High Court in revision restoring order of trial Court-No reasons shown to doubt contents of registered deed which in explicit terms conveyed property as gift to donor's nephews Leave to appeal refused.

[Evidence]

O. I, r. 10-Partition, suit for-Parties to suit-Heirs of necessary parties-Can always be added unless ouster or adverse possession clearly established against them.

O. I, r. 10, read with O. XXII, r. 9-Suit for partition-Distinct features-Cause of action for partition suit, always recurring-Such a suit can be brought even after abatement of a previous suit-Substitution of heirs of one of deceased co-sharers not sought within period of limitation-Court in such a ease can and ought to invoke its power under O. I, r. 10 and allow heirs of deceased to be added as parties.

Sch. II, Art. 17 (vi)-Suit for partition-"Physical" possession of property not necessary to attract application of Art. 17 (vi)-Allegation in plaint of "actual" or "constructive" possession sufficient-Determination of court fee-Courts to see nature of cause of action and relief claimed.

Art. 142-Suit for partition Plaintiff attaining majority in 1930, and filing partition suit in May 1950, basing his claim on title and dispossession by defendant Possession of plaintiff within 12 years not proved-Suit, held, was governed by Art. 142 and therefore barred by time.