IN THE HIGH COURT OF
SINDH AT KARACHI
SUIT
NO.780/2001
Plaintiff : Zafar Mahmood Khan,
Through
Mr. Qazi Hifzur-Rehman, advocate.
Defendants
: Muhammad Ali Khan and another,
through
Mr. Zeeshan Abdullah, advocate for defendant No.1.
Date
of hearing : 20.04.2015.
Date
of announcement : 13.5.2015.
Through
this order I intend to dispose of CMA No.1353/2015 and 17588/2014. In former
CMA, the plaintiff is seeking appointment of the Nazir on the plea that through
consent order dated 22th December 2014 defendant No.1 was allowed to construct
one room, on portion of his part of building, at his own risk and cost, subject
to final adjustment whereas latter application seeks closure of gate related to
defendant, opening in the area of plaintiff as well as rooms, which are in
access area occupied by the defendant and handing it over to the plaintiff.
2. Precisely,
relevant facts of suit are that plaintiff filed suit against brother and step
mother (defendants) claiming that subject property is owned by plaintiff and
defendants but since same is not partitioned, therefore may be partitioned. For
the sake of brevity prayer clause is reproduced herewith:-
i.
To declare that plaintiff, defendant No.1
and 2 have equal shares in the plot and building constructed on Plot No.D-112,
block 4, Federal B Area, Karachi;
ii.
To order for the partition/division of the
aforesaid property with direction to hand over the peaceful physical possession
of land measuring 333.33 sq. yards alongwith construction to the plaintiff if
it is not possible then to order for sale out of the property in question with
direction to distribute the sale proceeds amongst sharers/co-owner equally.
iii.
To restrain the defendants their agents,
attorney, successors, representatives, servants and all those acting under
their control and guidance from dispossessing the plaintiff from the portion
presently occupy by him and his family of the aforesaid property as well as
from alienating, mortgaging, transferring or parting with the possession of the
property in question or from creating third party interest till the disposal of
this case.
…..……..”
3. In contra,
defendant No.1 has claimed that in fact suit property was purchased by father
of plaintiff from his own fund (defendant No.1’s), whereas this was purchased
in the name of plaintiff and defendants in equal shares; they are residing in
same premises but title in favour of plaintiff No.1 is benami.
4. Heard learned
counsel, perused the record.
5. From perusal of
the record, it appears that present suit is for partition of property which, undeniably,
per record of Rights, is jointly owned by the plaintiff and defendants in equal
share. The record further speaks that suit is pending since 2001; issues were
settled and the matter was referred to Commissioner for recording evidence, yet
learned commissioner has not completed his assignment.
6. On 05.12.2005,
Issues proposed on behalf of the Plaintiff were adopted which are as under:-
1.
Whether the plaintiff and defendants have
equal share in property in question?
2.
Whether the plaintiff is entitled to have
333.33 Sq. Yds share in property in question according to law up to extent of
his share?
3.
Whether the defendants are enjoying the
possession of the premises more than their shares in respect of property in
question?
4.
Whether the defendants are illegally
occupying seven Rooms, Kitchen, corridor, Lawn and Garage more than their
share?
5.
Whether the property can be
partitioned/divide amongst sharers according to their respective share, if it
is not possible, whether the property should be sell out and sale proceed
liable to be distributed amongst sharers?
6.
Whether the suit is barred under the law?
7.
Whether the suit property was purchased by
defendant No.1 from his own funds, if so its effect?
8.
What should the decree be?
7. Before going
into details, it is pertinent to mention that instant matter relates to the ‘partition
& separation’ and from the very beginning the position as per the
record is that plaintiff and defendants are the joint-owners in the subject
matter property. It is manifest that relief(s), sought in the matter, squarely
fall within meaning and scope of the Order XX rule 18 of the Code which
provides a mechanism for partition and separate possession of a movable or an
immovable property. Thus, to meet the demands of proper appreciation and
understanding, I feel it quite justified to refer the Order XX rule 18 of the
Code, which reads as:-
“18. Where the Court passes a decree for
the partition of property or for the separate possession of a share therein,
then,-
1) if and in so far as the decree relates
to an estate assessed to the payment of revenue to the Government, the decree
shall declare the rights of the several parties interested in the property, but
shall direct such partition or separation to be made by the Collector, or any
gazetted subordinate of the Collector deputed by him in this behalf, in
accordance with such declaration and with the provisions of section 54; “
The Rule 18(1) of the Civil Procedure Code
shows that this is confined to an estate relates to a decree, to be recorded in
respect of an estate ‘assessed to the payment of revenue to the Government’ therefore,
partition and separate possession shall be required to be made by ‘Collector,
or any gazetted subordinate of the Collector deputed by him’ in this
behalf. Since no issue of ‘payment of revenue to Government’ is involved
in the matter in hand, therefore, the Rule (1) needs not be discussed further.
Accordingly, it appears that relief sought in instant suit is governed by Rule
18(2) of Order XX which is:-
“2) if and in so far as such decree
relates to any other immovable property or to movable
property, the Court may, if partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree declaring
the rights of the several parties interested in the property and giving such
further directions as may be required.”
8. Worth
to mention that above sub-Rule makes it clear that by using the phrase ‘any
other’ the scope was widened to all ‘moveable or immovable’ properties
which are not falling within meaning of Sub-Rule(1) of Rule-18. The reading of
the sub-Rule (2) further shows that it vests jurisdiction in the court to
record a ‘preliminary decree’ where ‘partition or separation’
cannot be conveniently made without ‘further inquiry’. Since,
it is clear that the remedy for specific partition and possession in a specific
immovable or movable property is an exception to other reliefs, controlled and
declared by Specific Relief Act hence such like matters would stand in the
queue of those provided in Order XX of the Code, including one of ‘administrative
suit’. Let me refer the provision of Section 8 & 10 of the Specific
Relief Act, which reads as:-
8. A person entitled to the possession of specific immoveable
property may recover it in the manner prescribed by the Code of
Civil Procedure.
10. A person entitled to the possession of specific moveable
property may recover the same in the manner prescribed by the
Code of Civil Procedure.
The
above exception, introduced by use of phrase ‘in the manner prescribed by
the Code’ is purposeful because where entitlement of a person is not
disputed as would be in the case of status of co-sharers / joint owners in an
inherited property or where a movable or immovable property is undisputedly owned
by sharers jointly. There can be no denial to the fact that normally the
co-sharers (family) do not insist for partition or separate possession
immediately but continue living in harmony till a time the circumstances start
forcing or compelling the sharers to part. Since it is undeniably a legitimate
and legal right of two sharers/joint-owners to part because the law cannot
compel two to live together against their wishes even if they are tied in most
sacred relation of ‘husband & wife’ even rather the law always
demands living of soul(s) with rights to enjoy legal freedom of all kinds even
if it (law) has to part to a joint body or party. Therefore, whenever the
co-sharers/joint-owners start feeling it necessary to have partition and
separate possession of the joint property then it becomes obligatory upon all
sharers to amicably do this on principle of equity, fair-play and entitlement
else every single day shall result in increasing the differences between the
parties who have set their minds to part. Worth to add that it is always the
angle of seeing which matters in painting a picture in mind. The persons living
in harmony ignores number of things but same things cause different impact on
same persons when differences arise. This is so, that even there is divine
direction that each entitled for a right be given his/her due. Therefore, the
Code has provided a summary procedure for partition and separate possession
among those ‘entitled’ for possession and separate possession.
At this stage, it
would be conducive to refer the well established principle of law: -
i)
partition of joint property is a
continuing right enforcement of which is not bound by any period of limitation;
Reliance in this regard is placed on the
cases of ‘ Sarakhi Abdul Rahiman Trangan and another v. Muhaldin Pathaummal
Bivi and another (AIR 1917 Madras 244), Habib-ur-Rehman v. Abdul Rahman and 3
others ( 1987 CLC 195), Hamayun Kabeer v. Qaiser Nazir (2006 MLD 1496 ) and
Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247
ii)
mere holding of possession by one does not
disentitle other co-owners from claiming partition of the property and in such
cases limitation is not relevant and suit for partition could be filed at any
time;
Reliance in this regard is placed on the
case of Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others (PLD
1994 SC 462).
iii) It is settled law that a
co-sharer is entitled alienate or transfer his share in the khata and deliver
possession of property in his occupation/control. The vendee steps into his
shoes as a co-sharer and the property so purchased shall of course be subject
to partition.
Reliance in this regard is placed on the
case of Jan Muhammad and another v. Abdur Rashid & 5 others (1993 SCMR
1463).
iv) without assent or acquiescence of
the other co-sharers there can be no legal exclusion of sharer from a joint
holding nor one can legally select a particular portion for the purpose of
partition but partition shall be as a whole’
Reliance in this regard is placed on the
case of Samar Gul v. Central Govt. & Others (PLD 1986 SC 35)
v) if property is joint, possession
of one co-heir is sufficient to be considered as possession of all co-heirs.
Some co-heirs on the ground of exclusive possession cannot defeat the claim of
other co-heirs by taking plea of adverse possession
Reliance in this regard is place on the
case of Moolchand v. Muhammad Yousuf (PLD 1994 SC 462)
vi) non-participation in the profits of
the property would not amount to an ouster;
Reliance is placed on the case of Haji v.
Khuda Yar PLD 1987 SC 453.
9. Keeping the
above settled principle of law, suffice to say that if a suit is confined to
relief of partition and separate possession between the sharers or
co-owners, in that eventuality, the requirement of recording preliminary
inquiry is subject to only one exception i.e ‘where partition or
separation cannot be conveniently’. Thus, I can safely mew the
object of the Order XX rule 18 of the Code as where the ‘entitlement of
person or several party’ in a ‘specific immovable or movable property’ is
requiring any ‘further inquiry’ then final decree may be delayed
pending such an inquiry but ‘preliminary decree’ normally should
not be delayed. For this, the entitlement (status of parties) should not be prima
facie disputed rather should be evident rather admitted as is in the
cases of ‘inheritance’ (where status of arties to be legal heirs is not
disputed) or where all the parties have acquired title in a joint
property from one person i.e. in matters of gift where all parties are standing
under one and same roof. Thus, this provision shall be fully applicable in said
two events because I am also conscious of legal position that a mere mutation
in record of rights does not necessarily create title (entitlement). However,
once status of parties is ‘admitted’ this provision shall come forward
to help the sharers to put each sharers in separate possession.
10. The above
conclusion further permits to say that issues, framed and agreed by the
parties, are not relevant for the disputes, which may require an inquiry in a
matter falling within four corners of Order XX rule 18 of the Code which, even,
is with reference to Section 8 and 10 of the Specific Relief Act. The
issues/questions, involved in such like matter could be the ‘entitlement’ of
the party which shall be with reference to status of the parties in property
sought to be partitioned but this will not include determination of those
(specific relief(s)), which are otherwise defined and controlled by the ‘specific
provision(s)’ of Specific Relief Act, 1877 as is evident from preamble of
the Specific Relief Act, 1877 which reads as:-
“Whereas it is expedient to define and
amend the law relating to certain kinds of specific relief obtainable in civil
suits; …..”
Thus,
where the status of the parties as ‘sharers or joint owners’ is not
disputed then the course, provided under Order XX Rule 18 of the Code should be
adopted.
11. Besides, a declaratory decree is
controlled by the Section 42 of the Specific Relief Act while relating to
status of an instrument is by Section 39 of the Act. The nature and character
of such suits, having distinct features, normally cannot be determined in a
suit which squarely fall within meaning and scope of Order XX rule 18 of the
Code, thus the party, interested in getting such declaration or cancellation,
is required to adopt a proper course, provided by the law itself. Thus, I can safely say that a simple plea of a
title to be ‘purchaser’ or a title of co-sharer to be result of ‘fraud’
shall be of no help for a party to defeat the object of the suit, falling
within four corners of Order XX rule 18 of the Code because the law is clear
that the Court can neither assume the jurisdiction if not permitted by the law
nor could do what the law is not permitting it hence for such pleas the fate
would be the same as has now been settled for a plea of ‘sale agreement’ in
rent matters i.e :-
Muhammad Anwar vs.
Muhammad Ahmed (2007 SCMR 1961)
8.
It may be pointed out that petitioner claimed to have purchased 1/3rd
share of his brother in the premises on consideration of Rs.1,00,000, thus
becoming absolute owner of the premises but not an iota of evidence was brought
on record by the petitioner to substantiate his claim. Mr. Rasheed Razvi
submitted with vehemence that the property was mutated in the name of the
petitioner in K.D.A. record which was sufficient to establish the
ownership/title of the petitioner in respect of the premises but the learned
Rent Controller and the High Court completely ignored this material fact while
deciding the question of relationship of landlord and tenant. This contention
does not merit consideration as respondent No.1 described the mutation to the
result of fraud and collusion of the petitioner and the concerned officer of
K.D.A. Besides, mutation does not confer ownership or title on the person in
whose name the property is mutated as held by this Court in the case of (i)
Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West
Pakistan PLD 1971 SC 376 and (ii) Muhammad Ali and 25 others v. Hassan Muhammad
and 6 others PLD 1994 SC 245. In the circumstances, the learned Rent Controller
and the High Court rightly concluded that the petitioner failed to establish
that he is the landlord/owner of the premises in question, the natural
corollary of which would be that the relationship of landlord and tenant does
not exist between the petitioner and respondent No.1.”
Iqbal and 6 others
vs. Mst. Rabia Bibi and another (PLD 1991 Supreme Court 242)
“It
appeared to be a well-received rule inasmuch as in Allah Yar and others v.
Additional District Judge and others (1984 S.C.M.R. 741) and Mian Muhamamd Abdullah
v. District Judge, Sahiwal and 6 others (PLD 1985 Lah. 467) it was laid down
unambiguously that ejectment proceedings could not be stayed or stalled on a
plea that the tenant in possession holds such an agreement. Even pendency of a
suit for specific performance of the agreement was held no ground to avoid
eviction of the tenant by the Rent Controller. Since the plea raised in defence
by the appellants was not effective, the next order to be passed was one for
eviction. Muhammad Idrees vis. Mst. Safia Begum and others (1986 SCMR 795) was
an instance where straightaway ejectment was ordered on failure of such a
defence.”
Abdul Rasheed vs.
Maqbool Ahmed [2011 SCMR 320]
5.
We have heard both the learned Advocates Supreme Court. It is settled law that
where in a case filed for eviction of the tenant by the landlord, the former
takes up a position that he has purchased the property and hence is no more a
tenant then he has to vacate the property and file a suit for specific
performance of the sale agreement whereafter he would be given easy access to
the premises in case he prevails.”
(Underlining has been supplied for emphasis)
12. Thus, applying
the said logic and principle, germane to state that:-
“it shall not prejudice the proceedings
and outcome in a suit falling within meaning of Order XX rule 18 of the Code;
‘the decree in such suit, however, shall not
prejudice to validity and consequence of a judgment of competent Civil court
declaring the title or status of any person holding title or possession under
the decree (O.XX r 18 CPC)’
Party claiming any
right on the basis of independent title or character, may file separate suit
but on that plea, the process of ‘partition’ shall not stop, where prima
facie the status of parties as co-sharer and that of subject matter as ‘movable
or immovable’ is evident. The proceeding of ‘partition’ shall be
undertaken in summary manner as ‘short cause matter’ and not as long
cause for years and years because this provision is aimed to give the entitled
persons their due as early as possible for which they are legally entitled.
13. As
discussed above, I have come to the conclusion that there was no need to frame
said issues as prima facie the status of the parties as joint owners /
co-sharers is evident and patent from the record hence the requirement of law
was to pass preliminary decree whereby seeking proposal from the Nazir or the
one, which the Court feels proper, with regard to partition of the suit
property. Without prejudice to this, the perusal of the record shows that
subject property was in name of Plaintiff and Defendants whose title is
claimed by defendant no.1 to be benami. However, the record further
shows that said owner is no more owner of the property as he transferred
subject matter through gift on equal basis. The defendant no.1 does not
challenge his status, acquired as donee, whereby he had/has not only
acknowledged ownership of donor but that of his own as ‘donee’ which
requires unconditional and absolute acknowledgment of title of the donor in
respect of the subject (property under gift). The title of plaintiff and
defendant no.1 legally cannot be claimed to be ‘benami’ as their title
is under one and same gift which may, however, could be sought to be adjudged
as ‘defective or illegal’, as permissible by law. However, since further
discussion may result in prejudicing the claim of the defendant no.1 therefore,
I refrain myself to dilate this issue further.
14. Moreover, since
any decree in a matter of ‘partition & separate possession’ shall
require determination of convenience for such purpose which would prime
requirement is to know:-
‘whether the property in question can
conveniently be partitioned among the sharers as per their title or otherwise
on scale of equity?
As, where convenient and equitable partition and separate
possession is not possible then second step is to have the market value of the
property assessed so as to sell and distribute the consideration thereof among
the sharers as per their entitlement. However, if sharer or sharers are
interested in purchasing the share of other sharer(s) at such price then this
shall always be the first and preferential right of sharers which should be
given preference.
15. Accordingly, the
Nazir is hereby appointed to inspect the suit property, keeping in view said
requirements, in presence of parties and to submit report with regard to
partition of property. He shall try to negotiate with the parties for amicable
proposals for such purpose which (amicable) shall be specified with such
prominence. On receipt thereof, the course, provided by the Order XX rule 18
CPC will be followed. This exercise shall be completed within three months.
Nazir shall be entitled to receive fee of Rs.20,000/- (Rupees Twenty Thousand
Only) to be borne by the parties.
16. In view of above
CMA are disposed of with direction that defendant no. 1 shall not use the gate
which falls within the open area of plaintiff as temporary arrangement, till
further proceedings.
Sajid/PA
J U D G E