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Petitioner: Mubarak Ahmad VS Respondent: Muhammad Hayat (Deceased) Through His Legal JUDGMENT
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title:Mubarak Ahmad vs Muhammad Hayat (Deceased) Through His Legal
JUDGMENT
Reported As: 2023 LHC 6202 Result: Revision Dismissed Judgment JUDGMENT MIRZA VIQAS RAUF, J. This petition as well as connected petition (Civil Revision No.216-D of 2017) are arising from the judgment and decree dated 23rd January, 2017 passed by the learned District Judge, Attock, whereby he proceeded to dismiss the appeal of the petitioners of both these petitions as well as respondent No.14 and affirm the judgment and decree dated 18th October, 2007 passed by the learned Civil Judge Class-I, Attock. This judgment shall thus govern both these petitions. 2. Facts forming background of these petitions are that predecessor-in-interest of respondents No.1A to 1D namely Muhammad Hayat (respondent No.1) and respondents No.2 & 3 (hereinafter referred to as "respondents") instituted a suit for separate possession seeking partition of properties duly mentioned in the headnote of the plaint (hereinafter referred to as "suit properties") with the averments that "suit properties" are joint interse parties. It is asserted that the original owner of "suit properties" numbered as was Muhammad Aslam son of Khudadad and he was also owner of 1/4th share in the property forming part of "suit properties" and rest 3/4 share in the said property was owned by respondent No.9. As per averments of the plaint Muhammad Aslam died in the year 1976, who survived respondents No.4 to 6 as daughters alongwith respondents No.7, 8 & 14 being widows and respondents No.2, 3 & 13 as his sons. It is mentioned that share of each son is 7/48 whereas share of each daughter is 7/96 and widow is entitled to 1/16 share each. It is also asserted that since the "respondents" purchased the land from respondents No.4 to 7 from the suit "Hevali" mentioned at serial No.) (and thus they became owners of 70/96 share whereas respondents No.4 to 7 were left with no right of ownership with the "suit properties".
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3. Suit was resisted by the petitioner, who purchased a piece of property forming part of "suit properties" from respondent No.13 during proceedings and thus while submitting his written statement he pleaded that he is bonafide purchaser and his rights are protected under Section 41 of the Transfer of Property Act, 1882. Suit was also resisted by respondents No.13 & 14, who submitted their written statement raising multiple objections. It would not be out of place to mention here that respondent No.13 is the petitioner in the connected petition. Out of divergent pleadings of the parties multiple issues were framed by the trial court, who after recording of evidence from both the sides proceeded to pass the preliminary decree vide judgment dated 18th October, 2007. Feeling dissatisfied the petitioners in both these petitions as well as respondent No.14 preferred appeal but same was dismissed vide judgment and decree dated 23rd January, 2017, which is now impugned in these petitions under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "C.P.C."). 4. Sh. Ahsan-ud-Din, Advocate representing the petitioner namely Mubarak Ahmad submitted that his client purchased 03 Marla property in the constructed shape from respondents No.13 & 14 through registered sale deed and his rights are protected under Section 41 of the Transfer of Property Act, 1882. It is contended that validity of the sale deed in favour of the petitioner has never been questioned by the "respondents" in their suit. Learned counsel while making reference to the statement of respondent No.2, who appeared as PW1 submitted that the "respondents" though did not include all the joint properties in their suit but suit was decreed preliminary in negation of principle of partial partition. Learned counsel emphasized that concurrent findings are the outcome of gross misreading and non-reading of evidence. In support of his contentions, learned counsel placed reliance on GHULAM RASOOL and another versus MUHAMMAD KHALID and 2 others (2006 YLR 2289). 5. Sh. Kamran Shahzad Siddiqui, Advocate representing respondents No.13 & 14 and also petitioner in connected petition submitted that sufficient evidence was though produced by the petitioner that "suit properties" are in respective possession of the parties under a family settlement but no heed was paid to this material aspect at all. Learned counsel contended that concurrent findings are tainted with material irregularities and as such not tenable. 6. Conversely, Mr. Mujeeb-ur-Rehman Kiani, Advocate representing respondents No.1A to 1D submitted that parties are admittedly co-owners. He added that no tangible material was produced by the petitioner that "suit properties" were partitioned under a family settlement and as such suit was rightly decreed. It is contended by learned counsel that mere private partition is even otherwise not an hurdle in a suit for partition claiming separate possession. Learned counsel submitted that the petitioner namely Mubarak Ali purchased the property during the pendency of the suit and as such he would only step into the shoes of his vendor and will became co-owner. Learned counsel argued that "respondents" included all the joint properties interse parties in the suit and it is not hit by the principle of partial partition. Placed reliance on MUHAMMAD YOUSAF versus ADDITIONAL DISTRICT JUDGE, FEROZEWALA and others (PLD 2023 Lahore 503) and SAKHI MUHAMMAD and others versus HAJI AHMED and others (2023 CLC 380). 7. On the other hand, M/s Asim Sohail and Sana Javed, Advocates representing respondents No.2 to 12 adopted the arguments of learned counsel representing respondents No.1-A to 1-D. 8. Heard. Record perused. 9. This case has a checkered history at its back. There are four properties in toto forming subject matter of the suit. It appears from the record that initially suit was dismissed by the learned Civil Judge, which judgment was assailed in appeal before the learned Additional District Judge, Attock but appeal was dismissed whereafter the "respondents" challenged the concurrent findings before this Court through Regular Second Appeal No.16 of 1984. The appeal was ultimately accepted by way of judgment dated 08th March, 2001 and matter was remanded to the trial court for deciding it
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afresh after recording of further evidence of the parties. In post-remand proceedings both the sides produced their further evidence and finally suit was decreed preliminary vide judgment dated 29th April, 2002. Feeling dissatisfied, the petitioner preferred an appeal before the learned Additional District Judge, who proceeded to dismiss the same and thus findings of the courts below were then called in question in Civil Revision No.534-D of 2002, which was allowed by way of judgment dated 27th February, 2004 and case was remanded to the trial court to decide the same afresh in the light of issues as originally framed. In the third round, suit was again decreed preliminary vide judgment dated 18th October, 2007. The petitioners challenged the said judgment and decree through an appeal before the learned Additional District Judge, Attock, who dismissed the same. This followed Civil Revision No.383-D of 2008 which was allowed by way of judgment dated 20th October, 2016 and case was again remitted to the appellate court with the direction to decide the appeal afresh as in the earlier judgment the learned Additional District Judge had posted the issues of some other case whereas findings were given with regard to the case in hand. After remand the appeal was heard by the learned District Judge, Attock, who proceeded to dismiss the same through impugned judgment and decree dated 23rd January, 2017. 10. It is apparent from the record that suit is mainly resisted by the petitioner firstly on the ground that the "suit properties" were partitioned under a family settlement by the original owners in his lifetime and as such these have lost the status of joint properties and secondly the "respondents" did not include all the properties of Muhammad Aslam, predecessor-in-interest of respondents No.2 to 8, 13 & 14 in the suit which renders the same not proceedable. Though from the pleadings of the parties multiple issues were framed but in order to circumscribe the matter in controversy in more precise and specific shape, to my mind following points for determination emerge before this Court :- (i). Whether the "suit properties" are joint interse parties or same have been partitioned under a family settlement? (ii). Had there been any family settlement what would be its effect? (iii). Whether suit is hit by principle of partial partition? and (iv). What would be the status of sale transaction effected in favour of petitioner namely Mubarak Ahmad during the pendency of the suit? 11. Adverting to the moot points, it is observed that point at serial Nos.(i) & (ii) are not only interlinked but dependent upon each other. It is evident from the record that the "respondents" at the very outset while instituting suit asserted that the "suit properties" are joint in nature and not yet partitioned by meets and bounds. Contrary to this suit was resisted by the petitioners/defendants on the ground that there is a family partition interse parties by virtue of which all the co-owners are in possession as per their legal shares. To this effect claim of the petitioners rests upon the stance taken by respondents No.13 & 14 in their written statement. The relevant extract is reproduced below :-
12. It is an admitted fact that the "suit properties" were originally owned by Muhammad Aslam son of Khudadad, who contracted three marriages and respondents No.2 to 6 & 13 are his off springs whereas respondent No.14 Mst. Karam Jan is one of his widows. In order to prove that the "suit properties" are joint interse parties, the "respondents" produced Khizar Hayat as PW1, who reiterated the contents of the plaint. Muhammad Iqbal was produced as PW2. He too deposed on the same lines. From the perusal of the revenue record produced by the "respondents" it clearly evinces that the status of the "suit properties" is recorded as joint. Moreover Mst. Karam Jan i.e. respondent No.14 when appeared in the witness box she stated as under :-
It is thus crystal clear that no partition has ever taken place through any written deed.
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Section 147 of the Act ibid provides a mechanism for affirmation of partitions privately effected which is reproduced below for ready reference and convenience :- "147. Affirmation of partition 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." The above provision clearly manifests that if a party pleads some private partition effected under some family settlement with regard to partition of joint land, he has to apply to the revenue officer obtaining an order for affirmation of such partition. In other words in absence of any order of affirmation in terms of Section 147 of the "Act, 1967" party relying upon private partition would be precluded to claim any right thereunder. 14. It would not be out of context to mention here that Chapter 18 of the Land Record Manual provides a procedure in partition cases and clause 18.1 especially deals with private partitions. Guidance in this respect can be sought from MUHAMMAD MUKHTAR and others versus MUHAMMAD SHARIF and others (2007 SCMR 1867). Reference in this regard can also be made to Mst. WALAYAT BEGUM and 3 others versus MUHAMMAD AFSAR and 3 others (2014 CLC 1103). The relevant extract from the same is reproduced below :- "6...... It is an admitted fact that Bostan (the predecessor of the present appellants) and the respondent/defendant Muhammad Afsar along with others are co-sharers in the khewat of the disputed land. The respondent/defendant filed an application for partition before the Revenue Assistant and ex parte proceedings were ordered against the respondent in the partition proceedings. Partition deed Exh.D.N. was issued and ultimately a warrant of possession was issued in the name of respondent/ defendant Muhammad Afsar to the extent of the land measuring 2 Kanals and 1 Marla. The said Muhammad Afsar was declared owner in possession of the said land. It is a settled principle of law that private partition or family settlement cannot be declared as final partition. Any of the co-sharers can approach the proper forum for partition of the jointly owned land in accordance with the provisions of law. The record reveals that the predecessor of the present appellants Bostan refused service of the notice in the partition proceedings and thereafter ex parte proceedings were ordered against him. It was not proved that the service was conducted fictitiously. It was not stated by the said Bostan that what loss was occurred due to partition proceedings? If at all, any fluctuation/ decrease or increase in the quantity of the land is found, the only proper forum for redressal regarding the same is the revenue court designated for the purpose. Moreover, it has not been brought on record and even has not been proved that how much deficiency in the quantity of the land has found in the shares of the said Bostan? It is an admitted principle of law as well that the official partition is always preferred to the private partition. No co-sharer can be deprived of his right only due to this fact that the other co-sharer is in possession of any land. 7. It was not proved by the present appellants that when they got knowledge regarding the partition proceedings. The record also reveals that the said Bostan filed a suit for permanent injunction on 22-8-2000 after issuance of warrant of possession in favour of the respondent/ defendant Muhammad Afsar. The said suit was dismissed for non-prosecution on 9-3-2002. This fact indicates that the said Bostan had knowledge of the partition process and he remained absent from the partition proceedings intentionally and he filed the suit for permanent injunction when the warrant of possession was issued in the name of the respondent Muhammad Afsar. So, the suit under appeal was filed beyond the period of limitation. The present appellants have relied
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on private partition only. The private partition does not change the nature of the joint property and the same will remain joint until and unless it is partitioned by the revenue authorities according to the provisions of law. It is a settled principle of law as well that no suit for possession can be filed by a co-sharer having the version that he is already in possession of a part of the disputed land and such suit cannot be treated under section 9 of the Specific Relief Act." 15. In the case of SAKHI MUHAMMAD and others versus HAJI AHMED and others (2023 CLC 380), while dealing with similar question this Court held as under :- "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 SCMR 1867). Reference in this regard can also be made to Mst. Walayat Begum and 3 others v. Muhammad Afsar and 3 others (2014 CLC 1103)." From the above analysis it can safely be held that no family settlement has ever taken place and the "suit properties" are still joint interse parties. 16. Next comes the question relating to partial partition, it appears from the record that to this effect respondents No.13 & 14, out of them former is also petitioner in the connected petition, while submitting their written statement objected the maintainability of the suit on the ground that "respondents" did not include the whole properties owned by Muhammad Aslam in the suit. To this effect learned counsel for the petitioner has heavily relied upon the statement of Khizar Hayat Khan (PW1). Attending this question it is noted that from the bare perusal of plaint, it appears that the "respondents sought partition of three "Hevalies" one of which is situated in the revenue limits of Baryar whereas other two falls within the limits of revenue estate of Nawa, fourth and last property is in the shape of drawing room which too falls within the territorial limits of revenue estate of Nawa. The objection of partial partition was taken by respondents No.13 & 14 without mentioning as to which property or properties have not been included in the suit. For the purpose of reference, relevant extract from the written statement is reproduced below :-
The above was clearly a vague assertion and even during evidence no specific property was pointed out either by the petitioner or respondents No.13 & 14. So far statement of Khizar Hayat (PW1) is concerned, on the basis of which learned counsel has made emphasis that the suit is hit by partial partition, it would be relevant to have a glimpse of the said part of statement, which reads as under :-
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From the above portion of statement, it is crystal clear that the "Hevali" Dhok Fateh Wali is located in the revenue estate of Nawa. The petitioner has failed to bring on record any material to substantiate that "Heavli" Dhok Fateh Wali is an independent and separate property thus one cannot say that the suit is not proceedable being hit by principle of partial partition. So far judgment in the case of Ghulam Rasool's supra is concerned, it is observed that same is not applicable to the case in hand, as it was founded on entirely different facts and circumstances. 17. Coming to the last point of controversy relating to sale transaction effected in favour of the petitioner, it is observed that undoubtedly said transaction took place during the pendency of the suit. The transaction thus would be governed in terms of Section 52 of the Transfer of Property Act, 1882 on the touchstone of principle of lis pendens. There is no cavil to the proposition that a co- sharer has every right to transfer or sell the joint property to a third person but such transfer or alienation is always dependent upon the actual share of such co-owner and if he transfers or alienates the property within his share, the vendee will step into his shoes accordingly. Law to this effect is well settled that no co-sharer can sell joint property with specific boundaries if any such transaction is made that would always be the subject to the partition. Guidance in this respect can be sought from Mst. TABASSUM SHAHEEN versus Mst. UZMA RAHAT and others (2012 SCMR 983) wherein the Supreme Court of Pakistan held as under :- "5. The afore-referred provision enshrines the age old and well established principle of equity that ut lite pendente nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendente lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section. The doctrine by now is recognized both in law and equity and underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. The effect of such alienation would be that the plaintiff would be defeated by defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity but also at good conscience and justice. In Lalji Singh v. Rameshuwar Misra ((1983) 9 All LR 269 (271) (All)), the essential ingredients of section 52 ibid or the conditions precedent to attract this principle were construed as follow:-- (i) the pendency of any suit or proceeding in a court law: (ii) the court must have jurisdiction over the person or property; (iii) the property must have specifically described and should be affected by the termination of the suit or proceedings; (iv) the right to the said property be directly and specifically be in question in any suit or proceeding; (v) an alienation of such immovable property without the permission or order of the court; and (vi) the alienation should be during the pendency of any such suit or proceeding and a suit or proceeding in question is not collusive. 6. From our jurisdiction in recent past, the ambit and mport of lis pendense came up for consideration before a Full Bench of this Court in Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905) and at page 912, one of us (Mian Saqib Nisar, J) speaking for the Court observed as follows:-- "The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value; without notice of the
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pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest.............................................. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated. In support of the above, reliance is placed upon Messrs Aman Enterprises v. Messrs Rahim Industries Ltd. and another (PLD 1993 SC 292), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003). Besides, in West Virginia Pulp and Paper Co. v. Cooper, 106 S.E. 55, 60, 87 W.Va. 781, it has been held the doctrine of "lis pendens" is that one who purchases from a party pending suit a part or the whole of the subject-matter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title. In Tilton v. Cofield, 93 U. S. 168, 23 L.Ed, 858, the view set out is "the doctrine of lis pendens is that real property, when it has been put in litigation by a suit in equity, in which it is specifically described, will, if the suit is prosecuted with vigilance, be bound by the final decree, notwithstanding any intermediate alienation; and one who intermeddles with property in litigation does so at his peril and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party from the…
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