PARTITION SUITS AND ITS METHODOLOGY
By
ABDUL ZAKIR TAREEN
Advocate,
High Court,
In Courts of
In partition
suits there is no loser and both the parties are to be called winner but if the
possession of the property is in the hands of tress-passer, then he can be
loser of partition suit.
Partition is
recognized by the legal maxim "Nemo
in Communione potest invitus detineri", no
one can be kept in co-proprietorship against his will. Partition is merely an arrangement
whereby co-sharers having undivided interest in joint properties take by arrangements
specific properties in lieu of their shares.
For partition
suits the property can be divided in three types:
(i) Pure Agricultural Properties,
(ii) Agricultural and Constructed mixed
properties, and
(iii) Pure
Constructed Properties (in the shape of houses, shops, markets and etc).
Undoubtedly
relief for partition in respect of agricultural properties can be sought from
Revenue Officer under Chapter XI Section 135 and other relevant sections of
this chapter.
Similarly if the
property subject of partition is partly agricultural and partly constructed,
then as per law laid down by the Superior Courts, it will be analyzed that
whether which type of property has a major portion, if agricultural then
Revenue Courts will be approached, otherwise relief for partition will be
obtained from Ordinary Civil Courts of Law.
So far as pure
constructed properties are concerned, they can be got divided from ordinary civil
Courts through a suit for partition under the Partition Act, 1893.
PRE-CAUTIONS
IN PARTITION SUITS:
(i) (JURISDICTION):
Case
must be filed in the appropriate Court of jurisdiction. While assessing the
question of jurisdiction, first of all territorial jurisdiction should be
ascertained and the suit for partition in respect of immovable property must be
filed having regard to Sections 16, 17 and 18 of the Civil Procedure Code, and ordinarily
it is to be filed in that Court within the local limits of whose jurisdiction,
the immovable property is situated.
Secondly,
subject matter jurisdiction must be assessed as highlighted above, suits in
respect of pure agricultural property or major portion of agricultural property
is to be filed in Revenue Courts, and regarding constructed property or major
portion of constructed property is to be filed in Civil Courts. In case titled:
Qamar Sultan Vs Mst. Bibi Sufaidan,
reported in 2012 SCMR 695, it was held that, "Jurisdiction in respect of
partition of agricultural property and to grant relief would lay with the
revenue Court".
While dealing with the matter of jurisdiction the Court should have
to take great care for deciding that whether the suit property is an
agricultural one or constructed/commercial. In case titled: Sher Ahmad Khan Vs Sardar Khan, reported
in 2008 PLD 97 Peshawar, it was held that, "if the land was agricultural,
then the partition of the same was exclusively amenable to the jurisdiction of
the Revenue Court and the jurisdiction of the Civil Court in view of S. 172,
West Pakistan Land Revenue Act, 1967 was barred which proposition, however, was
subject to one exception that if the agricultural land would lose its character
and would become building site or commercial area, then the civil Court would
have jurisdiction to entertain the suit with respect to its partition. Whether
the land or its major portion was covered by abadi or the same was exclusively
agricultural land, was a spot related question, which could be determined by
the Trial Court after the appointment of a local commission who, after visiting
the spot, would be in a position to determine the nature of the property".
In case
titled: Jamal ud Din Vs Haji Gul Khan,
reported in 2012 CLC 1353 Quetta, the august superior Courts provided a
procedure for preferring the matter of partition to a Revenue Court and held
that, "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
provision of S. 135 of West Pakistan Land Revenue Act, 1967".
The
Revenue Officer while dealing with the partition of the property could decide
only question of title in property to be partitioned while acting as a civil Court
of competent jurisdiction, but could not decide all other questions falling
within jurisdiction of
Revenue
Officer can decide matter of title in the immovable property and if he thinks
fit, then he can sent the same matter to the
(ii) (PARTIES).
All
Co-sharers in the joint properties are to be arrayed as a party to the
partition case and no name should be left from impleadment, in order to save
the suit from the plea of non-joinder.
In case
titled: Syed Ain Ullah vs Dilber and
others, reported in 2013 MLD 708 Baluchistan, it was held that,
"dismissal of suit on the basis of non-joinder of a necessary party was an
erroneous decision as under Order I Rule 9, CPC, no suit shall be defeated by
the reason of mis-joinder or non-joinder of parties and the trial Court was
empowered to implead a person to the proceedings who it deemed to be necessary
for determination of matter in issue".
In case
titled: Muhammad Younas Sheikh Vs Corex
enterprises and another, reported in 2007 MLD 508 Karachi, it was held
that, "Suit would not be defeated by reason of mis-joinder or non-joinder
of parties and the Court could deal with the matter in controversy so far as
regarded the rights and interests of the parties actually before it".
Similar
guideline is also provided in the below mentioned rulings of superior Courts
that mis-joinder or non-joinder is not fatal to the suit, those judgments are
as under:
a. 2011 YLR 1999
c. 2010 MLD 1596
Keeping
in mind the afore-referred verdicts of the august superior Courts, though
mis-joinder or non-joinder of parties is not fatal to the civil litigation and
the trial Court is supposed to determine the issue even in those suits in which
this defect is present. But at the same time the law advises that all parties
having an interest in the subject matter of the suit should be arrayed as a
party either in the panel of plaintiffs or defendants. So
great care should be made that in suit for possession through partition all the
co-sharers/Khata shareek are joined as a party.
(iii) (FULL PARTITION SUIT IS TO BE BROUGHT AND
NOT FOR PARTIAL PARTITION).
All properties which are in joint
venture of the parties are to be included in the partition suit, in order to
save the suit from the question of Partial Partition.
In case titled: Noor Muhammad and others Vs Allah Ditta and others, reported in PLD
2009 Supreme Court 198 citation (C), the august Apex Court held that,
"Co-owner in a joint property was not entitled without assent or acquisance
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".
In case titled: Ghulam Rasool and another Vs Muhammad Khalid and others, reported
in 2006 YLR 2289 Lahore, the august Court held that, "party opting to come
for partition was not permitted to pick and choose and to have share in
valuable parts of the joint holdings by leaving out its parties with lesser
value, suit found to be for partial partition was not maintainable".
In case titled: Chaudhary Ghulam Abbas Vs Barkat Ali and another, reported in 1999
YLR 2190 Lahore citation (b), the Hon'ble Court held that, "partition of
holding could not be affected without including the entire land of property,
partial partition was bad in law".
(iv) (NO PRIOR PARTITION OR PRIVATE
SETTLEMENT/KHANGI TAQSEEM).
The
suit must be in respect of those joint properties in respect of which neither
any regular partition was made priorly nor the properties
should have been divided through private settlement/Khangi Taqseem.
To
prove private partition, party should have to produce/exhibit order of partition
or copy of Roznamcha Waqiati showing delivery of possession or Tatimma made in
favour of co-sharer/party.
The
fact of Private partition is always considered in the course of litigation, as such sanctity is available to the same. In a
case titled: Irshad alieas Abdul Rahim Vs
Ashiq Hussain, reported in 2007 PLD 421 Karachi, the Hon'ble Court held
that, "Private arrangement and partition deserves the same sanctity which
a lawful contract deserves and should not be interfered within any legal proceedings
unless the private arrangement or partition is otherwise not legally
permissible".
If a
dispute between the co-sharers arises in a situation when private partition has
been arrived between them, but they have no formal partition deed in their hands
or it has been lost, then in such like circumstances, the possession of respective
party would be of great importance in determining the real issue of private
partition. In case titled: Naveed Ahmad
Vs Iqbal Begum, reported in 2006 YLR 2341
—Absence
of formal partition deed—Question of possession would assume critical
significance".
Private partition should be proved
independently.
(v) (CO-SHARERSHIP).
It is
to be established that the claimant is co-sharer in the property subject of partition.
In case
titled: Gulzar Begum Vs Mehboob Hussain
alias Mehboob Khan, reported in 2012 YLR 809 High Court AJK, the Hon'ble Court
held that, "Possession on the said land could not be distributed till
partition of the same in accordance with law was not made".
In
another case titled: Muhammad Ismail Vs
Ghulam Sarwar, reported in 2008 YLR 420 Lahore, the remedy was given to a
co-sharer who desired to get possession of his share in an undivided property
and it is held that, ''only manner in which the plaintiffs could get possession
was by filing a suit for partition and separate possession".
Sometimes
a question arises that whether a co-sharer can sell his share in the joint
khata or not. This question is resolved by the august Lahore High Court in case
titled: Abdul Ghaffar Vs Waqas Hafeez,
reported in 2010 CLC 285 Lahore, it was held by the august Court that,
"Co-sharer in possession in a khata has a right to alienate a specific
piece of land in his possession and the transferee acquires the same rights as
the transferor".
It is
the basic right of each and every co-sharer that he can claim partition of the
joint property at any time and there is no limitation against such claim. This
preposition has been set by worthy Supreme Court of Pakistan in case of Muhammad
Rafiq, reported in 2004 SCMR 1036 Supreme Court, wherein it is held that,
"Partition could be claimed by any of the joint owners during currency of
joint ownership without limitation of any period in that behalf, so long as his
right was not denied".
In case
titled: Ashiq Hussain Vs Prof. Muhammad
Aslam, reported in 2004 MLD 1844
TRIAL OF PARTITION BY CIVIL COURT:
In partition
suits ordinarily the civil Courts bifurcate the claim
into two rounds/stages:
(a) First
round/stage is finalized on preliminary decree of the partition suits or if some
flaws highlighted here-in-above are involved, then it is dismissed.
In the
preliminary round of litigation of partition suits, the trial Court mainly
checked the question of jurisdiction, the entitlement/co-sharership of the
parties, and other merits of the case and if the case is made out by the
claimant, then in this round of litigation the Court determines the shares of
the parties in joint property.
(b) Second
round/stage is called final decree proceedings. In this round application for
the grant of final decree is filed by the decree holder, on the basis of which issues
notice to the respondents, and if they contest the same, they file reply. The Court
after hearing the parties appoints a local commission under Section 75 read
with order 26 of CPC for determination of mode of partition. The commission as
per directions of the Court visits the property subject of partition and
examines it, whether it is partitionable or not. If it is not partitionable
then the local commissioner evaluate the market value
of the decretal property and thereafter he submits his report. The Court passes
order of sale of decretal property and then passes order of division of
proceeds of sale between the parties in accordance with their determine shares.
The report of
local commissioner in determining the actual position of the property sought to
be partitioned is of much importance, as the same can help the Court for
determining the fact that whether the property is partitionable or not and if
partitionable then what should be the criteria for its partition.
If the property
is partitionable then the local commission in the presence of the parties and
record keeper of the property, if any, suggests the mode of partition. He
prepares a sketch/map of the spot. Legally speaking the local commission
keeping in mind the possession of each party, their shares, the valuable and
priceless portions of the property, the construction if any, suggests the mode
of partition keeping in mind this notion that every co-sharer must received the
constructed portion, valuable and priceless portion as that all them are
equally accommodated. Thereafter, the local commission submits its report, the Court
invites the objections if any, of the parties, examine the local commission, if
necessary and either confirmed or set aside the commission report. If it is set
aside, then the Court appoints another commission with the same directions and
work, otherwise in case of confirmation of the commission report, the Court
passes final decree.
Thereafter, the
decree holder brings an execution application for getting possession on the
spot in accordance with the final decree.
It also
pertinent to mention that the outcome of first round of partition suit i.e.
preliminary decree is always subject to appeal, then revision or second appeal,
and finally it is also challengeable before the Supreme Court in its appellate
jurisdiction envisaged under Article 185 of the Constitution. Similarly the
final decree if the parties so desires, can be
challenged through the same process, appeal, revision/second appeal and appeal
under Article 185 of the Constitution, and the last stage is the execution as
mentioned above.
TO GET REMEDY IN CASES OF PARTITION IS TIME CONSUMING PROCESS:
A huge number of
suits for partition are pending before different Civil Courts of Pakistan and a
great number of civil appeals, civil revision and CPLA are pending before
District Courts, High Courts and Supreme Court of Pakistan. As observed above, that as there is no direct/automatic mechanism for
partition/division of immovable properties except the litigation, a large
number of people are making visits of different Courts for getting
relief. It is also observed that even a suit for partition take great time in
civil Court, if we roughly calculate it takes:
(i) Six years in civil/Trial Court;
(ii) Two years in
(iii) Six years in
(iv) Six years in Supreme Court of Pakistan.
Meaning thereby
a partition suit takes minimum Twenty years. It must be kept in mind that in
partition suits there is no concept of looser, both the parties if found
co-owners, get relief and except the tress-passer both the parties are
accommodated by the Court. But what happened practically, a partition suit is
brought and the same is decided but at the end of the day it is defeated due to
the below mentioned flaws:
i. (Jurisdiction).
ii. (Non-joinder).
iii. (Partial partition).
iv. (Prior partition or private
settlement/Khangi Taqseem).
v. (No Co-sharership).
It is need of hour that the
august Supreme Court of Pakistan like guidelines provided for rent cases, in
case titled: Barkat Ali Vs Muhammad Ihsan, etc, reported in 2000 SCMR 556, also
provides guidelines for partition suits and to declare it necessary that some
proforma's prepared by the Supreme Court of Pakistan are to be made available
with the partition suit at the time of its institution and these proforma must
be filled by the counsel of the plaintiffs, signed by him and also by the
plaintiffs. These proforma must relate to the issues mentioned below:
(i) The Court has got the jurisdiction,
(ii) All the co-sharers and necessary parties
are impleaded,
(iii) The suit
is regarding whole property and not for a particular portion,
(iv) There is no prior regular or private partition and
(v) The
plaintiffs are co-sharers in the property subject of partition and there due
share, if determined and known should be highlighted.
This effort will
surely minimize the agonies of poor litigants who are visiting Courts for their
suits regarding partition.
If both the parties
claiming possession over the suit property, then such phenomena deals with the
factual controversy and the same could only be resolved after calling of
evidence from both sides. In case titled: Abdul
Qadir Vs Sher Muhammad, reported in 2010 MLD 1596
PROCEDURE IN RESPECT OF PARTITION OF AGRICULTURAL PROPERTIES IN REVENUE
COURTS:
As explained in
case of Noor Muhammad and others Vs Allah
Ditta and others, reported in PLD 2009 Supreme Court 198 by the august
Supreme Court that proceedings of partition of agricultural land before the
Revenue Officers were not governed by the Civil Procedure Code, 1908,
particularly when the question of title was not involved, such proceedings
being summary in nature do not partake the character of a civil suit
necessitating the framing of issues or recording of evidence of the parties.
According to Section
142 of Land Revenue Act, 1967 the Revenue Officer was to decide the question by
holding an inquiry as he deemed necessary.
Application for
partition of agricultural property is to be filed under Section 135 of Land
Revenue Act, 1967 by impleading all co-sharers as a party by joining complete
property which is in joint venture of the parties. The Revenue Court after
noticing the respondents and after getting replies, if any, from them will
summons the patwari halqa and will direct him to prepare Naqsha "Alif',
"Bay" and "Jeem".
(i) Naqsha
Alif will show Shares/Hissas of parties in the property in question.
(ii)
(iii) Naqsha
Jeem will show the proposal regarding the partition mutation and in urdu it is known as (نقشہ
ج جدائی).
At the end the
revenue officer will examine the record and will hear the arguments, if any, of
the counsels of the parties and if there is no question of earlier
private/regular partition or non-joinder or partial partition or jurisdiction
or title dispute will allow the application and passed the order and issue
"Sanad-Sultani" in favour of the applicants as per the above referred
Naqshajaat. Thereafter, for practical possession, the applicant may apply to an through an execution application and finally possession
is handed over to him on the spot.
Similarly as per
decision, the revenue officer will enter and attest partition mutation and will
curved-out the "Tattimaas" by dividing the available Khasra numbers
in Bye-numbers.
In case titled:
Khawaja Muhammad Arif Vs Mrs. Tahira Asif, reported in 2005 PLD 972 Supreme Court,
it is held by the worthy Supreme Court of Pakistan that, "Decree of
partition is an "instrument of Partition" and as such has to be
engrossed on stamp paper and in case it is not done the decree can neither be
executed nor could be acted upon". "Real test of "instrument of
partition" is whether there was any property of which the parties were
co-owners and the property was being divided by the deed in scverality,
entitling the parties to the separate enjoyment of that property".
LEGAL AFFECT OF PRIVATE PARTITION OF AGRICULTURAL PROPERTY:
Private partition
of agricultural properties between the co-sharers will have no legal affect
until the same is affirmed by the Revenue Officer U/S 147 of Land Revenue Act,
1967, which provides that "In any case in which a partition has been made
without the intervention of a Revenue Officer, any party thereto may apply to a
Revenue Officer for an order affirming the partition. On receiving the
application, the Revenue Officer shall enquire into the case, and if he finds
that the partition has in fact been made, he may make an order affirming it and
proceed under Sections 143, 144, 145 and 146, or any of those sections, as
circumstances may require, in the same manner as if the partition had been made
on at application to himself under this chapter.
In case titled: Noor Muhammad and others Vs Allah Ditta and
others, reported in PLD 2009 Supreme Court 198 citation (C), the august
Apex Court held that, "Private partition does not determine the legal
rights but simply indicates the mode of division of property among them".
In case titled: Syed Musarrat Shah Vs Syed Ahmed Shah alias
Lal Bacha reported in 2012 PLD 151
OTHER ISSUES REGARDING PARTITION
UN-DIVISIBLE NATURE OF PROPERTY:
One another
problem which is now a day very common and which the masses faces in the urban
area is that sometimes the property is of un-divisible nature, so in such a
situation if any one of the co-sharers files a suit for partition of the such
property, then the Court should have to take great care in such like cases and
should take assistance from law by applying S.2 of Partition Act, 1893. In case
titled: Iqbal Ahmad Vs Mst. Aziz Bano, reported
in 2010 MLD 784 Karachi, it is held that, "Provisions of S.2 of Partition
Act, 1893, made it generally permissible that in a suit of such nature, a
property if found incapable of being partitioned by metes and bounds, the same
might be sold out and proceeds thereof might be distributed among the
share-holders/co-owners to resolve the controversy between them in respect
thereof as once for all".
RIGHT OF CO-SHARER TO BUY WHOLE UNDIVIDED PROPERTY WHICH IS OF
INDIVISIBLE NATURE:
Once a
preliminary decree is passed by a Court of law then the Court has left with no
other option by to proceed under S. 3 of the Partition Act, 1893. This fact has
further been confirmed by the verdict of the Lahore High Court, in case tilled:
Firdous Begum Vs Mst. Salamat Bibi reported
in 2008 CLC 248 Lahore, in which it is held that, "Once preliminary decree
was passed, then provisions of S. 2 of Partition Act, 1893 would not apply and Court
would have to pass final decree and resort to provision of S. 3 thereof and in
case of failure of any share-holder to apply for leave to buy share, then property
would be liable to be auctioned. Once property was found to be indivisible,
then Court for effecting partition would have to follow procedure laid down in
Partition Act, 1893 after providing opportunity to shareholders to apply for
leave to buy property".
REMEDIES WITH THE PERSON/CO-SHARER WHO IS DISPOSSESSED:
In case titled: Contractor Haji Muhammad Alam Vs Shaukat
Sultan, reported in 2009 SCMR 688, the Hon'ble Apex Court held that,
"where a co-sharer in possession is dispossessed by another co-sharer,
then he has two remedies to avail, he can either file suit for partition or a
suit under S.9, Specific Relief Act, 1877".
In another case
titled: Shoukat Sultan Vs Haji Muhammad
Alam, reported in 2008 YLR 1698 Lahore, it is held the by the august High Court
that, "where co-sharer in possession was dispossessed by another
co-sharer, then he had two options, namely he could either wait and file suit
for partition or he could file a suit under S. 9 of the Specific Relief Act,
1877".
In another case
titled: Niaz War Jan Vs Gul Nawaz,
reported in 2007 YLR 1723 Peshawar, it is held by the august High Court that,
"A co-sharer in possession of a joint property was not liable to be ousted
therefrom, except on a partition by metes and bounds taking place between the
co-sharers".
In case titled: Muhammad Riaz Vs Mumtaz Ali through Legal
Heirs, reported in 2006 YLR 1071, it is held that, "where both the
parties were co-sharers in the joint un-partition Khata and their remedy was to
seek partition in accordance with law by impleading all other co-sharers in
khata—If a co-sharer was dispossessed by another co-sharer his remedy was for
partition of joint property or a suit under Section 9 of Specific Relief Act,
1877, for possession but a regular suit under section 8 of Specific Relief Act,
1877, was not maintainable—Suit filed by the petitioner could not be treated to
be one under Section 9 of Specific Relief Act, 1877, as there was no specific
averment that they were illegally or forcibly dispossessed from the land in dispute".
Remedies
provided to the co-sharer who has been dispossessed has also been given by
august Lahore High Court in case titled: Nazar
Hussain Vs Additional District Judge, Chakwal reported in 2004 YLR 322,
wherein it is held that, "Co-sharer in possession, if dispossessed had two
remedies; one a suit for separate possession by partition; and the second a
suit in accordance with terms of S. 9 of Specific Relief Act, 1877".
MESNE PROFIT:
Any person in
possession of the property enjoying benefit therefrom to the exclusion of
rightful owner, he would be liable to pay rent or mesne profit to the person
who has been dispossessed or deprived of his property. In a case titled: Muhammad Anwar Vs Dr. Gohar Ali, reported
in 2007 CLC 621
QUESTION OF JURISDICTION IN CASE OF SHAMILAT PROPERTY:
In case titled: Barkat Ali Vs Sultan Mehmood, reported
in 2009 CLC 899 Supreme Court Azad Kashmir, it is held that, "Suit land
was shamilat Deh, about which the civil Court had limited jurisdiction and
could not grant permanent injunction against all the Share-holders who
possessed the land in the estate as well. Unless the shamilat Deh land
partitioned by metes and bounds by the Revenue Authorities, no specific share
could be declared to be in possession of any land-owner".
QUESTION OF POSSESSION OF CO-SHARER IN UNDIVIDED PROPERTY:
In case titled: Syed Shabir Hussain Shah and others Vs
Asghar Hussain Shah, reported in 2007 SCMR 1884 Supreme Court, it is held
by the Apex Court that, "Every Co-owner/Co-sharer would be considered to
be in possession of each inch of un-partitioned land according to his
share".
In case titled: Munawar Hussain Vs Amanat Ali, reported
in 2007 YLR 1756
Actual
possession of a joint owner in an undivided property in of no value and it
would not affect the rights of other co-sharers. As it is discussed by the
august Lahore High Court in case titled: Muhammad
Arif Vs Muhammad Hafeez, reported in 2007 MLD 1983, that, "Actual
possession of a co-owner/co-sharer in case of joint land would be of no
relevance. Such possession to all purposes would inure to benefit of remaining
co-owners/co-sharers as well till such time partition was affected".
Sometimes it
happens that a co-sharer started raising construction over an undivided
property, without consulting and associating other co-sharers or without taking
their prior approval. In such an eventualities, a
co-sharer who is dis-agreed with the act of another co-sharer who is raising
construction can come to the Court and stop him from such an act. In a case of Ghulam Rasool Vs Umar Hayat, reported in
2004 YLR 1136 Lahore, it is held by august Lahore High Court that, "Each
co-share was owner in every part of the joint holdings to the extent of his
entitlement—No co-sharer could be permitted to change character of the land to
the exclusion of other co-sharers, without resorting to some lawful partition
proceedings".
Possession of a
co-sharer on a specific part of an undivided property carries little weight
when the property comes to the partition proceedings. In a case of Muhammad Younas Vs Member (Judicial), Board
of Revenue, Punjab, reported in 2004 YLR 793 Lahore, it is held while
deciding the revision petition that, "Each and every co-sharer would be
deemed to be owner and also in possession of every inch of joint land till such
time, same is partitioned by metes and bounds—Actual possession over joint land
would matter little, when land comes to partition".
In a case titled: Mst.
Ghulam Fatima Vs Muhammad Munir, reported in 2004 CLC 995
In case titled: Khurshid Anwar Jalil Vs Muhammad Hafeez
Mirza, reported in 2003 CLC 1695 Lahore, it is held that, "every joint
owner shall be deemed to be in possession of each and every inch of joint
property—If strong co-sharer after taking possession of more valuable part of
joint property either alienates same or changes its character, then it cannot
be said that weak/poor co-sharer may file suit for partition and till its
decision, strong co-sharer may alienate same or change its character and throw
his adversary into ditches or barren land by taking commercially valuable land
abutting on road side or more fertile land—Such course cannot be allowed under
principle of equity and justice".
CONSTRUCTION BENEFICIAL FOR OTHER CO-SHARERS:
Plea that the
construction raised by one co-sharer would be beneficial to other co-sharers,
as the same will increase the value of the property is disregarded by worthy Supreme
Court of Pakistan in case of Fazal Vs
Ghulam Muhammad, reported in 2003 SCMR 999 Supreme Court, wherein it is
held that, "Defendants instead of raising construction on the property
which was admittedly owned by the plaintiffs, should have first of all got the
same partitioned and then might have constructed the portion of land falling in
their share".
Suit for
possession of specific khasra number is not maintainable against a co-sharer
unless the whole khata is not partitioned. In a case of Dilmeer Vs Rajab Ali reported in 2003 MLD 484 Lahore, it is held
that, "Trial Court could to pass a decree for specific khasra number from
joint khata, unless joint khata was partitioned—Suit for possession against a
co-sharer was not maintainable—Every co-sharer, however, would have a right to
seek partition in accordance with law".
No co-sharer can
be dispossessed from an immovable property which is of an undivided nature,
except in accordance with law. In a case titled: Khawaja Masood Ahmad Vs Sajad Sarwar reported in 2002 MLD 434
Lahore, it is held that, "Person acquiring possession of immovable
property at the very inception as co-owner could not be dispossessed from the
same without proper partition and a decree/order of a competent Court in that
regard".
WHEN ENTITLEMENT OF PARTY ESTABLISHED IN PROPERTY, PARTITION CANNOT BE
DENIED:
It is prime duty
of the party who wants the Court to issue an order of partition in his favour
in respect of some immovable property that he should have first established
that he is owner in the suit property or that he has some rights attached to
the immovable property, along with other essential conditions of Jurisdiction,
non-joinder or mis-joinder of parties, case for full partition. No private
partition and if he succeeded in proving all essential requirements of
partition, then it became his right that a decree or order for partition should
be passed in his favour, if any other legal question not arises in his way. In
case titled: Muhammad Anwar Vs Dr. Gohar
Ali, reported in 2007 CLC 621 Karachi, it is held that, "Once entitlement
of the plaintiff to the suit property was established, partition and division
of property could not be denied, unless, of course, it was shown that such
property was incapable of division and partition.
IMPLEADMENT OF PARTY/CO-SHARER AFTER PASSING OF PRELIMINARY DECREE:
As it is the
established principle of law, set down by the superior Courts of Pakistan that
no one should be condemned unheard and keeping in view the said principle, the Court
always try to decide the disputes between the parties on merits and after
hearing them and after affording them ample opportunity to safeguard their
rights. Even a co-sharer can come to the Courts of law and defend his rights
after passing of preliminary decree, in which he did not
joined the proceedings. In a case titled: Mst.
Maqsooda Vs Muhammad Azeem, reported in 2004 YLR 1019
ALIENATION OF PROPERTY/POSSESSION OF CO-SHARER IN JOINT KHATA:
In case titled: Muhammad Bashir Vs Noor Rehman, reported
in 2011 MLD 1518
In another case
titled: Abdur Rehman VS Muhammad Siddique
through L.Rs, reported in 2006 MLD 442 Lahore, it is held that,
"Co-sharer in possession could, while alienating his share, transfer
possession of his holding to another person which would be subject to
partition. Co-sharer would be entitled to retain possession of land in joint
khata till it was partitioned by metes and bounds".
A Co-sharer can
alienate his share in an undivided property and there is no embargo upon him
for doing so. In case titled: Mst. Bibi
Jan VS Mir Zaman, reported in 2003 CLC 909
If a co-sharer
sells in portion of property in an undivided khata, and deliver the possession
of some specific area to the vendee, then the vendee can retain the possession
of such land which was delivering to him by the vendor till final partition. In
case titled Muhammad Aslam Vs Amir
Muhammad Khan, reported in 2003 YLR 1870 Lahore, it is held that,
"Co-sharer was entitled to transfer a specific khasra number under his
exclusive possession to the vendee and the he (vendee) would continue in possession
til the partition of the joint khata because the vendee stepped into the shoes
of the vendor as co-sharer".
A Co-sharer can
alienate a property in favour of other person but he cannot alienate a property
with a specific description of boundaries unless the property is being properly
partitioned. In a case titled: Muhammad
Anwar Vs Mst. Nawab Bibi, reported in 2003 MLD 742 Lahore, it is held that,
"Vendors although co-sharers, yet were not in possession of specific
khasra numbers and, therefore, they were not entitled to transfer and lawfully
alienate the plot with boundaries in favour of vendee".
CONCEPT OF OWELTY OF PARTITION:
Owelty is an
equalization charge. It is the amount that one co-owner must pay to another
after a suit of partition, so that each co-owner receives equal value from the
property. This is done to achieve equality after exchange of parcels of land
having different values or after an unequal partition of real property, or
Owelty of partition is a sum of money paid by one of two caparceners or
co-tenants to the other, when a partition has been effected between them, but
the land not being susceptible of division into exactly equal shares, such
payment is required to make the portions respectively assigned to them of equal
value.
In case titled: Mrs. Saadia Muzaffar through her attorney Vs
Mrs. Khadija Manzur, reported in 2006 CLC 401
CONCLUSION
From above details we can
assess that in civil suits the claims of partition of property is highly
technical and complicated job. In order to accommodate the people it is need of
hour that the Govt. should take serious steps for computerizing the revenue
record or other property record. Further settlements in all districts of