' MUHAMMAD SAIR ALI, J.---Through the present civil revision, the petitioner Mian Muhammad Saeed (a co-defendant in suit for declaration) has called in question order dated 20-5-2002 of the learned Civil Judge Lahore allowing application of respondents Nos.1 to 5 (the plaintiffs) under rule 17 of Order VI, C.P.C. To permit the relief of separate possession in partition in the prayer of the plaint.
2. The learned counsel for the petitioner placing reliance upon the case of "Syed Mohsin Raza Bukhari and 4 others v. Syeda Azra Zenab Bukhari" 1993 CLC 31, contended that in the suit for declaration and consequential relief, the prayer for separate possession and partition could not have been allowed through amendment because to seek partition in a partition suit, an independent cause of action, unity of title and unity of possession were the fundamental elements and that none of these elements existed in the present case.
' Contrarily the learned counsel for the contending respondents Nos.1 to 5 (the plaintiffs) supported the impugned order and stated that on the basis of the impugned order for amendment, the plaint was amended and the parties had already concluded their evidence since long. Further that the suit property was in possession of the petitioner along with a few others wherefor it was in the interest of the petitioner to delay the conclusion of the suit. And that the amendment allowed by the learned trial Judge was in accordance with the principles of law.
3. Syed Ikhtisar Ahmad and Ch. Muhammad Ashraf, Advocates for the conceding respondents being co-defendants in the suit, supported the case of the petitioner as raised in the present civil revision.
4. Heard.
5. The learned counsel for the parties jointly stated that the present civil revision continued to be at pre-admission stage since its first date of hearing on 18-10-2002. And that it was on this notice that the respondents had appeared through their learned counsel. The order sheet also shows that on 18-10-2002, pre-admission notice was directed to be issued to the respondents and on 2-7-2003, proceedings before the learned trial Court were stayed through an interim order. As all the parties have been heard through their learned counsel, therefore, this case is being decided as an admitted/Tacca' case.
6. The short question involved in the present civil revision is as to whether the amendment to add prayer for separate possession in partition was properly allowed by the learned trial Judge through the impugned order dated 20-5-2002 or not.
7. Respondents Nos. 1 to 5 filed a suit for declaration to challenge the purported "deed of surrender of shares" allegedly registered as document No,13323, Bahi No,1, Volume No,197 on 30-11-1996 and "rectification deed" also registered on 13-12-1987. Respondents Nos. 1 to 5 (the plaintiffs) also sought declaration that they continued to be the joint owners/shareholders in possession along with the defendants of the properties left by their deceased predecessors-in-interest namely Lal Din and Mst. Hussain Bibi (father and mother and grand-father and grandmother of the litigating parties).
Perpetual injunction against the alienation of the suit properties was also sought in this suit.
8. On contesting written statement, issues were framed and the case was ordered to be fixed for evidence. In the meanwhile numerous amendments were prayed for and allowed by the learned trial Court. However, respondents Nos. 1 to 5/the plaintiffs sought another amendment in the plaint to incorporate the relief of separate possession on the basis of their 1/13th share in the estate of the deceased. This. Relief was essentially a prayer for the partition of the jointly owned assets.
Contesting reply was filed by the defendants.
9. The amendment was allowed by the learned trial Judge through the impugned order dated 20- 5-2002 for the reasons that the proposed amendment would neither change the nature nor the complexion of the suit nor would it set up a new case or the new facts in the plaint.
10. The main contention of the learned counsel for the petitioner is that amendment was wrongly allowed because a cause of action for a partition suit is distinct from the cause of action for a title suit and the suit for partition has to be .Based upon unity of title and possession. Furthermore the learned counsel for the conceding respondents stated that neither any issue was framed in the present case on the, partition nor was the evidence allowed by the Court.
11. I am of the considered opinion that there is no merit in the submissions of the learned counsel for the petitioner or that of the learned counsel for the conceding respondents. The undisputed facts are that the suit property was originally owned by deceased Lal Din and Mst.,Hussain Bibi. On their death the property devolved under the Muhammadan Law upon the plaintiffs and the defendants; parties to this civil revision or their respective predecessors-in-interest. As such, the rights to the inheritance of the estate and the shared ownership of the assets descended upon the parties because of the paramount title of their deceased porosities. Death extinguished the title of the deceased in their assets and simultaneously created the title of the parties therein. The flow of rights was from the same source though it streamed into multiple units on devolution as per the legal shares. Unity of title and possession in such a case therefore, cannot be questioned.
12. Upon devolution of the property through inheritance on the parties, the petitioner and his co- defendants claimed that through the surrender deed and the rectification deed, their real sister (the predecessor-in-interest of the respondent plaintiffs) surrendered her inherited share to them.
Denying these deeds, the plaintiffs i,e, respondents Nos. 1 to 5 filed their suit to:-:
(i) establish their title;
(ii) avoid the obstructive deeds; and
(iii) for declaration of their co-ownership and co-possession. They also sought consequential reliefs. All these reliefs arose from one cause of action. Such cause emanated the amended prayer for the separate possession as well.
13. This Court thus finds that the learned trial Judge exercised his jurisdiction properly to permit amendment in the plaint to incorporate the claim of the plaintiffs to separate possession to the extent of their 1/13th share in the suit property. The amendment so allowed neither changed the nature of the suit nor the complexion of the litigation between the parties. It essentially arose from the same unity of the title and the actionable cause.
14. the principles settled in the case of Syed Mohsin RazaBukhari and 4 others v. SyedaAzra. Zenab Bukhari 1993 CLC 31 were neither departed from nor disregarded by the learned trial Judge. The amendment as allowed was in consonance with the rules recorded in the concluding para. Of this judgment. It was held that "when in a partition suit paramount title is set, up it is desirable to require the plaintiff to amend the plaint so as to challenge the existence, validity or legality of the alienation on the basis of which exclusive title is pleaded and to convert the suit into a suit for declaration of the title or cancellation of the alienation and for partition."
' In the present case, the plaint in the suit for declaration and perpetual injunction was allowed to be amended to incorporate the relief of separate possession as well. It thus became the suit for declaration, perpetual injunction and partition as approved in the precedent judgment. This Court therefore does not find any infirmity in the impugned order. This civil revision is dismissed with the costs.
15. In view of long pendency of the litigation between the parties, the learned trial Court shall endeavor to expeditiously decide the suit.