' ZAFFAR HUSSAIN MIRZA, J.-This judgment will dispose of H. C. A. Nos. 44/75 and 47/75 as both these appeals arise out of the same order passed by the learned Single Judge on the Original Side dated 28th March 1975, in Suit No, 49 of 1972.
2. The controversy in this case relates to a building known as Mazhari building in which there are three main groups of co-sharers. The appellants in H. C. A. 44/75 (hereinafter to be referred to as the plaintiffs) own 50% share in the aforesaid building, whereas 46% share is owned by respondents Nos. 1 to 4 in H. C. A. 44/75 (hereinafter to be referred to as defendants Nos. 1 to 4) and the remaining 4% share belongs to respondents Nos. 5 to 13 in H. C. A. 44/75 (hereinafter to be referred to as defendants Nos. 5 to 13).
3. The plaintiffs filed Suit No, 49 of 1972, against the other co-sharers for partition and accounts of the disputed property under Order XX, rule 18, C. P. C. Read with Partition Act, 1893 seeking, inter alio, the following reliefs :-
(a) for a judgment and decree against the first defendant or any of the other defendants either singly or jointly for rendition of accounts with effect from 16th April 1960, till the date of the decree alongwith 9% interest from the date of the filing of the suit till the amount is realised by the plaintiffs,
(b) for a judgment and decree holding that the property in question cannot be partitioned or separated reasonably or conveniently among the parties according to the respective shares and to pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further direction for the sale of the property in question and the distribution of its assets among the parties according to their respective shares as may be required or considered expedient by the Court.
4. When the suit was taken up by the learned Single Judge on 28th November, 1972, the parties requested that a consent preliminary decree be passed and the learned Single Judge passed the following order "Heard counsel present. They request that by consent a preliminary decree be passed in this case.
Accordingly I order a preliminary decree incorporating the following directions:-
(2) The Official Assignee is appointed Commissioner to take accounts of the income and expenditure of the property in suit from the defendant No, I for the period commencing from 1st May 1970, till the date of his report.
(3) He is directed to ascertain the valuation of the property from qualified valuers or architects. The valuation and his report with regard to it and the accounts, to be put to Court for approval, within the period of three months.
After the Court has approved of the valuation of the property, it would be open to defendant No,. 1 and defendants Nos. 5 to 13 to apply to the Court under section 3 (2) of the Partition Act, 1893, for leave to by the shares of the other parties if they so wish, offering to pay the highest price above the valuation made by the Court. In case no such offers are received or their offer is less than the valuation made by the Court, the property will be sold by public auction, subject to further directions by the Court.
' The Commissioner's fee and amount of expenses involved will be decided at later date.
(Sd.) I. Mahmud, 28-11-72 Judge."
5. Pursuant to the directions contained in the preliminary decree the Official Assignee ascertained the value of the property from qualified architects to be Rs, 75,271 which was approved by the Court. Following the approval of the valuation upon a reference by, the Official Assignee a learned Single Judge of this Court ordered the property t9 be sold by public auction as none of the defendants had applied for leave to by the shares of the other parties in terms of the preliminary decree. Since this order was passed in the absence of defendants 1 to 4, they filed an appeal which was disposed of by a consent order which reads as follows :- "The defendant No. 1 and the defendants 5 to 13 in the preliminary decree may now make offers to the Official Assignee for purchase of the shares of the other parties in the property in accordance with the valuation'approved by ,,the Court. These offers shall be made to the Official Assignee within one month and these offers will be disposed of in terms' of the directions contained in the preliminary decree."
' Following the aforesaid order in appeal the defendants Nos. 1 and 6 submitted their offers to the Official Assignee which were in the following terms:- "To Official Assignee, High Court of Sind & Baluchistan, Karachi Re : Offer in respect of iuit Property No, P R 1/1/2-A.
' Dear Sir, ' I, the defendant No. 1 Mohammad Siddiq Mazhari who,also own the , share of defendants Nos. 2, 3 and 4, make offer to purchase the shares of other parties viz. 9 Plaintiffs-who prayed for the sale of the property in suit and are jointly entitled to 50% in the said property No, P. R. 1/1/2-A and offer Rs, 2,000 (two thousand) above the valuation of the property approved by the Court.
' Karachi,'dated 11th December, 1974.
(Sd.) Mohammad Siddiq Defendant No. 1.
' 1, Ghulam Rabbani, the defendant No, 6 in the above-noted matter, hereby offer Rs, 1,00,501, as the price of the whole of the building involved in the suit, including my share in the same, in terms of the order passed by the Hon'ble High Court in H. C. A. No, 72 of 1974 on 12th, November 1974.
' I am prepared to make a further competitive offer inside the Court also ' Karachi. (Sd.) Ghulam Rabbani dated 11th December, 1974 Defendant No, 6."
6. The offers were put up for disposal before the learned Single Judge, 'who by the impugned order rejected the offer made by defendant No, 6 as not being in the terms of the preliminary decree and accepted the offer of defendant No. 1 as being in terms of the preliminary decree. The appellants in the two appeals are aggrieved by the last mentioned order and have challenged the order by means of the present two appeals.
7. The main argument was addressed by Mr. Akhter Mahmood whose submissions were adopted by Mr. Zaffar Alam Khan, learned counsel for the appellants in the other appeal. The pivotal point in the present controversy between the parties is the meaning and the interpretation of the words "the shares of other parties" as used in the order of the learned Single Judge dated 28th November 1972 and incorporated in para. 3 of the preliminary decree. On the one band, the plaintiffs and the defendants 5 to 13 contend that the words refer to the shares of all the co-sharers in the disputed property other than the share of the co-sharer offering to purchase the property ; on the other hand, respondents Nos. 1 to 4 urge that these words are to be construed in the light of the provisions of section 3 (2) of the Partition Act, 1893 and refer to the shares of the plaintiffs alone. The learned Single Judge has agreed with the second interpretation and held that the preliminary decree allowed only the purchase of the share of the plaintiffs by any of the defendants. It will be the best to set out the reasons finding favour with the learned Judge to adopt the view as stated, in his own words as under "The preliminary decree unmistakably refers to the rights of the defendants-co-sharers to apply to the Court under section 3 (2) of the Partition Act, 1893 and read in this context the words "to by the shares of the other parties" occurring immediately thereafter the leave to by the shares of other parties can only refer to the party asking for sale, namely, the plaintiffs. In this context I may recall that this option was exercised by the defendants Nos: 1 to 4 at an earlier stage in their written statement. If by the consent preliminary decree it was intended by the plaintiffs or other shareholders to deny to the co-sharers defendants Nos. 1 to 4 right available to them under section 3 of the Partition Act, 1893, it was singularly inappropriate to make any reference to section 3 (2) of the Partition Act, 1893."
' Before us in support of the present appeals the same contention was reiterated that the consent preliminary decree as well as the subsequent order passed in appeal provided for the sale of the entire property in dispute to the successful highest bidder over the ascertained value of the property out of the two groups of co-sharers who were defendants in the suit. It was conceded at the bar by Mr. Akhter Mahmood that section 3 of the Partition Act, 1893 contemplates the sale only of the co sharer in the property who requests for a direction to sell the property and not the other co-sharers not so applying. But the argument was that a Court is by no means confined to the provisions of section 3 in passing a consent decree and could, therefore, direct the sale of the entire property to one of the co-sharers if the parties consented to such manner of disposal of a partition suit. The proposition advanced by the learned counsel may not be open to exception, but the question is whether the consent preliminary decree in the present case did so direct, ignoring the limits prescribed on the power of the Court by section 3 of the Partition Act, 1893. If the argument of the learned counsel is accepted it would inevitably mean that defendants 1 to 4 would be deemed to have surrendered their rights in property in lieu of money compensation to be purchased by defendants 5 to 13 in case they were not able to offer a higher price than the latter.
Same would be the case so far as defendants 5 to 13 are concerned vis-a-vis the defendants 1 to 4.
But as found by the learned Single Judge this would be inconsistent with the plea of defendants 1 to 4 in their written statement wherein they had sought to exercise their option to purchase the shares of the plaintiffs subject to the provisions of section 3 of the Partition Act, 1893. Similarly defendants 5 to 13 had pleaded in their written statement that they may be allowed to take part and bid in the auction in case the Court decided to hold auction of the property and also referred to other rights available under the Partition Act to purchase the property exclusively as owners on payment of price of the shares of the other co-sharers. Thus both groups of defendants had claimed rights under the Partition Act and were not willing to surrender their own rights in the property in case of a sale order by the Court.
9. No argument was advaneed on behalf of the appellants as to what was the necessity for referring to section 3 (2) of the Partition Act, 1893 in the preliminary decree. If the intention was to dispose of the whole property by way of a restricted sale among the defendants no reference to any provision of the Partition Act would seem to be necessary and to subject the rights of the defendants to the leave of the Court. On an overall consideration of the terms of the consent decree we are not left in doubt that the directions contained therein were made keeping in view c the provisions of section 3 of the Partition Aot as they bear strikin resemblance to all the provisions contained therein. We cannot, therefore, disagree with the learned Single Judge that the decree provided only for th sale of the share of the plaintiffs.
10. In the alternative the, submission on behalf of the plaintiffs was that the offer made by the defendants 5 to 13 being of a higher order should have been accepted in preference to that of defendant No. 1 to the extent of the plaintffs' share. We would have ordinarily considered this contention, but we find in, the order of the learned Single Judge an observation that in spite of opportunity given to defendant No, 6 at the hearing he was not prepared to make an offer to purchase the share of , the plaintiffs only at the valuation proposed by him. The learned Single Judge was, therefore, left only with one proposal made by defendant No. 1 which was accepted by him. This argument is, therefore, not available to the appellants.
11. In the view that we have taken the contention of defendant No. 1 that the present appeal is not competent as the order in appeal was not a final order, has no merit. Section 8 of the Partition Act, 1893 provides, inter alia, that an order for sale made by the Court under section 3 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure. The present appeals are, therefore, clearly competent.
12. In the result, there is no merit in these appeals which are dismissed with no order as to costs.