Small part ki taqseem mumkan hai ?private partition is possible ?Difference between agriculture and residential land. Partition,
 |
| Partition of agriculture and residential land. |
In following judgement discussed difference between agriculture and residential land and jurisdiction of revenue and civil court and held that Ot is not possible to partition of a small area and excluded main and big area.
For more information call or Whatsapp 03244010279
Judgement
tereo.HCJDA 38.
JUDGMENT SHEET.
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH, RAWALPINDI.
JUDICIAL DEPARTMENT
Civil Revision No.190-D of 2012
SAKHI MUHAMMAD, ETC.
Versus.
HAJI AHMED, ETC.
JUDGMENT.
MirzaViqasRauf, J. The petitioners herein were arrayed as
defendants in the suit for separate possession through partition and
permanent injunction instituted by respondents No.1 to 4 (hereinafter
referred as “respondents”) with regard to land measuring 7-Kanals 16-
Marlas bearing Khewat No.572 Khatooni No.1432 Khasra No.1195
situated in village Tatral, Tehsil & District Chakwal (hereinafter referred
as “suit property”). It is averred in the plaint that “suit property” has
attained the residential character, which is still joint interse parties and
the petitioners are intending to alienate the same in excess of their share.
Suit was contested by the petitioners as well as other respondents, who
were impleaded as defendants in the suit, who submitted their written
statements controverting the assertions contained in the plaint. From the
divergent pleadings of the parties, multiple issues were framed. After
il Revision No.190-D of 2012
framing of issues, evidence of both the sides was recorded and finally
suit was preliminary decreed vide judgment dated 15th February, 2011.
Feeling dissatisfied, the petitioners though preferred an appeal before the
learned Additional District Judge, Chakwal but their appeal was
dismissed through impugned judgment and decree dated 20th February,
2012, hence this petition under Section 115 of the Code of Civil
Procedure (V of 1908) (hereinafter referred as “CPC”).
2.
Learned counsel for the petitioners contended that alongwith
“suit property” there is some other property, which is joint interse
parties. Added that the “respondents” did not include the whole land in
the suit and as such suit was hit by partial partition. It is submitted with
vehemence that while decreeing the suit, both the Courts below have
completely overlooked the factum of private partition interse parties. It
is argued that findings of both the Courts below are though concurrent
but are the result of gross misreading and non-reading of evidence. In
order to supplement his contentions, learned counsel has placed reliance
on ABDUL GHAFOOR v. MUHAMMAD SHAFFI and others (2019
CLC 1343).
3.
Conversely, learned counsel representing the respondents
No.1 to 4 submitted that no cogent material was brought on the record
by the petitioners to establish the question of private partition. It is
contended that even otherwise private partition would have no impact
unless compliance of Section 147 of the Punjab Land Revenue Act,
1967 (hereinafter referred as “Act, 1967”) is made. While adverting to
Civil Revision No.190-D of 2012
the issue of partial partition, learned counsel submitted that suit Khasra
was the only Khasra, which attained the urban nature. He added that suit
was thus maintainable and it was rightly decreed by the Courts below. In
order to supplement his contentions, learned counsel placed reliance on
MUHAMMAD MUKHTAR and others v. MUHAMMAD SHARIF and
others (2007 S C M R 1867), Mst. WALAYAT BEGUM and 3 others v.
MUHAMMAD AFSAR and 3 others (2014 C L C 1103) and
MUHAMMAD AYAZ and others v. Malik ZAREEF KHAN and others
(PLD 2016 Peshawar 8).
4.
After having heard learned counsel for the parties at
considerable length, I have perused the record.
5.
It is an admitted fact on all hands that parties to the lis are coowners. Suit was instituted by the “respondents” seeking partition of
property forming part of Khasra No.1195. Suit was mainly resisted on
two-fold grounds. Firstly, it is not proceedable as private partition has
already taken place interse parties and secondly it is hit by principle of
partial partition. From the divergent pleadings of the parties, though
multiple issues were framed by the learned Trial Court but issues No.2
and 3 clinches the controversy, which read as under: -
“2.
Whether the suit property was privately partitioned
about 50/55 years ago and suit of the plaintiffs is not
maintainable? OPD
3.
Whether the suit of the plaintiffs is partial one? OPD”
6.
Adverting to the issue of private partition, it is observed that
onus to prove this issue was upon the petitioners. To this effect,
Civil Revision No.190-D of 2012
Muhammad Munir, one of the petitioners appeared as PW-1. He
deposed that in terms of private settlement, the petitioners are in
possession of the property falling in their share. Similarly, other coowners are also holding their respective possession as per their
entitlement. No written instrument was, however, produced to establish
the private partition.
7.
Section 147 of the “Act, 1967”, provides a mechanism for
affirmation of partitions privately effected, which reads as under: -
147. Affirmation of partitions privately effected. (1) 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.
(2)
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 an application to himself under this
Chapter.”
From the bare perusal of above referred provision of law, it clearly
evinces that if a party is relying upon some family settlement with
regard to partition of joint land, any party interested therein has to apply
to the Revenue Officer for obtaining an order for affirmation of such
partition. In absence of any such order, party relying upon the private
partition would be precluded to claim any right therefrom. Furthermore,
Chapter 18 of the Land Record Manual provides a procedure in partition
cases and clause 18.1 especially deals with private partitions. To
understand the true import of private partition, guidance can be sought
from MUHAMMAD MUKHTAR and others v. MUHAMMAD SHARIF
and others (2007 S C M R 1867). Reference in this regard can also be
Civil Revision No.190-D of 2012
made to Mst. WALAYAT BEGUM and 3 others v. MUHAMMAD AFSAR
and 3 others (2014 CLC 1103).
8.
After having analyzed the evidence on the above perspective,
an inference can easily be drawn that the petitioners have failed to lead
any cogent evidence with regard to private partition. So, issue to this
effect was rightly decided by the Courts below.
9.
Adverting to the question of partial partition, it is observed
that “suit property” is part of Khewat No.572, which consists of 11
Khasra numbers including Khasra No.1195, subject matter of suit. Total
land in the Khewat is 54-Kanals but the “respondents” have instituted
the suit seeking partition of land measuring 7-Kanals 16-Marlas forming
part of Khasra No.1195 on the ground that it has attained urban
character whereas rest of the khasras are agricultural. To this effect,
Muhammad Azam, respondent No.2 appeared as PW-1. He deposed as
follows: -
یہ درست ہے کہ اراضی متدعویہ کے عالوہ بھی مابین فریقین مشترکہ اراضی ہے۔
10.
It is an undeniable fact that “suit property” is part of Khewat
No.572, which consists of 11 Khasra numbers and the property falling
therein is joint interse parties. In order to justify that suit for partition is
proceedable, reliance has been heavily placed on MUHAMMAD
AYAZ and others v. Malik ZAREEF KHAN and others (PLD 2016
Peshawar 8) wherein it was held that suit for immovable undivided
property situated in Abadi Deh shall be triable exclusive by the Civil
Court whereas immovable undivided property outside Abadi Deh shall
Civil Revision No.190-D of 2012
be partitioned by revenue hierarchy. Suffice to observe that facts of the
said case are quite distinguishable as in the said case partition of two
houses situated inside Abadi Deh was sought, which was though resisted
by the defendants in the suit but their objection was turned down on the
ground that they have failed to point out any other joint immovable
property within Abdi Deh in the revenue estate. It was also held that
partition has to be sought for all the undivided immovable property and
partial partition thereof would not be competent. In the present case,
“suit property” is part of Khewat No.572 and it is not separable from the
property situated in other Khasra numbers of the same Khewat. The
principles thus laid down in the judgment MUHAMMAD AYAZ and
others v. Malik ZAREEF KHAN and others supra are not applicable to
the present case. In this context, reference can be made to ABDUL
GHAFOOR v. MUHAMMAD SHAFFI and others (2019 CLC 1343)
wherein while dealing with the similar proposition, this Court held as
under: -
“5.
Arguments heard. Record perused.
6.
There are two primary questions involved in this case which
require determination:
i)Whether the suit land is agricultural in nature, if yes, then, how the
civil court has jurisdiction to adjudicate the matter.
(ii)
What type and extent of constructions on agricultural land do
not exclude it from the purview of section 135 of the Punjab Land
Revenue Act, 1967, for the purposes of partition proceedings?
7.
Firstly, I come to the first question, that whether the suit land
is agricultural land or not. In this regard, I perused the record available
on the file wherein Jamanbandi for the year 2008 was exhibited as
Ex.P-1 in which it is mentioned that whole Khewat is relating to land
99-Kanals, 10-Marlas and out of total said land, the land consisting of
93-Kanals and 19-Marlas is cultivable whereas only 5-Kanals, 11-
Marlas is "Ghair Mumkan" (non-cultivable). Ex-P-2 which is Khasra
Girdawri also shows that major part of land is cultivable. So, it is
Civil Revision No.190-D of 2012
manifestly clear that the suit land is agricultural. It is settled law that
the matter of partition of agricultural land falls within the exclusive
domain of Revenue Officer and the jurisdiction of Civil Court, is barred
under the law, therefore, a decree passed by a Civil Court relating to
the partition of the agricultural land is without jurisdiction and nullity
in the eye of law. In this regard, I am fortified with the judgment of
august Supreme Court of Pakistan reported as "Qamar Sultan v. Mst.
Bibi Sufaidan" (2012 SCMR 695), wherein it has been held that:
"The proposition that when the relief vis-a-vis partition of an
agricultural property lay within the jurisdiction of the Revenue Court,
any decree passed by the Civil Court in this behalf is nullity in the eye
of law, is no doubt correct, but in this case the Civil Court has not
passed any such decree. Yes, no secondary evidence has been produced
in the Court to prove the signature of the deceased on the application
mentioned above but, to our mind that was not necessary, because it
was a certified copy of the application thus moved. When considered in
this background, we don't think the impugned finding can be said to
have been based on misreading and non-reading of evidence or
erroneous assumptions of law and facts. We, therefore, do not feel
persuaded to grant leave in this case."
8.
It would be advantageous to reproduce the sections 135 and
172 of the Punjab Land Revenue Act, 1967:
"135. Application for partition.- Any joint owner of land may apply
to a Revenue Officer for partition of his share in the land if-
(a) at the date of the application the share is recorded under Chapter
VI as belonging to him; or
(b) his right to the share has been established by a decree which is
still subsisting at the date; or
(c) a written acknowledgment of that right has been executed by all
persons interested in the admission or denial thereof."
"172. Exclusion of jurisdiction of Civil Courts in matters within the
jurisdiction of Revenue Officers.- (1) Except as otherwise provided by
this Act, no Civil Court shall have jurisdiction in any matter which
Government, the Board of Revenue, or any Revenue Officer, is
empowered by this Act to dispose of, or take cognizance of the manner
in which Government, the Board of Revenue, or any Revenue Officer
exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generality of the provisions of subsection
(1), a Civil Court shall not exercise jurisdiction over any of the
following matters, namely:-
(i)
……………..
(ii)
……………..
(iii)
……………..
(iv)
……………..
(v)
……………..
(vi)
……………..
(vii)
Civil Revision No.190-D of 2012
(viii)
……………..
(ix)
……………..
(x)
……………..
(xi)
……………..
(xii)
……………..
(xiii)
……………..
(xiv)
……………..
(xv)
……………..
(xvi)
……………..
(xvii) ……………..
(xviii) any claim for partition of an estate or holding, or any question
connected with or arising out of, proceedings for partition, not being a
question as to title in any of the property of which partition is sought;"
The bare reading of above quoted provisions of law makes it very much
clear that section 135 of the Act ibid confers power upon a Revenue
Officer to make partition of land, on application of any joint owner,
whereas. Section 172 of the Act ibid excludes expressly jurisdiction of
civil courts in any matter which the Government, Board of Revenue, or
any Revenue Officer, is empowered by the Act to dispose of. Hence, in
view of above provisions of law, there leaves no confusion to hold that
a Civil Court has no jurisdiction to adjudicate upon a suit praying
partition of agricultural land.
9.
So far as the second question with regard to that what type and
extent of constructions on agricultural land do not exclude it from the
purview of section 135 of the Act, 1967, for the purposes of partition
proceedings, is concerned, there is no any hard and fast rule in this
regard, however, it is subject to the peculiar facts and circumstances of
every case. However, guidance may be sought from the judgments of
Apex Courts as well as of High Courts and from the definition of the
term "land" given in section 2(3) of the Punjab Alienation of Land Act,
1900 which is re-produced hereinbelow for ready reference:
Section-2: Definition (1)…….
(2) ………
(3) the expression "land" means land which is not occupied as the site
of any building in a town or village and is occupied or let for
agricultural purposes or for purposes subservient to agriculture or for
pasture, and includes-
(a) the sites of buildings and other structures on such land;
(b) a share in the profits of an estate or holding;
(c) any dues or any fixed percentage of the land-revenue payable by
an inferior landowner to a superior landowner;
(d) a right to receive rent;
(e) any right to water enjoyed by the owner or occupier of land as
such;
(f) any right of occupancy; an
Civil Revision No.190-D of 2012
(g) all trees standing on such land,"
In view of above mentioned provision of law the term "land" means
land which is not occupied as the site of any building in a town or
village and is occupied or let for agricultural purposes or for purposes
subservient to agriculture or for pasture and further includes the above
mentioned provisions of law i.e. 2(3)(a) to 2(3)(g). Whereas, in Section
3(1) of the Punjab Land Revenue Act, 1967 it has been stated that:
3. Exclusion of certain land from operation of this Act.---(1) Except
so far as may be necessary for the record, recovery and administration
of village cess, or for purposes for survey, nothing in this Act applies to
land which is occupied as the site of a town or village, and is not
assessed to land revenue.
Section 136(b) (iii) of the said Act provides that partition of any land
which is occupied as the suit of a town or village, may be refused if, in
the opinion of the Revenue Officer, the partition of such property is
likely to cause inconvenience to the co-sharers or other persons directly
or indirectly interest therein, or to diminish the utility thereof to those
person. Plain reading of these enactments reveals that the expression
"as the site of any building in a town or village" has been used in the
Act of 1900 and the expression "as the site of a town or village" has
been employed in the Act, 1967 which clearly shows the difference of
both these expressions as in the first expression word "any building"
has been used whereas in the second expression said words have been
omitted which in my point of view has some rationale as it reflects that
an agricultural land (not any building) which is occupied as the site of
town or village still remains under the purview of the Act, 1967 unless
and until it is not assessed to land revenue, however, agricultural land,
viz, the agricultural land in a town or village, is built upon; the same
comes out of the scope of the term "land" and quits from the purview of
the Act of 1967. I would like to cite here the judgment of this Court in
case titled "Muhammad Sadiq v. Abdul Aziz" (1990 CLC 1387)
wherein it has been held that:
21. Reading the definitions of the expressions "land", "village
immovable property" and "urban immovable property" together, in the
light of the guidance to be gained from decided cases, it appears that
the essence of the definition of agricultural land is its agricultural or
pastural character. In order to determine whether the land is agricultural
land, the definition prescribes two tests, one negative that is the
property should not be occupied as the site of a building in town or
village and the other positive that it should be occupied or let for
agricultural purposes or for purposes subservient to agriculture or for
pasture. Thus, if a land is occupied as the site of any building, the
Court must approach the matter by asking itself objectively:
(i) whether the locality where it is situate is a town or village; and
(ii) whether it is occupied or let for agricultural purposes.
If the answer to the first question be in the affirmative, then
depending upon its' situation in a town or village, it is either urban or
village immovable property; it is not agricultural land. But if it be land
occupied or let for agricultural purposes, then the buildings on it are
also agricultural land. If the land satisfies the test that it is a site of a
building in a town or village, then it cannot be agricultural land and it
appears to follow logically that in that case the second question would
Civil Revision No.190-D of 2012
not arise. There may be difficulty in drawing the line between the two
cases, but a judge of fact should be able to resolve the difficulty. As
Lord Simonda said in 1954 A.C. 429, 445:
.... I am not as a rule impressed by an argument about the difficulty of
drawing the line since I remember the answer of a great Judge, that
though he knew not when day ended and night began, he knew that
mid-day was day and mid-night was night:'
22. There are many big bungalows and residential houses in the big
cities such as Lahore and Faisalabad which have gardens and vacant
lands attached to them; in those lands, sometimes crops are sown; but
can it be reasonably predicated that such lands or gardens should be
regarded as things apart from the bungalows or residential houses of
which they form part. Even in some residential localities on The Mall,
Lahore, there are houses in which vacant lands attached to them are
sometimes used for crop sowing. Yet, they are occupied as the sites of
the buildings to which they are attached, as much as the site actually
under the building."
The portion of said judgment as reproduced above manifestly
determined the status of an agricultural land and extent of constructions
on agriculture land.
10.
In the present case, the appellant filed suit for declaration,
partition and possession with permanent injunction against the
respondents with regard to the land in dispute, wherein at paragraph
No.4 of the plaint he mentioned as under:
"یہ کہ مدعا علیہم اراضی متدعویہ پر قابض ہو کر فصالت کاشت کر رہے ہیں بقیہ
اراضی پر غیر ممکن، ٹیوب ویل، ڈیرہ، مرغی خانہ، آبادی اور راستہ وغیرہ بنا رکھے ہیں"
It is admitted by the appellant that the land is agricultural wherein the
respondents have raised illegal construction of tubewell, daira, murgi
khana and passage and remaining land is under cultivation by the
respondents. The appellant in his examination in chief approximately
taken the same stance, however, in place of "Abadi" )آبادی( he
mentioned that some "Kothay" کوٹھے have been built. In his crossexamination he stated that there is no existence of poultry farm on the
land and there are some houses on the said land. So, there is no any
sound proof of Abadi at the disputed land which shows that the said
land is not agricultural, rather the same is proved as cultivable. The
learned lower appellate Court has rightly relied upon Section 3(2) of
the Land Revenue Act, 1967 and held that appellant had not produced
any notification of Collector, or special orders of Board of Revenue
which show that the land in question has been included within the site
of town and village, however, the documents produced by the appellant
as Ex.P-1 and Ex.P-2 shows that major portion of disputed property as
agricultural land and cultivable (mazrua). As stated above, the suit
property being agricultural land comes under the exclusive jurisdiction
of Revenue Court and the jurisdiction of Civil Court is barred in this
regard.
11.
From the above discussion, it can easily be observed that the
learned lower appellate Court has passed the impugned judgment after
properly evaluating the facts as well as available record. The said
judgment is based on reasoning. No misreading or non-reading of
evidence has been pointed out by the counsel for the appellant.
Civil Revision No.190-D of 2012
11.
The above principles were even reiterated in the case of
GHULAM RASOOL v. MUHAMMAD KHALID and 2 others (2006
YLR 2289) in the following manner: -
7. I have minutely considered the arguments of the learned
counsel for the parties and have examined the record appended herewith.
Document Exh.D.l, 'Wajab-ul-Arz' is not denied by both the parties. It is
also admitted between them that Shamlat Deh of village in question was
partitioned between the co-owners and this fact has rightly been noted in
Exh.D.l. The only controversy appears to be with regard to Khasra No.838
measuring 2 Kanals, 2 Marlas, which according to the petitioners fell to
their share at the time of partition as mentioned in Exh.D.1, whereas it is
claimed to be joint by the respondents under the same partition. According
to Exh.D.l area of entire Shamlat Deh is 105 Kanals, 19 Marlas, which
was partitioned among the owners on account of consolidation
proceedings and only those parts of Shamlat Deh were kept joint, which
were in common use, in form of passages, graveyards etc. and those parts
of Iand which were kept joint were decided that will not by used by
anybody exclusively. There is a copy of Jamabandi for the year 1953-54
on the record, which was prepared after creation of 'Wajab-ul-Arz'
Exh.D.1 and contains as entry in the column of ownership of Shamlat Deh
"Hasab Rasad Khewat Bando Bast 1910-11" regarding Khasra No.838 of
Khewat No.268, Khatoni No.500. This document shows that after partition
of Shamlat Deh Khasra No.838 fell to the share of Muhammad Din son of
Mehr Dad predecessor of the petitioners and that is why it was in his
possession after partition. According to learned counsel for the
respondents Khewat No.268 relates to land, which was kept joint in
Exh.D.1, at the time of first settlement in the year 1910-11. This Khewat
has six Khasra numbers besides Khasra No.838 and area of this Khata is
105 Kanals, 16 Marlas which, according to stance of the respondents,
being joint, was not brought under suit in hand, for partition. A part of
Khewat No.268 bearing Khasra No.838 is sought to be partitioned through
suit in hand, but this C course is not permissible under law. In a similar
situation, matter came up for consideration before a Division Bench of this
Court in the case of Chandi Shah v. Bahara Shaha and others (AIR 1930
Lahore 286(1)) and it was held that suit for partial partition should be
dismissed. In another matter Honourable Supreme Court of this country in
the case of Jan Muhammad and another v. Abdur Rashid and 5 others
(1993 SCMR 1463), it was mandated that entire joint holding should be
put to partition and part thereof which are not partitionable or under heavy
constructions, other co-sharers can be compensated by way of money and
it was so held on the principle that possession of one co-sharer in law is
possession of all the co-owners. Identical view was taken by an
Honourable Division Bench from Karachi jurisdiction in the case of Ghazi
Qaiser Pervaiz and another v. Ghazi Faisal Pervaiz and another (2000
CLC 519). Refusal to partition a part of joint holding, has wisdom behind
it because some parts of the joint holding may be of much more value, as
compared to its other parts. Party opting to come for partition, should not
be permitted to pick and chose and to have share in valuable parts of the
joint holdings by leaving out its parts with lesser value. Each owner is
owner of every inch of joint holding to the extent of his share and thus I
am of the considered view that a part of the joint holdings cannot be
permitted to be partitioned, leaving out major parts thereof, as joint,
Civil Revision No.190-D of 2012
Viewing the case in hand on this touchstone, though Khasra No.838 is
shown to be in exclusive possession of the petitioners, as noted above, yet
if at all, in submissions of the learned counsel for the respondents, is still
joint, even then this Khewat No.268 having in it other parts, as well as,
joint, which were not included in the suit in hand, suit for partition of only
one number Khasra to the advantage of the respondents, cannot be
allowed to be partitioned. Suit of the respondents being for partition of
part of the property, is not maintainable.
8. For what has been discussed above, I conclude that suit of the
respondents for partition of a joint holding was not maintainable, if at all
was joint, but both the Courts below did not advert to this aspect of the
case, out of non-consideration of documentary evidence on the file, as
such their judgments are tainted with non-reading of evidence, material
irregularity and illegality, hence are not sustainable at law. I accordingly
accept this revision petition set aside both the judgments and decrees dated
4-1-2003 and 18-10-2003 passed by Civil Judge and Additional District
Judge, Gujrat, respectively, and dismiss the suit for partition filed by the
respondents, with costs throughout.
12.
In MUHAMMAD ALAM and 6 others V. SENIOR MEMBER
BOARD OF REVENUE and 28 others (PLD 2020 Peshawar 101),
learned Peshawar High Court ruled as under: -
4.
The record transpired that the partition application
No.120/DDO regarding partition of Khasra No.2401 was adjourned
sine die vide order dated 17.01.2013 till the end of snowfall, whereas,
rest of the proceedings in the connected partition applications
pertaining to other joint Khasras were directed to be carried out. As all
the parties were joint owners in all the Khasra numbers under partition,
therefore, no proper partition could be conducted by the exclusion of
Khasra No.2401. The Addl. Assistant Commissioner-II (AAC-II)
Mansehra instead of processing all the cases jointly divided the
partition proceedings in two parts; and thereby it becomes impossible
to partition the land in accordance with the kind of land and
proportionate share of each joint owner. Therefore, it was required to
keep all the petitions pending till the end of snowfall and then to
proceed ahead with the same. Instead, the AAC-II in a slipshod manner
excluded Khasra No.2401 from partition with rest of the Khasras. It is
very unfortunate that the petitioners, who are having possession over
the Khasra No.2401, succeeded in lingering-on the proceedings over a
period of seven years, then what to say about the duration of snowfall
which ended much before in the year 2013.
5.
Partial partition cannot be allowed and the entire properties
owned by the parties should be included in the partition to safeguard all
the co-owners from being discriminated and thus the entire corpus is
placed in a common pool for the Court to ensure that each co-owner is
allotted his share equitably depending on the value thereof, which
would surely be dependent upon the area, location and the nature of the
property. Reliance in this regard is placed on the case titled, Ghulam
Rasool and another v. Muhammad Khalid and 2 others (2006 YLR
Civil Revision No.190-D of 2012
2289) wherein it was held:
A part of Khewat No.268 bearing Khasra No.838 is sought to be
partitioned through suit in hand, but this course is not permissible
under law. In a similar situation, matter came up for consideration
before a Division Bench of this Court in the case of Chandi Shah v.
Bahara Shaba and others (AIR 1930 Lahore 286(1)) and it was held
that suit for partial partition should be dismissed. In another matter
Honourable Supreme Court of this country in the case of Jan
Muhammad and another v. Abdur Rashid and 5 others (1993 SCMR
1463), it was mandated that entire joint holding should be put to
partition and part thereof which are not partitionable or under heavy
constructions, other co-sharers can be compensated by way of money
and it was so held on the principle that possession of one co-sharer in
law is possession of all the co-owners. Identical view was taken by an
Honourable Division Bench from Karachi jurisdiction in the case of
Ghazi Qaiser Pervaiz and another v. Ghazi Faisal Pervaiz and another
(2000 CLC 519). Refusal to partition a part of joint holding, has
wisdom behind it because some parts of the joint holding may be of
much more value, as compared to its other parts. Party opting to come
for partition, should not be permitted to pick and choose and to have
share in valuable parts of the joint holdings by leaving out its parts with
lesser value. Each owner is owner of every inch of joint holding to the
extent of his share and thus I am of the considered view that a part of
the joint holdings cannot be permitted to be partitioned, leaving out
major parts thereof, as joint.
6.
This Court adopted the said view in the case of Muhammad
Ayaz (PLD 2016 Peshawar 8). Besides, this Court in Syed Azhar
Hussain Shah's case (2016 YLR 1489) held:
"Partial partition should not be allowed and the entire properties
owned by the parties shall be included in the application irrespective of
the possession of properties."
7.
In view of the foregoing there is no illegality, irregularity or
perversity in the impugned orders which are as such maintained. The
learned counsel for petitioners was unable to point out any
jurisdictional error in the impugned orders calling for interference by
this Court in exercise of its extraordinary constitutional jurisdiction.
Accordingly, the partition proceedings so conducted in the exclusion of
Khasra No.2401 are declared as null and void. The AAC/lower revenue
forum is however, directed to depute a Tehsildar or Naib Tehsildar to
derive a fresh mode of partition in respect of all the Khasra numbers;
and then the fate of all the partition applications shall be decided
simultaneously but not later than six months.
8.
For what has been discussed and observed above, there is no
merit in this Writ Petition which is thus dismissed.
13.
There is yet another important aspect that “respondents”
initially moved an application under Section 135 of the “Act, 1967”
seeking partition of Khewat No.539/1352, Khasra No.1195 before
Tehsildar/Assistant Collector, Chakwal, which was declined vide orde
Civil Revision No.190-D of 2012
dated 21st April, 1992. Order of the Collector was then assailed in appeal
before the Deputy Commissioner/District Collector, Chakwal but the
appeal was dismissed vide order dated 8th March, 1993 with the
following observations: -
“7.
From perusal of record it is evident that the appellants filed
application for partition of land entered in Khasra No.1195 and not
the entire khewat whereas they could do so only with the consent of
the other co-sharers. As such partition application being partial is not
maintainable in the eyes of law. Thus without going into the details of
question of ‘Khangi Taqseem’ the appeal is dismissed.”
It is strange that leaving those proceedings in the way, the “respondents”
instituted a civil suit.
14.
It is trite law that the moment a party to lis intended to
commence any legal proceedings to enforce any right and or invoke a
remedy to set right a wrong or to vindicate an injury, he had to elect and
or choose from amongst host of actions or remedies available under the
law. The choice to initiate and pursue one out of host of available
concurrent or co-existent proceedings/actions or remedy from a forum of
competent jurisdiction vested with that party but when once choice was
exercised and election was made then such party is precluded from
launching another proceedings to seek a relief or remedy contrary to
what would be claimed and or achieved by adopting other
proceeding/action and or remedy, which in legal parlance is recognized
as “doctrine of election”. The edifice of “doctrine of election” is
structured and founded by the courts of law from the well-recognized
principles of waiver and or abandonment of a known right, claim,
privilege or relief as contained in Order II Rule 2 of “CPC”, principles
of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order,
1984 and principles of res-judicata as enshrined in Section 11 of “CPC”.
To understand the object and scope of “doctrine of election” one can
seek guidance from the principles laid down by the Hon’ble Suprme
Court of Pakistan in the case of “TRADING CORPORATION OF
Civil Revision No.190-D of 2012
PAKISTAN versus DEVAN SUGAR MILLS LIMITED and others” (PLD
2018 Supreme Court 828). The relevant extract from the same is
reproduced below:-
“8……..The moment suitor intends to commence any legal
action to enforce any right and or invoke a remedy to set right a
wrong or to vindicate an injury, he has to elect and or choose
from amongst host of actions or remedies available under the
law. The choice to initiate and pursue one out of host of available
concurrent or co-existent proceeding/ actions or remedy from a
forum of competent jurisdiction vest with the suitor. Once choice
is exercised and election is made then a suitor is prohibited from
launching another proceeding to seek a relief or remedy contrary
to what could be claimed and or achieved by adopting other
proceeding/action and or remedy, which in legal parlance is
recognized as doctrine of election, which doctrine is culled by
the courts of law from the well-recognized principles of waiver
and or abandonment of a known right, claim, privilege or relief
as contained in Order II, rule (2) C.P.C., principles of estoppel as
embodied in Article 114 of the Qanun-e-Shahadat Order 1984
and principles of res-judicata as articulated in section 11, C.P.C.
and its explanations. Doctrine of election apply both to the
original proceedings/action as well to defences and so also to
challenge the outcome on culmination of such original
proceedings/ action, in the form of order or judgment/decree (for
illustration it may be noted that multiple remedies are available
against possible outcome in the form of an
order/judgment/decree etc. emanating from proceedings of civil
nature, which could be challenged/defended under Order IX, rule
13 (if proceedings are ex-parte), section 47 (objection to
execution), section 114 (by way of review of an order), section
115 (revision), under Order XXI, rules 99 to 103 C.P.C. and
section 96 C.P.C. (appeal against the order/judgment) etc.
Though there is no bar to concurrently invoke more than one
remedy at the same time against an ex-parte order/judgment.
However, once election or choice from amongst two or more
available remedy is made and exhausted, judgment debtor cannot
ordinarily be permitted subsequently to venture into other
concurrently or coexisting available remedies. In a situation
where an application under Order IX, rule 13, C.P.C. and also an
application under section 12(2), C.P.C. seeking setting aside of
an ex-parte judgment before the same Court and so also an
appeal is filed against an ex-parte judgment before higher forum,
all aimed at seeking substantially similar if not identical relief of
annulment or setting aside of ex-parte order/judgment. Court
generally gives such suitor choice to elect one of the many
remedies concurrently invoked against one and same ex-parte
order/judgment, as multiple and simultaneous proceedings may
be hit by principle of res-subjudice (section 10, C.P.C.) and or
where one of the proceeding is taken to its logical conclusion
then other pending proceeding for the similar relief may be hit by
principles of res-judicata. Giving choice to elect remedy from
amongst several coexistent and or concurrent remedies does n
Civil Revision No.190-D of 2012
frustrate or deny right of a person to choose any remedy, which
best suits under the given circumstances but to prevent recourse
to multiple or successive redressal of a singular wrong or
impugned action before the competent forum/court of original
and or appellate jurisdiction, such rule of prudence has been
evolved by courts of law to curb multiplicity of proceedings. As
long as a party does not avail of the remedy before a Court of
competent jurisdiction all such remedies remain open to be
invoked. Once the election is made then the party generally,
cannot be allowed to hop over and shop for one after another
coexistent remedies. In an illustrative case this court in the case
of Mst.Fehmida Begum v. Muhammad Khalid and others (1992
SCMR 1908) encapsulated the doctrine of election as follows:
"However, it is one thing to concede a power to the statutory
forum to recall an order obtained from it by fraud, but
another to hold that such power of adjudication or
jurisdiction is exclusive so as to hold that a suit filed in a
civil Court of general jurisdiction is barred. I am therefore in
agreement with my brother that a stranger to the
proceedings, in a case of this nature has two remedies open
to him. He can either go to the special forum with an
application to recall or review the order, or file a separate
suit. Once he acts to invoke either of the remedies, he will, on
the general principles to avoid a conflict of decisions,
ultimately before the higher appellate forums, be deemed to
have given up and forfeited his right to the other remedy,
unless as held in Mir Salah-ud-Din v. Qazi Zaheer-ud-Din
PLD 1988 SC 221, the order passed by the hierarchy of
forums under the Sindh Rented Premises Ordinance, leaves
scope for approaching the Civil Court."
9. In the case of Behar State Co-operative Marketing Union Ltd.
v. Uma Shankar Sharan and another [(1992) 4 Supreme Court
Cases 196] Indian Supreme Court confronted with somewhat
identical situation as to availability of plurality of remedies under
a statute in paragraph No.6 at page 199 concluded as follows:
"6. Validity of plural remedies, if available under the law,
cannot be doubted. If any standard book on the subject is
examined, it will be found that the debate is directed to the
application of the principle of election, where two or more
remedies are available to a person. Even if the two remedies
happen to be inconsistent, they continue for the person
concerned to choose from, until he elects one of them,
commencing an action accordingly."
The above principles were further reiterated in the recent judgment
reported as “JUBILEE GENERAL INSURANCE CO. LTD., KARACHI
versus RAVI STEEL COMPANY, LAHORE” (PLD 2020 Supreme
Court 324).
Civil Revision No.190-D of 2012
15.
The nutshell of above discussion is that suit instituted by the
“respondents” was for partial partition and as such same was not
proceedable. There are though concurrent findings but same are tainted
with material illegalities and material irregularities, which cannot sustain
in the eye of law. Resultantly this petition is allowed and impugned
judgments and decrees dated 20th February, 2012 and 15th February,
2011 are set aside. As a result thereof, suit instituted by the
“respondents” is dismissed with no order as to costs.
(MIRZA VIQAS RAUF)
JUDGE
Approved for Reporting.
JUDGE
Hello sir , mera ek question hai agar help kar dain to kaafi madad hogi meri,
ReplyDeleteMere Dada Ne Ghar mere baba ke naam pe kia tha jiska hamare pas saboot hai aur dada be jab ghar kharida tha wo saboot bhi hai , par mere baba ka ek bhai aur behn bhi thay jinho ne us waqt paise le liye thy hise ki jaga, ab mere baba ki death howay bohut saal ho gaye aur baba ke bhai aur behn ki bhi death ho chuki hai, par chachi ya unke bachy ghar par sa khala ke bachy ghar per case kar sakte hain kynke ab unke pas paise nahi , case ka sab saman to hai par adalat ke dhake lag sakte hain in future , to kia is soorat main us ghar ko bech dena chahiye?
Aoa jab Ghar app ke walid ke nam ha wo bhi aaj ka nhi bht purana ha or aap ke walid sab ki zindagi ma unho ne intiqal ko challenge nahi kia tu aab bhi un ko kuch nhi milna
Delete