' MIAN HAMID FAROOQ, J.---Present first appeal, filed by Farooq Umer etc., the appellant/defendants Nos.1, 2 and 4 proceeds against orders, dated 7-10-2003, 20-10-2003 and 1- 12-2003, which are decree under section 8 of the Partition Act, 1893, whereby the learned trial Court purportedly ordered for the sale of the disputed properties through public auction and issued schedule of auction.
2. Facts relevant for the decision of the present appeal are that,except Mst. Safia Umer, who is widow, the rest of the parties to this appeal/suit are the progeny of Haji Muhammad Umer, who died on 8-6-1981, leaving behind certain properties. It appears that there was some dispute and disagreement between the parties regarding the distribution of the properties left by the deceased and as a result whereof Mst. Safia Umer etc., respondents No,1 to 4/plaintiffs, filed a suit for administration rendition of accounts, possession through partition and permanent injunction, against the appellants, and respondent No,5/ defendant No,3, in respect of the following properties:-- Property No,1 ' Residential Bungalow No,47-B/2, Gulberg-III, Lahore.
Property No,2.
' Commercial Property bearing No,33-C Commercial Zone Liberty Market, Lahore.
Property No,3.
' Three plots measuring 18-Marlas each, bearing Nos. 3-A, 4-A and 5-A, Rana Town Scheme Tehsil Ferozewala District Sheikhupura.
Property No,4.
' Plot bearing No,88-B/2, Gulberg-III Lahore.
' It was inter alia, pleaded by the plaintiffs that appellant No,1 was appointed their attorney to manage the aforesaid properties and to receive the rent from the tenants but the appellants have neither rendered the accounts nor paid their shares of rent, which necessitated the filing of the suit with the principal prayer that the appellants may be directed to render accounts in respect of the movable and immovable properties and these properties may be partitioned. The appellants/defendant Nos.1, 2 and 4 and the respondent No,5/defendant No,3 resisted the suit by way of filing separate written statements, thereby taking the preliminary objections regarding the maintainability and the valuation of the suit and pleading the plea of estoppel on the part of the plaintiffs, however, on merits it was asserted that Haji Muhammad Umer left only Properties Nos. 1, 2 and 3, that the appellants spent the amount of Rs,3,00,000 from their own pocket on the improvement of the plots etc. And that Property No,4 had nothing to do with Haji Muhammad Umer, as the same was purchased by the appellants Nos. 1 and 2 in their own names with the funds provided by their grandmother and mother. Plaintiffs' two applications, one under Order XXXIX rules 1 and 2 C.P.C. And another under Order XV rule 1 C.P.C., though resisted by the defendants, yet the same were allowed by the learned trial Court, vide order, dated 14-10-2000, thereby prohibiting the alienation or encumbrances of the joint properties and Receiver was appointed for the purposes of collection of rent from the tenants. The appellants and the respondent No,5 challenged order, dated 14-10-2000 through filing the appeal (FAO No,290 of 2000) before this Court and the learned Single Judge of this Court, with the consent of the parties, passed a preliminary decree in A respect of Properties Nos. 1, 2 and 3 the plaintiffs relinquished their claim to the rendition of account and Local Commission (Mr. Saif-ul-Malook) was appointed for the purposes of suggesting the modes of partition and also ascertaining the market value of the said properties, vide judgment, dated 13- 8-2002. Subsequently, upon filing a miscellaneous application (C.M. No, 1057 of 2002), this Court, on 30-8-2002, with the consent of both the parties, recalled the earlier order for the appointment of Mr. Saif-ul-Malook as Local Commission and in his place appointed Mr. Taloot, District Officer City Government with the same reference, as incorporated in judgment, dated 13-8-2002. Pursuant to the said judgment/order, Mr. Taloot submitted his report, against which the appellants submitted the objections and ultimately the learned trial Court set aside the said report, ordered for the disposal of the disputed properties through public auction and directed the parties to submit their proposed plans for the disposal of the disputed properties, vide order, dated 9-9-2003. In obedience thereto, the parties submitted their plans for the partition of the properties and as those were not consented to by the parties, therefore, the learned trial Court, after finding that "there is no choice of agreed partition of the suit properties, the order, dated 9-9-2003 is to be acted upon" appointed three Court auctioneers with the directions to sell the properties through public auction and issued schedule of auction, vide order, dated 7-10-2003. The respondents filed an application under Order XXI rule 66 C.P.C., with the prayer that the proclamation of sale, as per the contents of their application, may be re-issued. The learned trial Court, while allowing the said application, fixed the prices of properties, re-issued the schedule of auction and also directed that the proclamation may also be effected in three daily newspapers, vide order, dated 20-10-2003.
Subsequently, the learned trial Court issues revised schedule of auction, vide order, dated 1-12- 2003. The aforenoted orders, dated 7-10-2003, 20-10-2003 and 1-12-2003, as noted above, have been impugned in the present appeal.
3. Learned counsel for the appellants has submitted that the disputed properties are to be dealt with as per the terms agreed between the parties and incorporated in the judgment, passed by this Court on 13-8-2002, but the learned trial Court, while passing the order for the auction of the properties, deviated from the terms of the preliminary decree. He has further submitted that there are no findings on record that the properties are, in fact, impartable inasmuch as the report of the learned Local Commission, which was set aside, is silent qua the said fact. He has added that if the learned trial Court was not satisfied from the report of the learned Local Commission, then instead of passing order for auctioning the properties through public auction, the learned trial Court should have resorted to the terms of the preliminary decree and appointed new commission. Conversely, the learned counsel for respondents Nos. 1 and 4, while supporting the impugned orders, has submitted that in fact the learned trial Court, vide its order, dated 9-9-2003, directed for the auction of the properties, however, the appellants by not challenging that order at any stage, has acquiesced overthe matter and are precluded even from challenging the subsequent orders, as those were passed on the basis of order, dated 9-9-2003. He has further submitted that the appellant are estopped from challenging the impugned orders, after having obtained the permission from the learned trial Court to participate in the auction/bid. He, while referring to the objections, filed by the appellants before the learned trial Court, has submitted that the appellants have admitted in their objections regarding the impartable character of the properties in dispute.
Learned counsel for respondent No,5 has however, supported the case of the appellants.
4. In view of the arguments of the learned counsel for the parties, we have examined the available record and find that the learned trial Court while deciding the objections filed by the appellants on the report of the Local Commission and while giving the conclusive findings that the only solution is to auction the disputed properties, firstly invited the requisite plans of the properties to solve the problem, vide order, dated 9-9-2003. It would be appropriate to reproduce the operative portion of order, dated 9-9-2003, which reads as follows:-- "Under the circumstances discussed above, first of all as observed above, the report of the local commissioner is impracticable for the reasons discussed above the extent of proposed partition of the properties owner by the parties and secondly the conduct of the parties as they have been appearing before the Court does not allow me to accept this report because it would result in endless litigation between the parties. Hence the report of the local commissioner to the extent of proposed partition of the suit properties is hereby set aside and accordingly the petition for summoning of Mr. (sic) with his report is hereby dismissed as now there is no need to summon the said local commissioner. Whereas the petition for staying the proceedings of this suit/sine die adjourning of the same has become infructuous after the submission of the report of local commissioner.
' The local commissioner has also ascertained the value of the suit properties. So the only solution under the circumstances to dispose of the disputed properties and the litigations of the parties lies in auction of the disputed properties. However, as such the learned local commissioner has failed to invite the requisite plans of the parties to solve the problem and especially when an amicable order in the shape of preliminary decree has been passed by the Hon'ble Lahore High Court, Lahore with the consent of the learned counsel for the parties, I think it proper to give an opportunity to the parties to submit their proposed planfor disposal of the disputed properties by the next date in the spirit of the order passed by the Hon'ble Lahore High Court, Lahore, which may lead to a common solution, otherwise the auction of the property is the last resort." (Under lining is ours)
' Upon the perusal of the aforenoted order, it is evident that after discussing every aspect of the case and setting aside the report of the Local Commission, the learned trial Court came to the definite conclusion that disputed properties are to be sold in auction. It flows from the above that the learned trial Court after taking into consideration the total scenario of the case and adjudicating upon the objections, filed by the appellant to the report of the Local Commission, unequivocally held that the properties are to be auctioned. However, before giving schedule of auction, the learned trial Court in his own wisdom invited the parties to submit their proposed plans for disposal of the disputed properties. Even the latter part of the said order shows that the learned trial Court called for the proposed plans only for the disposal of the disputed properties and not for the partition of the properties. For all intents and purposes, as is evident from the portion of the order, dated 9-9-2003, as reproduced above, through the passing of the said order, the learned trial Court, after finding no other alternative, ordered for the sale and disposal of the disputed properties. We are of the view that order, dated 9-9-2003 was the only order, through which the learned trial Court ordered for the auction of the properties and none of the succeeding orders, challenged in this appeal, manifest that any fresh order for the auction of the properties was passed. Even order, dated 7-10-2003 does not show that any order for the auction of the properties was passed, but on the other hand, in view of order, dated 9-9-2003, the learned trial Court on 7- 10-2003 only pointed the Court auctioneers for the auction of the properties. The examination of order, dated 7-10-2003 manifests that the learned trial Court, while appointing the Court auctioneers, have also referred to order, dated 9-9-2003, which portion of order is reproduced below:--- ' So as there is no, choice of agreed partition of the suitproperties, the order, dated 9-9-2003 is to be acted upon i.e, the auction of the suit properties. So, now the following Court auctioneers are hereby appointed for auction of the suit properties...?
' The above portion of the order further fortify our view that the properties were ordered to be auctioned only by virtue of order, dated 9-9-2003 and no fresh order for the auctioning of the property was passed thereafter.
5. Admittedly, the appellants did not challenge the order, dated 9-9-2003 at the relevant time and within the stipulated period inasmuch as the said order has not even been challenged in the present appeal. The only conclusion which flows therefrom is that the appellants felt satisfied with that order, acquiesced over the matter and did not deem fit to challenge the said order, in spite of the fact that there were clear directions of the learned trial Court for the disposal of the disputed properties through public auction. Had the appellants been aggrieved of the said order, they must have assailed the said order at the appropriate stage and by not agitating against the order, they deemed to have admitted the correctness and veracity of the order. In view whereof, the principles of estoppel and waiver will come into operation and the appellants are estopped and precluded from raising the plea at this stage that the properties could not be auctioned by the learned trial Court. C We feel that order, dated 9-9-2003 has attained finality, as none of the parties have challenged the said order before the higher forums and thus, it can neither be held nor legitimately argued that the properties cannot be auctioned through public auction.
6. As regards, the orders impugned in this appeal, we feel that those are only the follow up orders, whereby schedule of auction was issued and the basic and parent order, was order, dated 9-9- 2003, whereby the properties were ordered to be auctioned. Through the filing of appeal against orders, dated 7-10-2003, 20-10-2003 and 1-12-2003, the appellants can only challenge the schedule of auction and not the auctioning of the properties itself.
7. Now turning to the question about partability and impartability character of the disputed properties. Although there are no findings on record by the Local Commission as to whether the properties are partable or not partable, yet upon the examination of the objections, filed by the appellants, it appears that the appellants in their objections, in unequivocal terms, have admitted that the disputed properties Nos. 1 and 2 are impartable. It would be appropriate to refer to the relevant portion from the objections., In para.2 of their objections with regard to Property No,47-B/2 Gulberg-III, Lahore, the appellants have stated as under:- "The proposed partition of the Bungalow which is absolutely impartable, is very much likely to create every conceivable difficulty for both the plaintiffs and defendants and undoubtedly giving rise to multiplicity of litigation between the parties."
' With regard to the said property in para.3 of the objections, it has been stated as under:- ......... The commissioner however appears to have detrackedintentionally with the sole object of showing practically all favours and inclination to the plaintiffs even beyond the possible norms of in justice and crossing all the barriers of check and balance according to his own sweet will not only has made an effort in his report to prove partible the properties which are unmistakably impartible and can be no stretch of imagination, he declared partible..."
(underlining in ours)
' In para. 16 of the objections, with regard to Property No,33-C/Commercial Zone Liberty Market, Lahore, the stand of the appellants is reproduced below:- " The commission report sufficiently demonstrate a favour toMr. Tahir Umar, defendant No,3. A deep and even a superficial concentration on the commission's report would reveal that this property i.e, 33-C/Commercial Zone Gulberg-III, Lahore is totally impartible having one and common staircase and equipped with single electricity meter and water connection...."
' It flows from the reproduction of portions from the objections filed by the appellants that their consistent stance is that Properties Nos.47-B, Gulberg-III, and 33-C Commercial Zone Liberty Market Gulberg-III, Lahore are impartable. In view of their clear admission, now it does not lie in the mouth of the appellant to urge that the properties are partable and that they should not be sold in public auction, pursuant to the passing of the preliminary decree.
8. As regards the contention of the learned counsel that there are no findings about the status and character of the property as to whether they are partable or impartable, suffice it to say that in view of the clear admission of the appellant about the impartability character of the disputed properties, as noted above, we feel that no findings for any independent person are called for when according to the assertion of both the (sic).
9. Now coming to the preliminary decree. Although while passing the preliminary decree, the Local Commission was directed to inspect the properties, record the evidence and propose the modes of partition and also ascertain market value of the properties, yet it was also directed that if the properties are found to be impartable, the learned Local Commission shall state reasons. Pursuant to the said order, the Local Commission was appointed, who submitted his report, however, the same was set aside. At that point of time, the stance of the appellants regarding the nature/status of the properties, which is now on record, was not before the Court that was the reason it was ordered that if it is found bythe Local Commission that the properties are impartable then the Local Commission shall state reasons for it. Admittedly, the stand of the appellants, viz the properties are impartable, came on record, through the objections, subsequently. As noted above, in view of the clear admission of the appellants regarding the impartable character of the properties the learned trial Court has rightly held in order, dated 9-9-2003 that there is no choice left except to auction the properties in public auction. In the above perspective, the contention of the learned counsel that there is no compliance of the terms of the preliminary decree has a little substance, thus, repelled.
10. In the above backdrop, we have examined the impugned orders, dated 7-10-2003, 20-10-2003 and 1-12-2003 and find that by virtue of those orders the learned trial Court only appointed the Court Auctioneers and issued the schedule for the auction of the properties. The learned counsel for the appellant could not point out any grave legal infirmity in the said orders, which as a matter of fact fix the prices of the properties and the dates for the auction of the properties. We have noted that the learned trial Court, while passing one of the said orders, has allowed the parties to take part in the open auction. We do not see any legal infirmity in those orders, thus, the same are maintained.
11. Upshot of the above discussion is that the present appeal is devoid of merits, thus, the same stands dismissed with no order as to costs.