Partition Act, 1893 case laws

 Citation Name:   PLJ  2014  Lahore High Court   1187

Appelant Side:    ABDUL RAZZAQ and 5 others

V    e    r    s    u    s

Opponent Side:   ABDUL SATTAR and another

Judge Name:       Abdus Sattar Asghar

Other Law Journal References:    


civil procedure code, 1908 (v of 1908)-- ----o. xx, r. 18(2)--partition act, 1893, s. 2--constitution of pakistan, 1973, art. 199--constitutional petition--sale of property through open auction was challenged--mode of division to assess market value of property--valuation of joint property as assessed by local commission--objection petition against report of local commission--validity--it is an established principle that where property is not capable of convenient division court has inherent jurisdiction to adopt such other means as may be equitable including sale thereof--order of sale is to be executed as a decree and in manner as provided under order xxi of cpc--disagreement between parties on valuation of joint property trial court lawfully exercised jurisdiction through impugned order for putting joint property into sale through open auction in terms of section 2 of partition act, 1893 read with order 20 rule 18(2) of cpc so that sale proceed be distributed amongst all co-sharers in specified proportion. [pp. 1188 & 1189] a & b


Citation Name:   PLJ  2011  Lahore High Court   894

Appelant Side:    Mst. KAUSAR PARVEEN through General Attorney

V    e    r    s    u    s

Opponent Side:   RASHEED AHMAD and 45 others

Judge Name:       Rauf Ahmad Sheikh

Other Law Journal References:    


civil procedure code, 1908 (v of 1908)-- ----o. xx, r. 18(2)--partition act, (iv of 1893), ss. 2 & 3--suit for partition--property was not partitionable--rights of parties--validity--after passing of preliminary decree declaring rights of the parties, u/o. xx, r. 18(2), cpc in a suit for partition, court has to proceed further to partition it and then pass the final decree accordingly.

Citation Name:   PLJ  2011  Lahore High Court   894
Appelant Side:    Mst. KAUSAR PARVEEN through General Attorney
V    e    r    s    u    s
Opponent Side:   RASHEED AHMAD and 45 others
Judge Name:       Rauf Ahmad Sheikh
Other Law Journal References:    

partition act, 1893(iv of 1893)-- ----ss. 2 & 3--civil procedure code, (v of 1908)--s. 115--civil revision--suit for partition--property was not partitionable--purchase of specific portion in house and acceptation of same had been dealt in preliminary decree--option to purchase entire property--order for sale of property through auction was passed by trial court--challenge to--validity--if court arrived at conclusion that property was not divisible then might pass an order u/s. 2 of partition act, for putting to sale and distribution of sale proceeds to shareholders according to their entitlement--of course, in order to avoid transfer of property to a third person, u/s. 3 of act, 1893 one or more co-sharers had right to purchase entire property but in instant case, petitioner had not availed of that offer--petitioners had got time to settle the matter by private negotiations but no fruitful result could be achieved--trial court was not left with any other option but to put property to acution--impugned order passed by courts below did not suffer from any illegality or infirmity--revision was dismissed.

Citation Name:   PLJ  2002  Lahore High Court   1638
Appelant Side:    Sheikh IFTIKHAR AHMED and another
V    e    r    s    u    s
Opponent Side:   Dr. MUHAMMAD ILYAS
Judge Name:       SH. ABDUR RAZZAQ
Other Law Journal References:    

-s. 2 & 3-since no application u/section 2 of partition act 1893 has been moved which is a pre-requisite for moving an application u/section 3 of the partition act, so the trial court could not appoint a local commission to assess the value of suit property.

Citation Name:   PLJ  2002  Lahore High Court   1638
Appelant Side:    Sheikh IFTIKHAR AHMED and another
V    e    r    s    u    s
Opponent Side:   Dr. MUHAMMAD ILYAS
Judge Name:       SH. ABDUR RAZZAQ
Other Law Journal References:    

--ss 2 & 3--civil procedure code (v of 1908)--s. 115 s. 2 of partition act 1893 presupposes that such an application can only be moved by a share holder of /2 share or more in the suit property-admittedly there are three share holders of suit property out of whom one is petitioner whereas other are respondents nos. 1 & 2-it is thus clear that petitioner being 1/3 share holder in suit property could not move any application under section 2 of the partition act 1893 and as such application for sale of the suit property moved by petitioner by no stretch of imagination can be deemed to be an application under section 2 of partition act 1893.

Citation Name:   PLJ  2011  Lahore High Court   894
Appelant Side:    Mst. KAUSAR PARVEEN through General Attorney
V    e    r    s    u    s
Opponent Side:   RASHEED AHMAD and 45 others
Judge Name:       Rauf Ahmad Sheikh
Other Law Journal References:    

civil procedure code, 1908 (v of 1908)-- ----o. xx, r. 18(2)--partition act, (iv of 1893), ss. 2 & 3--suit for partition--property was not partitionable--rights of parties--validity--after passing of preliminary decree declaring rights of the parties, u/o. xx, r. 18(2), cpc in a suit for partition, court has to proceed further to partition it and then pass the final decree accordingly.

Citation Name:   PLJ  2011  Lahore High Court   894
Appelant Side:    Mst. KAUSAR PARVEEN through General Attorney
V    e    r    s    u    s
Opponent Side:   RASHEED AHMAD and 45 others
Judge Name:       Rauf Ahmad Sheikh
Other Law Journal References:    

partition act, 1893(iv of 1893)-- ----ss. 2 & 3--civil procedure code, (v of 1908)--s. 115--civil revision--suit for partition--property was not partitionable--purchase of specific portion in house and acceptation of same had been dealt in preliminary decree--option to purchase entire property--order for sale of property through auction was passed by trial court--challenge to--validity--if court arrived at conclusion that property was not divisible then might pass an order u/s. 2 of partition act, for putting to sale and distribution of sale proceeds to shareholders according to their entitlement--of course, in order to avoid transfer of property to a third person, u/s. 3 of act, 1893 one or more co-sharers had right to purchase entire property but in instant case, petitioner had not availed of that offer--petitioners had got time to settle the matter by private negotiations but no fruitful result could be achieved--trial court was not left with any other option but to put property to acution--impugned order passed by courts below did not suffer from any illegality or infirmity--revision was dismissed.

Citation Name:   PLJ  2002  Lahore High Court   1638
Appelant Side:    Sheikh IFTIKHAR AHMED and another
V    e    r    s    u    s
Opponent Side:   Dr. MUHAMMAD ILYAS
Judge Name:       SH. ABDUR RAZZAQ
Other Law Journal References:    

-s. 2 & 3-since no application u/section 2 of partition act 1893 has been moved which is a pre-requisite for moving an application u/section 3 of the partition act, so the trial court could not appoint a local commission to assess the value of suit property.

Citation Name:   PLJ  2002  Lahore High Court   1638
Appelant Side:    Sheikh IFTIKHAR AHMED and another
V    e    r    s    u    s
Opponent Side:   Dr. MUHAMMAD ILYAS
Judge Name:       SH. ABDUR RAZZAQ
Other Law Journal References:    

--ss 2 & 3--civil procedure code (v of 1908)--s. 115 s. 2 of partition act 1893 presupposes that such an application can only be moved by a share holder of /2 share or more in the suit property-admittedly there are three share holders of suit property out of whom one is petitioner whereas other are respondents nos. 1 & 2-it is thus clear that petitioner being 1/3 share holder in suit property could not move any application under section 2 of the partition act 1893 and as such application for sale of the suit property moved by petitioner by no stretch of imagination can be deemed to be an application under section 2 of partition act 1893.

Citation Name:   PLJ  2019  Lahore High Court   613
Appelant Side:    ALI KAMRAN
V    e    r    s    u    s
Opponent Side:   MUHAMMAD ASLAM
Judge Name:       RASAAL HASAN SYED
Other Law Journal References:    

partition act, 1893-- ----s. 4--evacuee property--transfer of property by settlement department--sale of property to extent of share--agreement to sell--suit for specific performance--decreed--suit for partition--appointment of local commission--report of local commission--filling of application--dismissed--appeal--dismissed--suit was decreed--execution proceedings--undivided family--throughout trial petitioners or their predecessor never pressed into service their alleged claim that property was an undivided dwelling belonging to "undivided family" which could not be partitioned or that they were willing to buy share/portion of bashir ahmad (predecessor of respondent nos.1 to 3) or that court should allow relief in terms of section 4 of act and dispose of matter accordingly--strangely enough petitioners opted to bring an application under section 4 of act on 30.9.2009 i.e. after a period of approximately 23 years from sale in favour of bashir ahmad and after 11 years from date of decree in partition suit--petitioners obviously could not be allowed to sleep over matter for 23 years and then rouse from slumber and expect indulgence of court for favorable consideration--conduct of petitioners and their predecessor demonstrated a case of waiver and in result they were estopped to raise plea under section 4 of act--facts of this case reflect a pathetic picture and condition of respondent litigants, who despite having a decree in their favour since 23.6.1998 were unable to reap fruits of decree and were being prevented from enforcing their rights by introduction of one frivolous objection petition after another--bashir ahmad, predecessor of respondent nos.1 to 3 who was fighting for his rights, died in hope of getting relief but was fortunate enough to avail benefit of decree--it is an extreme example of abuse of process of law and courts where judgment-debtor successfully obstructs implementation of decree for 21 years--sale in favour of bashir ahmad was made in terms of agreement of 1987--suit was decreed in 1993, suit for partition filed by him was decreed in 1998, but application under section 4 of act was filed on 30.9.2009, after eleven years of decree but with a stance that applicants were willing to purchase share of decree-holder, against price of rs. 1,30,000/- which decree-holder had paid in 1987 to vendor for his share--obviously with expiry of 21 years from date of sale agreement value of property, which is statedly located in heart of a commercial center, must have increased manifold and, therefore, offer on face of it reflected mala fide to blackmail and harass decree-holder and to compel capitulation to illegal wishes by fear of prolongation of proceedings in execution petition--such tactics which are deemed to be evidence of unscrupulous behavior could not be countenanced or approved, more so, in revisional jurisdiction which is equitable and discretionary in nature--revision petition dismissed. [pp. 616, 617, 619, 620 & 621] a, b, c & d 2004 scmr 47 & 1991 mld 250, ref.

Citation Name:   PLJ  2012  Karachi High Court   89
Appelant Side:    ILYAS AHMED
V    e    r    s    u    s
Opponent Side:   MUHAMMAD MUNIR & 10 others
Judge Name:       Muhammad Ali Mazhar
Other Law Journal References:    

partition act, 1893 (iv of 1893)-- ----s. 4--share of dwelling house--transfer of share in property by one of two or more co-owners of immoveable property--validity--where a share of dwelling house belonging to an undivided family had been transferred to a person, who was not a member of such family being share-holder would undertake to buy share of such transferee, make valuation of such share in holder and might give all necessary and proper directions in that behalf--but again no relief had been claimed that plaintiff was ready to buy out the share of transferee.

Citation Name:   PLJ  2012  Karachi High Court   89
Appelant Side:    ILYAS AHMED
V    e    r    s    u    s
Opponent Side:   MUHAMMAD MUNIR & 10 others
Judge Name:       Muhammad Ali Mazhar
Other Law Journal References:    

transfer of property act, 1882 (iv of 1882)-- ----s. 4--partition act, (v of 1893)--s. 4--muhammadan law--ss. 280 & 231--sale of undivided part of the property--co-sharer of property was owner of every inch and cannot be transferred to outsider unless join property was properly partitioned--co-sharer cannot sell out their share without the consent other co-sharer--pleas were not raised in plaint--validity--it is settled principle of law that parties are bound by their pleadings and the plea which has not been raised cannot be taken subsequently in arguments--nothing had said in plaint that property was a dwelling house, same could not be transferred/sold out by co-sharers unless partition was made--high court had no hesitation to hold in absence of pleadings, no such plea could be raised or argued--even if evidence was allowed to be led, no issue could be framed by court beyond scope of pleadings of the parties--transferee of a share of dwelling house belonging to a undivided family and rider had been added that if transferee of a share in dwelling house was not a member of undivided family nothing in s. 44 would be deemed to entitle to joint possession or common enjoyment of house--transferee of a share of dwelling house belonging to undivided family, who was not a member of family would not be entitled to joint possession--plaint had not been drafted in such a way to bring the suit within parameters and ambit of s. 44 of t.p.a, where court could grant any appropriate relief--plaint was rejected.

Citation Name:   PLJ  2011  Karachi High Court   88
Appelant Side:    MUHAMMAD ZAFAR SIDDIQUI and 2 others
V    e    r    s    u    s
Opponent Side:   MUHAMMAD QAMAR SIDDIQUI and another
Judge Name:       Irfan Saadat Khan
Other Law Journal References:    

civil procedure code, 1908 (v of 1908)-- ----o. xx, r. 12--partition act, (iv of 1893), s. 4--partition among co-sharers--principle--recovery of mesne profits--plaintiffs were co-sharers in suit property who sought partition of the same and also sought recovery of mesne profits from defendants for using the property in excess of their share--validity--both the parties were co-owners to the extent of 50% of property, there was nothing on record to show that there was any other claimant to the suit property--no rebuttal on the part of defendants, being available on record, therefore, no exception to judgment directing preparation of preliminary decree could be taken--entitlement of plaintiffs to suit property was established, therefore, partition and division of property could not be denied, unless it was shown that such property was incapable of division and partition--once it was established and court had come to the 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 the property by other person, then the owner, who was out of possession or enjoyment, such person was entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof--plaintiffs were entitled to mesne profit to the extent of their shares/right or interest in the property--plaintiffs had filed a chart of determination of mesne profits but that could not be considered as a positive evidence led by plaintiffs without certainty as to the actual income or benefit derived by plaintiffs in enjoyment of the suit property--decree in terms of o.xx, r.12, c.p.c., was ordered to be prepared and after holding such inquiry as could be necessary, the final decree could be prepared--high court directed that no mesne profit could be calculated beyond the period of three years from the date of filing of suit--suit was decreed.

Citation Name:   PLJ  2010  Lahore High Court   176
Appelant Side:    CH. GHULAM MUSTAFA
V    e    r    s    u    s
Opponent Side:   Mst. RIZWANA SHAHEEN and 3 others
Judge Name:       Syed Mansoor Ali Shah
Other Law Journal References:    2010 CLC 267

----s. 4--payments constitute property and need to be apportioned at the time of partition--where sale of the property can be made in case the property is not divisible--validity--if at the time of sale the debts/claims attached to the property can be considered, why the principle cannot apply at the time of partition of the property--claims cannot be limited to the third party only--one of the co-sharers can also have a claim on the property which is required to be settled or set off at the time of partition like any other claim.

Citation Name:   PLJ  2016  Islamabad High Court   401
Appelant Side:    MUHAMMAD ZULFIQAR and another
V    e    r    s    u    s
Opponent Side:   ADDITIONAL DISTRICT JUDGE (WEST), ISLAMABAD and others
Judge Name:       MIANGUL HASSAN AURANGZEB
Other Law Journal References:    

partition act, 1893 (iv of 1893)-- ----ss. 6(1)(2) & 7--civil procedure code, (v of 1908), o.xxix, r. 72(1)--constitution of pakistan, 1973, art. 199--constitutional petition--executing court--joint properties--auction of suit properties--report of local commission--market value of suit properties--properties could not be partitioned or sub-divided--appointment of court auctioneer--question of--whether high court can permit co-owner to bid for suit properties in auction process--validity--order xxi, rule 72, c.p.c. would also be applicable to sale of a property through an auction in pursuance of a preliminary decree passed in a suit for partition of a joint property under provisions of partition act, 1893--when a preliminary decree for partition of property is passed under provisions of partition act, all co-owners of property to be partitioned, be plaintiffs or defendants, attain status of decree holders--it is essential for a decree holder to obtain permission of court to bid for property to be auctioned--no permission is required by co-sharers from high court or executing court to bid for the properties--any of co-sharers of suit properties are at liberty to bid for suit properties in terms of section 6(2) of partition act--petition was dismissed. [p. ] a, b, c, d, e & f pld 1974 aj&k 67; 2007 scmr 289; 2004 scmr 130.

Citation Name:   PLJ  2016  Islamabad High Court   401
Appelant Side:    MUHAMMAD ZULFIQAR and another
V    e    r    s    u    s
Opponent Side:   ADDITIONAL DISTRICT JUDGE (WEST), ISLAMABAD and others
Judge Name:       MIANGUL HASSAN AURANGZEB
Other Law Journal References:    

partition act, 1893 (iv of 1893)-- ----ss. 6(1)(2) & 7--civil procedure code, (v of 1908), o.xxix, r. 72(1)--constitution of pakistan, 1973, art. 199--constitutional petition--executing court--joint properties--auction of suit properties--report of local commission--market value of suit properties--properties could not be partitioned or sub-divided--appointment of court auctioneer--question of--whether high court can permit co-owner to bid for suit properties in auction process--validity--order xxi, rule 72, c.p.c. would also be applicable to sale of a property through an auction in pursuance of a preliminary decree passed in a suit for partition of a joint property under provisions of partition act, 1893--when a preliminary decree for partition of property is passed under provisions of partition act, all co-owners of property to be partitioned, be plaintiffs or defendants, attain status of decree holders--it is essential for a decree holder to obtain permission of court to bid for property to be auctioned--no permission is required by co-sharers from high court or executing court to bid for the properties--any of co-sharers of suit properties are at liberty to bid for suit properties in terms of section 6(2) of partition act--petition was dismissed. [p. ] a, b, c, d, e & f pld 1974 aj&k 67; 2007 scmr 289; 2004 scmr 130.

Citation Name:   PLJ  2004  Lahore High Court   32
Appelant Side:    MUHAMMAD IBRAHIM and another
V    e    r    s    u    s
Opponent Side:   MUHAMMAD ISMAIL and 4 others
Judge Name:       MUHAMMAD SAI-R ALI
Other Law Journal References:    

-s. 8-order of sale of property in partition suit, would be deemed to be a decree where against regular first appeal would be competent rather than f.a.o.--office was directed to convert petitioner's f.a.o. into regular first appeal upon completion of necessary formalities and payment of requisite court fee and the same be placed before division bench.



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