JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT

Civil Revision No.364-D of 2010

Zia ud Din etc.
Versus
Malik Humayun Irfan etc.

Civil Revision No.531 of 2009

Malik Aamir Ali Khan

Versus
Malik Humayun Irfan etc.

Date of hearing: 27.09.2022

Petitioners by:- Mr. Muhammad Ilyas Sheikh,

Advocate in CR No.364-D of
2010.
Sheikh Zameer Hussain, Advocate
in CR No.531 of 2009.

Respondents by: Malik Itaat Hussain Awan,

Advocate.

SADAQAT ALI KHAN, J. Petitioners have

filed titled civil revisions against the impugned judgments
and decrees of learned Courts below which are being
decided through this single judgment.

2. Heard. Record perused.

3. Decree is defined in Section 2 Sub-Clause (2) of the

Civil Procedure Code, 1908 (“CPC”) which is hereby
reproduced: -

“(2) “decree” means the formal expression of an adjudication

which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any
of the matters in controversy in the suit and may be either
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Civil Revision No.531 of 2009

preliminary or final. It shall be deemed to include the

rejection of a plaint [the determination of any question
within section 144, and an order under rule 60, 98, 99, 101
or 103 of Order XXI] but shall not include—

(a) any adjudication from which an appeal lies as an

appeal from an order, or

(b) any order of dismissal for default.

Explanation.— A decree is preliminary when further
proceedings have to be taken before the suit can be
completely disposed of.
It is final when such adjudication completely disposes of the
suit. It may be partly preliminary and partly final.”

4. Preliminary decree is passed in a partition suit

relating to immovable property in view of Order XX Rule
18 sub-rules (1) and (2) CPC which is hereby
reproduced:-
“ORDER XX
JUDGMENT AND DECREE
“18. Decree in suit for partition of property or separate
possession of a share therein.--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.
(2) If and in so far as such decree relates to any
other immovable property or to movable property, the
Court may, if the 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.”

Sub-rule 2 reproduced above relates to a partition of

movable or immovable property not covered by sub-rule
(1) reproduced above, as in present case, suit property
having some construction over it has lost its agricultural
status.

5. Above provisions of law show that preliminary

decree in partition suit of immovable property determines
the rights/shares of as many parties as interested in the
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property. However, the question, as to whether a property

is joint one, is to be determined prior to preliminary
decree. A preliminary decree only comes out as a
consequence of determination of substantive rights of the
parties. The Court while passing preliminary decree after
determination of right and share of each party in a
partition suit of immovable property appoints local
commission to prepare the mode of partition/divide the
property into as many shares as may be directed by the
order under which the commission was issued, and shall
allot such shares to the parties, and may, if authorized
thereto by the said order. For ease, relevant Order XXVI
Rule 14 CPC is hereby reproduced: -
“ORDER XXVI
COMMISSIONS
Commissions to Examine Witnesses
14. Procedure of Commissioner.—(1) The
Commissioner shall, after such inquiry as may be necessary,
divide the property into as many shares as may be directed
by the order under which the commissioner was issued, and
shall allot such shares to the parties, and may, if authorized
thereto by the said order, award sums to be paid for the
purpose of equalizing the value of the shares.

(2) The Commissioner shall then prepare and sign a

report or the Commissioners (where the commission was
issued to more than one person and they cannot agree) shall
prepare and sign separate reports appointing the share of
each party and distinguishing each share (if so directed by
the said order) by metes and bounds. Such report or reports
shall be annexed to the commission and transmitted to the
Court; and the Court, after hearing any objections which the
parties may make to the report or reports, shall confirm,
vary or set aside the same.

(3) Where the Court confirms or varies the report or

reports it shall pass a decree in accordance with the same as
confirmed or varied; but where the Court sets aside the
report or reports it shall either issue a new commission or
make such other as it shall think fit.”

Local Commission has no power to determine the

right/share of any party to suit for partition of immovable
property, it is appointed only to prepare the mode of
partition at the spot in view of the shares determined by
the Court in preliminary decree. The local commission
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Civil Revision No.531 of 2009

cannot assume the role of the Court, rather only can

propose the allotment of specified share to the parties
determined in preliminary decree. In present case mode
of partition was prepared on the basis of preliminary
decree wherein shares of the parties have not been
determined, to be given during mode of partition, such
mode of partition is not sustainable. Local commission
has not appeared in support of its report which was
tendered as “Mark-C”. “Naqsha Jeem” was also prepared
in this case illegally by the local commission which is
prepared by the revenue official i.e “Girdawar”, on the
direction of Assistant Collector/Revenue Officer after
acceptance of application for partition of joint
agricultural land and was tendered as “Mark-D”. The law
is settled by now that the document, which has not been
produced and proved in evidence but only marked,
cannot be taken into account as a legal evidence of fact
by the Courts.

6. In the present case, suit filed by Malik Humayun

Irfan plaintiff (respondent) for possession through partition
of land measuring 1-Kanal 13-Marlas out of land
measuring 18-Kanals pertaining to Khasra No.5090,
Khatoni No.1435, Khewat No.551 situated within the
revenue estate of Pindi Gheb along with four old shops,
one store, three havelis and four new shops, detail of
which is mentioned in the headnote of amended plaint,
was preliminary decreed vide judgment and decree dated
02.10.2007, perusal of which shows that learned trial
Court in any manner has not determined the right/share
of each party to partition suit of immovable property.
Evidence of the parties has not been recorded and
documentary evidence has also not been produced.
Shares of the parties are also not mentioned in the plaint
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as well as in the written statements. Such preliminary

decree without determination of the shares of the parties
being defective one is neither sustainable nor executable.
The law is settled by now that when basic
order/judgment/decree is found illegal or void then the
entire superstructure built on it falls on the ground
automatically.

7. Preliminary decree under challenge is ex-parte to

the extent of the petitioners (defendants) in Civil Revision
No.364-D of 2010 who have challenged the same on
10.01.2008 by filing application for setting-aside ex-parte
proceedings dated 13.09.2007 and judgment and decree
dated 02.10.2007 stating therein that on 04.01.2008
they came to know about the proceedings of this case
which is within 30-days of limitation period as mentioned
in Article 164 of Limitation Act, 1908 (“Act”) wherein it is
specifically mentioned that time for filing of application to
set-aside a decree passed ex-parte is 30-days from date
of decree or where the summons were not duly served as
in present case when the applicant has knowledge of the
decree. This application was contested by Malik
Humayun Irfan plaintiff/respondent by submitting
written reply. Learned trial Court dismissed this
application on flimsy grounds while passing the final
judgment and decree dated 04.02.2008 without deciding
it separately. Appeal/appeals filed by the petitioners in
both the Civil Revisions met the same fate. Presence of
petitioners in Civil Revision No.364-D of 2010 is not
marked in attendance sheet issued by local commission.
The documents annexed with the judicial file do not show
that the petitioners (defendants) in Civil Revision No.364-D
of 2010 ever had knowledge of pendency of the suit prior
to 04.01.2008. On 07.12.2006 suit was filed. Petitioners
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Civil Revision No.531 of 2009

in Civil Revision No.364-D of 2010 along with other

defendants were summoned for 21.12.2006 through
registered post and process agency. Summons through
registered post were issued on 09.12.2006 for the
attendance of petitioners of Civil Revision No.364-D of
2010 (defendants No.5,6 and 14) at the address of Pindi Gheb,
which were returned unserved, three original envelopes
and acknowledgment due are available on file. Summons
issued on 07.12.2006 for the attendance of petitioners
(defendants No.5,6 and 14) for 21.12.2006 available on judicial
file show that petitioner No.1 (defendant No.5) and petitioner
No.2 (defendant No.6) are residing at Rawalpindi whereas
petitioner No.3 (defendant No.14) at Lahore. It is important to
note here that before 21.12.2006 amended plaint with
the order of the Court has been filed. On 21.12.2006 in
view of report made by the process server at back of
summons issued to petitioners (defendants No.5,6 and 14) that
they were not residing at the addresses given by the
plaintiff in the plaint, rather were residing at Rawalpindi
and Lahore, it was ordered for submission of their correct
addresses on 12.01.2007 i.e next date of hearing, on this
date, again request for amendment in the plaint was
made, case was adjourned for 26.01.2007, on said date,
the amended plaint was submitted but case was not
adjourned for summoning of petitioners (defendants No.5,6 and
14), rather was adjourned to 09.02.2007 for arguments on
application for temporary injunction/amendment of the
plaint. On 09.02.2007 again case was adjourned on the
request of parties appearing therein for 14.02.2007. On
this date, it was again adjourned for arguments i.e
16.02.2007. On 16.02.2007, arguments were heard and
matter was adjourned for order i.e 23.02.2007, which
was again adjourned to 02.03.2007, 09.03.2007,
13.03.2007 and 15.03.2007. On 15.03.2007 application
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for amendment in plaint was accepted with the direction

to submit amended plaint on 30.03.2007. On this date
second time petitioners (defendants No.5,6 and 14) were
summoned through registered post and process agency
for 19.04.2007. On this date, original envelope of
registered post along with acknowledgement statedly
posted to petitioners (defendants No.5,6 and 14) is not available
on judicial file. Summons were received back with report
that petitioners (defendants No.5,6 and 14) were residing at the
addresses different from the addresses mentioned in the
plaint. Amended plaint dated 30.03.2007 shows that new
addresses of petitioners (defendants No.5,6 and 14) were added.
On the next dates i.e 03.05.2007, 31.05.2007,
27.06.2007 and 10.07.2007 statedly summons were
issued to the petitioners (defendants No.5,6 and 14) for their
attendance but did not receive back. Receipts of
registered post available on judicial file of Civil Court
show that on 03.04.2007 summons through registered
post were issued to petitioners (defendants No.5,6 and 14) but
same did not receive back, thereafter, on 20.07.2007
substituted mode i.e summoning of petitioners (defendants
No.5,6 and 14) was ordered through publication in daily
newspaper “DIN”, which is not a famous newspaper, for
13.09.2007 on which date petitioners (defendants No.5,6 and 14)
were proceeded ex-parte. It is important to note here that
learned Civil Court has not recorded the statement of
postman to satisfy itself that petitioners (defendants No.5,6 and
14) were intentionally avoiding service. Likewise,
statement of process server has also not been recorded to
ensure that after espousing all due and reasonable
diligence, he cannot find out the petitioners and there is
no person on whom service can be made and he has
affixed a copy of the notice on the outer door or some
other conspicuous part of the house and returned the
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original to the Court with such report which is the

mandate of the scheme referred in Order V of the CPC.
Substituted mode of service (publication in newspaper) could
only be issued, if all other provided modes were availed of
and it was proved that either defendant refused or
avoided to receive the process, but service through
substituted mode (publication in newspaper) could not be
ordered merely because the defendant was resident of
different district or relative of the plaintiff.

8. It is important to note here that petitioner No.3 in

Civil Revision No.364-D of 2010 was neither proceeded
ex-parte nor publication in daily “DIN” has been made in
this respect.

9. Malik Humayun Irfan plaintiff (respondent No.1 in Civil

Revision No.364-D of 2010) filed suit for partition to separate his

share of 1-Kanal 13-Marlas but local commission has
proposed to give him 4-Kanals 14-Marlas in Khasra
No.5090/6 along with others illegally.

10. The argument of learned counsel for the petitioner

in Civil Revision No.531 of 2009 that frontage has not
been given to the petitioner according to his share and no
formula has been devised by the local commission in this
respect, has substance.

11. The argument of learned counsel for Malik

Humayun Irfan plaintiff (respondent) that Civil Revision
No.364-D of 2010 is time-barred, has no substance.
Perusal of record shows that judgment and decree of
appellate Court were passed on 16.04.2009, Civil
Revision No.364-D of 2010 was filed on 16.07.2009 and
was returned to the petitioners (defendants No.5,6 and 14) on
29.04.2010 for removal of objections which was
resubmitted on the same day after removal of the
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objections which is mentioned in the report submitted by

the office available on the file. Reliance is placed on para
25 of the judgment reported at (PLD 2020 SC 736) “Asad
Ali and 9 others Vs. The Bank of Punjab and others”,
which is reproduced:-

“While going through Sabran Bi’s case, we notice that

distinction has been drawn between a situation where after
raising of objections by the-office the petitioner does not
receive back the file and a situation where the petitioner
receives back the file. The cases cited in which the petitioner
had received back the file after raising of objections by the
office and had not returned the same within the time
allocated by the office and which were therefore held to be
time-barred, were held to be distinguishable from cases
where the file had not been received back. It was held that
where the file had not been received back would not be held
to be time-barred and such cases should be fixed before the
court for appropriate Orders for non-prosecution or any
order in terms of Order VII, Rule 11 of the Civil Procedure
Code. It is also instructive to note that the LDA judgment
which as aforesaid was of three learned Judges of this Court
was distinguished on the ground that it pertained to a
situation where the file had been taken back by the Counsel,
meaning thereby that in the instant case where the file had
been taken back, even according to Sabiran Bi ibid, the
matter had to be decided in terms of the LDA case ibid,
which holds that failure to remove the objections within the
time fixed (where the file had been received back) renders the
appeal to be time-barred if in the time period between the
raising of objections and removal thereof the period of
limitation expires.”

12. In view of above discussion, both the Courts below

have committed illegality by dismissing the application of
the petitioners of Civil Revision No.364-D of 2010 for
setting aside ex-parte proceedings and preliminary decree
and appeals of petitioners in both Civil Revisions through
the impugned judgments and decrees which are not
sustainable. In these circumstances, both Civil Revisions
are allowed, application of petitioners of Civil Revision
No.364-D of 2010 for setting-aside ex-parte proceedings
is accepted, impugned judgments and decrees including
preliminary decree, ex-parte proceedings and report of
local commission are hereby set-aside, suit of respondent
No.1 is deemed to be pending in the learned Civil Court,
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petitioners in Civil Revision No.364-D of 2010 are

directed to submit their written statement on a date to be
fixed by it after receiving this judgment and shall proceed
in accordance with law and decide the lis expeditiously
preferably within a period of one month from the date of
submission of written statement. Record of the learned
Civil Court and learned Appellate Court be sent back
forthwith.

(SADAQAT ALI KHAN)

JUDGE

Approved for reporting.

JUDGE

Anwaar*