1. ' SYED ZAKIR HUSSAIN, J.---This Suit bearing No, 418/2008 is for partition and permanent injunction filed by the plaintiffs against the defendants on the facts mentioned in the plaint thereof.
2. ' In short, the facts are that the defendant No,1 and one Roshan Qamar (since deceased) had been joint owner of the Plot No,42-V, Block 6, PECHS, Karachi at admeasuring 2000 Sq yards under a registered sale-deed, dated 7-6-1966, out of which, an area of about 600 Sq yards, were constructed as ground plus one storey building; the ground floor premises occupied by the defendant and the first floor premises remained in possession of the plaintiff No,1 while the remaining portion of the property measuring about 1400 Sq yards is in joint possession of the parties; after the death of the said Roshan Qamar on 7-3-2001, her share of 50% in the said property devolved on her surviving legal heirs namely Iqbal Ahmed, Mazhar-ul-Islam, Noor-ulIslam, Zafar-ul-Islam; the plaintiffs obtained a letter of administration in respect of the said property under section 378 of the Succession Act for the said inheritance, in SMA No,93 of 2003 on 11-5-2006; the PECHS Ltd. Mutated 50% undivided share of residential plot referred to above in the name of surviving legal heirs named above under the said letter of administration issued by the Sindh High Court, in place of the said late Roshan Qamar; her sister Aziz Bano the co-owner of the said plot up to the remaining half 50% thereof, being undivided share, gifted the same to her sons Nazir and Athar the defendants Nos. 1 and 2 of the suit in land; the PECHS Ltd. Mutated the same in their favour accordingly and such, the defendant named above became in inter se co-owners of the said undivided half of the property in question; it is stated that the plaintiffs tried at their best level to get the property partitioned decisively but failed owing to non-cooperative conduct of the other side; the plaintiffs came to know that the defendants are trying to sell out the joint property without consent of the plaintiffs behind their back and if they succeed in such selling process, third party interest would stand created and the plaintiff shall suffer irreparably; despite repeated request of the plaintiffs, the defendants did not agree to dispose of the property completely with mutual consent, and hence, the plaintiff filed the present suit for partition and injunction to the following effect:-- "Direct the Nazir/Official of this Hon'ble Court to take over the possession of the Suit property bearing No, 42-V, Block No,6, measuring 2000 sq. Yds. Situated in PECHS, Karachi and to sell the same at the highest cost/offer/rate to the highest bidder, and thereafter distribute the shares amongst plaintiffs and the defendants Nos. 2 and 3, as per their legal entitlement.
3. ' Direct the defendants to deposits all the original title documents of the said Property bearing No,42-V, Block No,6, measuring 2000 sq. Yds. Situated in PECHS, Karachi, with the Nazir of the Court.
4. ' That in the alternative direct the Nazir/official assignee of this Hon'ble Court to effect the partition of the Property baring No,42-V, Block No,6, measuring 2000 sq. Yds. Situated in PECHS, Karachi. And hand over peaceful possession of 1000 sq. Yds of open plot and possession of first floor to the plaintiffs and 400 sq. Yds, Open plot adjacent to Ground Floor and House on Ground Floor to the defendants Nos. 2 and 3.
5. ' Restrain permanently the defendants, their agents, legal heirs, attorney, assigns, employees or any other person or persons claiming through the under their behalf from selling/gifting/ transferring of the said Property bearing No,42-V, Block No,6, measuring 2000 sq. Yds., situated in PECHS, Karachi, in any manner and from creating third party interest in respect, of the said property and/or from doing all such acts, deeds and things by which rights of the plaintiffs are prejudiced in any manner.
6. ' Cost of the proceedings.
7. ' Any other or better relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of this case."
8. ' The defendants being served filed joint written statement in the matter, they admitted the joint ownership. Of the parties as well as possession as stated in the plaint of the suit, but denied the allegations contained therein, and stated that the suit is not maintainable and has been filed with mala fide intention, and no cause of action arose to the plaintiffs for the same, and therefore, the plaint thereof, is liable to be rejected under Order VII, Rule 11, C.P.C. The defendants also levelled similar allegations against the plaintiffs in their written statement and prayed for dismissed of the suit with cost as well.
9. ' The plaintiffs filed an application under Order XL Rule 1 C.P.C. Which bears C.M.A. No, 2304/2008 praying for an order appointing the Nazir or any other person, Receiver of the suit property to take over possession and carry out partition proceedings, and or to put the property to auction and distribute among the owners namely, the parties hereto, the sale proceeds thereof, accordingly, and thereby resolve the entire controversy in the interest of justice. The plaintiffs also filed an application under Order XXXIX, Rules 1 and 2, C.P.C., which bears C.M.A. No, 3625 of 2008, praying for temporary injunction against the disposal of the property to any third party and to maintain status quo in the matter till final decision of the suit. The defendants also filed a similar application, dated 23-4-2008 bearing S.M.A. No, 3625 of 2008.
10. ' The plaintiffs also filed an application under Order XV Rule 1, C.P.C. Bearing C.M.A. No, 6933 of 2009, praying for pronouncement of judgment decreeing thereby the suit of the plaintiffs without evidence and settlement of issues, for, on factual and legal aspects of the matter, the parties are not at issue. Both the plaintiffs also pointed out that the defendants have shown willingness to sell the property vide Para. 11 at page 3 and Para. 20-C at page 6 of their written statement. The plaintiffs also stated that since the property is not capable of being partitioned horizontally and vertically by metes and bounds, the same therefore, is liable to be put to auction for sale and the sale proceeds whereof, then accordingly be distributed among the plaintiffs to resolve the controversy between the parties peaceably.
11. ' The parties formally seem to have opposed each other in their moves referred to above, respectively.
12. ' I have heard the learned counsel for the parties and perused the record as well as the relevant law. There is no dispute on law point that an un-divided property is open to be sold out by the respective joint owner to any perspective buyer. 2008 YLR 2965, Karachi, is the current case-law supporting the said view, which, at its relevant portion (at page 407, para.7) runs:-- "(7) The above judgment by a Learned Single Judge of Peshawar High Court is not binding and with due respect I am unable to subscribe the view. Section 44 of Transfer of Property Act permits transfer of share in the property by one of two or more co-owners of immovable property subject to the condition mentioned in the section and its proviso in absence of any statutory bar the co- owners cannot restrain the other co-owners from selling/transferring their respective shares in the property."
13. Similarly, the provision of the section 2 of the Partition Act makes it generally permissible that in a suit of like nature, a property of similar nature if found incapable of being partitioned by metes and bounds, the same may be sold out and the proceeds thereof, may be distributed among the share holders/co-owners to resolve the controversy between them in respect thereof as once for all. In the case of Muhammad Din v. Illahi Noor and others, reported as PLD 1975 Lah. 1393 ratio decided in the matter elaborating the aforesaid section of law, discussed in para.6 thereof at page 1395, does analogically apply the instant case very much. The same runs:-- "(6) The first point raised by the learned counsel for the respondents is without any substance.
14. Section 2 provides that "whenever in any suit for partition.... It appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholdings therein or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholder, interested individually or collectively to the extent of one moiety or upwards, direct a sale of this property and a distribution of the proceeds." Section 8 inter alia provides that "any order for sale made by the Court under sections 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure." Clearly it is the order made under section 2 which amounts to a decree and not a completed and confirmed sale. The order under section 2 being a decree becomes final unless appealed against. The question about the effect of section 8 came up for consideration before their Lordships of the Supreme Court in Mirza Adam Khan v. Muhammad Sultan (PLD 1975 SC 9). The question in that case was whether the provision of Order XXI, Rule 95 was applicable to such a decree. This was answered in the affirmative and it was held that order of sale could be executed in the manner prescribed in Rule 95 of Order XXI of the Code. I am, therefore, of the view that the order of sale being a decree, it is not within the competent of the.
15. Court to set it aside except under the provisions of Order XLVII, C.P.C., which has not been invoked in the present case. The learned trial Court has, therefore, acted without jurisdiction in setting aside the sale on the compromise between the parties virtually with a view to set aside the decree passed by it under section 2 read with section 8 of the Partition Act."
16. ' In the case of Israr Muhammad Khan and others v. Senior Civil Judge, Lahore and others, the Hon'ble Supreme Court observed:-- " The need for disposal of the property according to the compromise arrived at in 1966 between the parties also implied that the property was indivisible and that on sale the two sides could share the proceeds equally. No feasible agreement could be worked out and it was in this background that public auction was ordered. The petitioners had been allowed to participate in the auction and they can purchase the share of the other side. Since this is the position in our considered opinion no interference is called for. The petition is therefore dismissed."
17. ' The parties from the record in hand, do not seem to be at variance on any issue since they admit:- -
(1) They are in joint ownership;
(2) They are in use and in their respective possession jointly;
(3) There is no dispute over sale of the property as a whole;
(4) The partition of the property has not taken place in any permissible manner;
(5) The co-owner has legal right to sell his share in the property to any perspective buyer;
(6) The partition by metes and bounds is not feasible; ' Hence, the request contained in the application under Order XV R.1 C.P.C. As indicated above lawfully deserves to be acceded to. In the case of Directorate of Small Industries, Government of Balochistan through Sales Manager, Karachi Airport, Karachi v. Civil Aviation Authority through Director General and another, reported in 1993 M LD 1836 (Karachi), it was observed: "In view of the above said statement the learned counsel for the plaintiff agrees that in terms of Order VI, Rule 1, C.P.C. The parties do not appear to be at variance on any issue and a decree in terms of clauses (a) and (b) of the above-quoted statement can be passed. By consent, therefore, such decree is passed with no order to costs. With the decree in the suit all or any of the applications pending in it also stand disposed of."
18. ' The case of Fateh Muhammad through L.Rs, and others v. Fida Hussain Shah through L. Rs, reported in 2007 CLC 1885 (Lahore), the observations are favoruable applicable to the views expressed above, which runs as under.
19. ' Further, in the case of Muhammad Rafiq and others v. Muhammad Ali 2004 SCM R 704, the apex Court has observed that once an admission is made in the written statement, no issue is required to be struck nor any further proof is required."
20. Consequently, I do hereby decree the suit preliminarily for the relief of partition as prayed for with the result the Nazir is directed to take over possession of the suit property and put the same to auction and distribute the sale proceeds amongst the parties according to their respective shares.
21. The parties are directed to deposit the title documents (whatsoever in their possession) within fifteen days time with the Nazir of this Court.
22. ' All the applications listed above, stand disposed of in the above terms, accordingly. There is no order as to costs.