PARTITION SUITS AND ITS METHODOLOGY

By
ABDUL ZAKIR TAREEN
Advocate, High Court, Peshawar.
In Courts of Pakistan huge number of partition suits are pending adjudication.
As there is no proper mechanism with revenue hierarchy/revenue
department or other law enforcing institutions to make partitions of
properties without constraining the owners to approach the Courts of law.
The difference of opinion and ill-union ship is a natural thing in a society and
normally the people cannot survive in joint venture and to live an
independent life or to utilize the property in his own manner, they are
constrained to get divide their properties but through the course of law.
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 Communion 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 Civil Court.
In case titled: Mst. Farzana Vs Mst. Sehti, reported in 2012 PLD 241
Karachi, it was held that, "Revenue Officer while deciding questions as to
property to be partitioned or mode of its partition would act only as Revenue
Officer, but not as a revenue Court or civil Court".
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 Civil Court for deciding
matter of title to the immovable property. In case titled: Muhammad Yousaf
Khan Vs Board of Revenue, reported in 2002 CLC 739 Supreme Court
Azad Kashmir, it is held that, "Where question of title would arise in property
to be partitioned, Revenue Officer could himself determine question of title or
refer matter to Civil Court for its determination".
(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 Quetta, b. 2011 SCMR 1460,
c. 2010 MLD 1596 Quetta, d. 2007 SCMR 729 Citation (n).
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 Lahore, it is held that, "Private Partition between the parties--
—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 Lahore, it is held that, "suit for permanent injunction
against the other co-sharers was not maintainable except by bringing a suit
for partition of joint property".

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 Appellate/District Court;
(iii) Six years in Revisional/High Court; and
(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 Quetta, it was held that,
"Section 54 and O.XX, R. 18, C.P.C. were to be observed while deciding the
issues of partition".
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) Naqsha Bay will show proposed Khasrawise shares of parties and
basically in this document the mode of partition is determined and
proposed Tatimaas are curved out. Basically this document denotes the
division of shares and in Urdu it is known as (‫بٹوار نقشہ‬،‫)ب‬.
(iii) Naqsha Jeem will show the proposal regarding the partition
mutation and in urdu it is known as (‫)جدائی ج نقشہ‬.
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 Peshawar, the august Court held that, "Mere entry
of partition mutation, could not be declared to be sufficient enough to have
the protection of law". If other steps have not been taken in respect of the
affirmation of the private partition, i.e. inquiry about private partition, passing
of order of affirmation of private partition, administration of property
excluded from partition, distribution of revenue and rent amongst the co-
owners after partition, instrument of partition and delivery of possession to
all the concerned co-sharers according to the partition so reached between
the parties.
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
Karachi, it is held that, "Co-owner in possession to the exclusion of other co-
owner in such case, could be held liable to the extent of his unauthorized or
hostile occupation, possession or enjoyment thereof. Once a person
established and Court came to a conclusion that person was entitled to any
right or share in the property; and he was being deprived of use of such right
or share in property by the other person, then the owner who was out of
possession or enjoyment would become entitled to claim those profits actually
received by person in unlawful possession or enjoyment of such part thereof,
as the case could be".
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 Lahore, it is held that, "any transfer out of joint khata even with regard
to specific khasra number is always subject to final adjustment of partition. No
person can claim his exclusive ownership with regard to a specific khasra
number on the ground of having been purchased by him to the exclusion of
other co-sharer".
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 Lahore, it is held that, "Dispute among co-sharers with respect
to possession of their property could be settled through partition of the same
from a competent Court".
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 Lahore, it is held that "So long land in dispute
remained joint and final decree was not drawn up, any necessary party being
vested with title or interest therein, could be impleaded".
ALIENATION OF PROPERTY/POSSESSION OF CO-SHARER IN JOINT
KHATA:
In case titled: Muhammad Bashir Vs Noor Rehman, reported in 2011 MLD
1518 Lahore, the august Court held that, "Co-sharer in possession of specific
property not beyond his share could protect his possession till taking place of
partition in accordance with law".
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 Peshawar, it is held that, "Co-owners in
possession of specific area can alienate same subject to final adjustment at
time of actual partition".
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 Karachi, it is held that, "Co-owners
would have equal right in every part of property until a regular partition was
affected. Merely because defendant was in occupation of front portion of
property purporting to be of higher value would not give him right to more
benefit than what was possessed by plaintiff. Concept of owelty was not
applicable to such case".
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 Pakistan are to be made regularly and at the time
of settlement, if the revenue officers found any joint property as impliedly
divided by co-sharers through an implied/silent private partition, to give it
effect in the record without constraining them to have a recourse of litigation.
Secondly it is also inevitable that the Hon'ble Supreme Court of Pakistan like
laid downing the procedure in rent cases, as evident from Barkat Ali case
2000 SCMR 556, also considered the question of partitions for facilitating the
people of Pakistan.