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