1. ' FAISAL ARAB, J.---Late Haji Abdul Rasool was owner of residential property bearing plot No,34, Soldier Bazar Saddar, Hyderabad measuring 2991 square feet. The plot No,34 contained two sub- plot numbers i,e, 34/1 and 34/2.
2. ' In the year 1966 late Haji Abdul Rasool built a new house on that portion of the property which comprised of sub plot No,34/1 leaving sub-plot No,34/2 as an open space. He died in the year 1973 leaving behind one widow Mrs. Qudsia, son Irshad alias Abdul Rahim and two daughters Shabana and Gulnaz. The first three of the four heirs are party to the present proceedings and are applicants in this revision. The fourth heir Gulnaz was Haji Abdul Rasool's daughter from his first wife and has not been made a party.
3. ' It has come on record that after the death of Haji Abdul Rasool, Gulnaz first rented out the sub-plot No,34/2 with some semi-pacca room constructed thereon to one Muhammad Ibrahim Soomro. It has also come on record that in the month of February, 1983 Gulnaz got married. After her marriage Gulnaz sold sub-plot No,34/2 to her tenant Muhammad Ibrahim Soomro on 9-7-1983 through a registered sale deed by treating sub-plot 34/2 as her 22 paisa share inherited from her late father.
4. In the sale-deed it is stated as follows:--- "The vendor has delivered the possession of the above said property viz. House numbered as 34/2 described herein above fully, to the purchaser, who hitherto before had been a tenant therein and henceforth the owner of the same"
5. ' After the above sale of plot No,34/2 in 1983 the applicants filed pre-emption suit bearing No,402 of 1983 in the Court of IVth Senior Civil Judge, Hyderabad claiming right of pre-emption against Muhammad Ibrahim Soomro. While the pre-emption suit was pending, Muhammad Ibrahim Soomoro sold plot No,34/2 to one Mst. Khadeja on 20-7-1985 who was also made a party to the suit upon such transfer. On 3-9-1986 Mst. Khadeja sold sub-plot No,34/2 to one Ghulam Mujtaba. On 6- 12-1988 the pre-emption suit filed by the applicants was dismissed for non-prosecution. The order of dismissal of suit was not challenged any further by the applicants and it attained finality. After four years of dismissal of the pre-emption suit, Ghulam Mujtaba sold sub-plot No,34/2 to Ashiq Hussain on 11-11-1994, who is its present owner and respondent in the present revision.
6. ' In the year 1998 the present applicants initiated fresh proceedings by filing suit i,e, Suit No,20 of 1998 against Ashiq Hussain seeking partition of plot No,34 on the ground that it is joint property of the applicants and Gulnaz is only 22 paisa shareholder in the properties left by late father. Ashqi Hussain was sued as he was current owner and occupier of sub-plot No,34/2. Gulnaz was not made a party to the partition suit.
7. ' The suit for partition was however dismissed by the learned Senior Civil Judge. The main reason which prevailed with the learned Senior Civil Judge was that specific area comprising No,34/2 was sold by Gulnaz to Muhammad Ibrahim Soomro and thereafter the plot No,34/2 changed several hands until it was purchased by Ashiq Hussain i,e, the respondent and that plot No,34/2 was even recognized in the records of Hyderabad Cantonment Board as a separate portion and therefore there already existed two separate plots bearing plot Nos. 34/1 and 34/2. Learned Senior Civil Judge also relied upon the death certificate of Haji Abdul Rasool filed as Exh.94/C wherein his death was shown on plot No,34/1 meaning thereby that tWo separate plots already existed.
8. ' After dismissal of their partition suit, the present applicants preferred appeal before Additional District Judge, Hyderabad which too met the same fate, hence the present revision application.
9. ' It is contended by the learned counsel for the applicants that no formal partition of the property was made and all that was sold by Gulnaz was her undivided 22 paisa share in the joint property and, therefore, the applicants were entitled for a decree of partition which was wrongly refused by both the courts below. He referred to the recital in the sale-deed dated 9-7-1983 wherein it is stated that Gulnaz is owner of 22 paisa share in the joint property. The applicants counsel also contended that out of 2991 square feet of plot No,34 the area sold by Gulnaz is 931 square feet whereas her 22 paisa share comes to only 660 square feet.
10. ' On the other had, learned counsel for the respondent argued that record shows that there existed private partition whereby plot No,34/1 was retained by the applicants and plot No,34/2 was exclusively given to Gulnaz towards her 22% share. He further argued that when Gulnaz sold plot No,34/2 to Muhammad Ibrahim Soomro, the only claim that was made by the applicants was their right of pre-emption to such sale which was exercised by filing pre-emption suit i,e, Suit No,402 of 1983. The plea that sub-plot No,34/2 was exclusively handed over to the purchaser by virtue of sale-deed in absence of any partition between the co-owners was not taken in the suit. Learned counsel for the respondent further contended that though the distribution of sub-plot No,34/2 appeared to be disproportionate to the 22 paisa share of Gulnaz but the reason being that sub- plot No,34/1 comprised of build up building whereas sub-plot No,34/2 was an open space with only one katcha-pacca room.
11. ' I shall now proceed to examine the existence of any private arrangement or partition whereby sub-plot No,34/2 fell exclusively to the share of Gulnaz.
12. It is not unusual in our society that properties held in common at times are privately partitioned between the co-sharers without taking recourse to any legal forum, be it revenue or civil Court. The private arrangement or partition so arrived at between the co-sharers is honoured by them and acted upon for years together. Individual holding of a particular co-sharer is espected and recognized by the other co-sharers as his exclusive share in the joint properties. Such private arrangement or partition if acted upon by the co-owners has to be recognized as lawful partition.
13. In such eventuality the co-sharers who have recognized the private arrangement or partition and have also acted thereon for years together cannot then turn around and question the same by seeking fresh partition before any revenue or other appropriate judicial forum on the ground that no formal partition from a Court of law has been obtained. The private arrangement and partition deserves the same sanctity which a lawful contract deserves and should not be interfered with in any legal proceedings unless the private arrangement or partition is otherwise not legally permissible. Where a co-sharer of such private arrangement or partition of joint properties had disposed of his individual share to a third person, then such disposition is also to be given legal validity. Certainly any one or all of the other co-sharer may choose to exercise right of preemption if available in law but it does not mean that the co-sharers can question the right of a co-sharer to deal with his specifically assigned share in any manner he likes. Any disposition of a share in a joint property, which was assigned to a co-sharer under a private arrangement or partition cannot be questioned for want of formal decree of partition of a-competent court of law.
14. ' Under a private arrangement or partition one may not rule out the possibility that it is so divided among the co-sharers which may not reflect one's true percentage of share which he owns in the joint properties. An apparent disproportionate distribution may have taken place keeping in view various other factors prevalent at the time of distribution. A co-sharer may have been given a smaller or bigger share in .a particular property to be owned and enjoyed by him towards his share on account of its location or monetary value, built up area or quality of land in comparison to other joint properties. Once distribution is carried out and acted upon by the co-sharers then any subsequent variation in their value would not warrant de novo distribution of shares. A particular business given to one co-sharer as his share may grow by geometrical proportions or value of a particular immovable property may enhance manifold than the value of properties belonging to other co-sharers. In such like events, a co-sharer may be tempted to retract from the private arrangement or partition arrived at earlier and seek de novo partitioning before a Court of law.
15. Such redistribution of joint properties cannot be allowed on the ground that earlier private distribution was not carried out by taking recourse to a Court of law or is disproportionate to the actual share of a co-sharer.
16. ' It may be mentioned that before a private arrangement or private partition is legally recognized it is to be seen whether there is sufficient evidence on record to give legal validity to such private arrangement or partition. A written private arrangement or partition poses no difficulty and is to be given effect straight away. However, where there is nothing in writing about private arrangement or partition but has been carried out and acted upon for years together by all the co-sharers and the individual holder of a particular share in the joint property exclusively enjoyed the property falling to his share to the exclusion of all other co-sharers with the right to dispose it of, then such arrangement and partition, if established by conduct of the parties, has also to be given legal validity.
17. ' In the present case Gulnaz admittedly sold sub-plot No,34/2 to Muhammad Ibrahim Soomro in 1983, as is evident from the registered sale-deed dated 11-7-1983 wherein in its third convent it is stated that Gulnaz has delivered possession of plot No,34/2 to Muhammad Ibrahim Soomro. This sale transaction was challenged by the applicants in suit No,402 of 1983 but only to the extent of claiming right of pre-emption. The fact that under the sale-deed the exclusive possession of the entire sub-plot No,34/2 was given by Gulnaz to. Muhammad Ibrahim Soomro was not questioned in the pre-emption suit by the applicants. It is also noticeable that in the title of the said suit, the address of Muhammad Ibrahim Soomro is also shown as plot No,34/2.
18. ' It was in this pre-emption suit i,e, Suit No,402 of 1983 that it was necessary for the applicants to question the entitlement of Gulnaz to sell plot No,34/2 if there was no private distribution among them as admittedly Gulnaz on her part treated sub-plot No,34/2 as her share by handing over its exclusive possession to Muhammad Ibrahim Soomro to the knowledge of the applicants. The applicants were even aware of the date of registration of the sale-deed in favour of Muhammad Ibrahim Soomro as is evident from paragraph 9 of the plaint filed in Suit No,402 of 1983. Failure to question sale of plot No,34/2 attracted the bar contained in Order II, Rule 2 of Civil Procedure Code, which provides that every suit must include all claims to which a plaintiff is entitled in respect of a cause of action. Sub-rule 3 of Order II, Rule 2 provides that where a plaintiff is entitled to more than one relief in respect of a cause of action then he may sue for all or any of other reliefs but if he in his suit either omits or relinquishes any of the reliefs to which he was entitled to, then he shall not be permitted at any subsequent stage to sue for such reliefs. Thus it is quite evident that Rule 2 of.
19. Order II, C.P.C. Was devised to prevent a party from splitting up its claims and remedies arising out of same cause of action against the same party or its successors. The main object of Order II, rule 2, C.P.C. Is to prevent a plaintiff to initiate multiple proceedings against a defendant on the basis of same cause of action and in case he had omitted to seek any relief based on same cause of action in one proceedings then in terms of Order II, rule 2 C.P.C. He is barred from seeking the relief or reliefs so omitted in any subsequent proceedings. It is the commonality of cause of action in the subsequent suit that bars its maintainability and the fact that the reliefs sought in both the suits are different is hardly of any legal consequence. The suit for partition filed in 1998 being subsequent and based on the same cause of action that resulted in the filing of earlier suit for pre-emption in 1983 is therefore, barred under the provisions of Order II, rule 2, C.P.C.
20. ' Furthermore, the suit for partition filed by the applicants is also defective for want of necessary party i,e, Gulnaz. Neither Gulnaz and if she was dead at the time of institution of the suit her legal heirs were made party to the suit. Upon been inquired, the learned counsel for the applicants stated that Gulnaz died issueless but then her husband was also not made a party nor it has been established that her husband died during her lifetime though in paragraph 4 of the plaint filed in suit No,402 of 1983 it is stated by the applicants themselves that Gulnaz married in February, 1983.
21. ' On account of fact that Gulnaz or her legal heirs were not made party to the suit, the existence of private partition under any written instrument would never be known. However, one thing is certain i,e, the applicants did not object to the sale of plot No,34/2 by Gulnaz to Muhammad Ibrahim Soomro in 1983 and handing over of its exclusive possession to him. Upon such sale all that the applicants were interested was to exercise pre-emption rights that were though exercised by filing suit No,402 of 1983 but the said suit was not pursued to its logical conclusion and was dismissed for non-prosecution on 6-12-1988. Thereafter plot No,34/2 changed hands and respondent become it's fourth purchaser on 11-11-1994 through a registered sale-deed. It was as late as in 1998 that the applicants after 15 years of accrual of cause of action woke up from their slumber and filed suit for partition. All this leads to the presumption that though there was no formal partition and in the records Gulnaz held 22 paisa share in both the plots i,e, plot No,34/1 and 34/2 yet way back in 1983 Gulnaz was allowed by the applicants to retain plot No,34/2 towards her share and deal with it as she liked. The fact that Gulnaz's 22 paisa share was much bigger than the area of plot No,34/2 can be reconciled from the fact that plot No,34/1 was duly constructed portion as is evident from the building plans filed by the applicants themselves whereas plot No,34/2 was originally open space with a small Katcha-pacca room built subsequently and rented out by Gulnaz to Muhammad Ibrahim Soomro who later purchased it from Gulnaz in July 1983.
22. ' In view of the above discussion I find no legal justification to interfere with the concurrent findings of both the courts below. The present revision application is therefore, dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.