MUHAMMAD NASIR MAHFOOZ, J:- Impugned herein are the orders dated 08.05.2007 passed in appeal of present petitioners against the order dated 03.12.2005 of learned trial court whereby during final decree for partition, petitioners were held entitled to pay Rs.290,000/- to the respondents/ applicants.
2. Brief facts are that the respondents No.1 to 3 filed a suit for declaration, possession and permanent injunction claiming an area of "three Pao" as mentioned in the heading of the plaint and the boundaries mentioned in zamima annexed with the plaint against predecessor of respondents No.4 to 14 which was put to trial and after recording of evidence decree for partition was passed on 29.07.1999 (there was no prayer for partition).
3. Noor Muhammad, predecessor of respondents No.4 to 10 filed appeal against other respondents which was also dismissed on 13.04.2000. Thereafter, application for final decree for partition was filed on 29.08.2000, which was put to trial and local commission was appointed. The said local commission prepared detail report but also held the petitioners liable to leave some of the land to the respondents/plaintiffs. Petitioners aggrieved therefrom submitted an application before the learned trial court objecting to the final decree for partition on the ground that neither they were party to the original suit nor they have been allowed to associate in the proceedings in any manner so they have been condemned unheard.
4. Learned trial court on 25.03.2003 dismissed the said application which was challenged by petitioners in revision but it is stated that the same was also dismissed but copies of the order are not available on record. Meanwhile, during this proceedings on 03.12.2005 learned trial court held the petitioners entitled to pay Rs.290,000/- out of which Rs.25,000/- was received in court from the petitioners, having failed to get remedy in appeal, hence this revision petition.
I have heard learned counsel for the parties and perused the record.
5. This civil revision has two very important aspects. Firstly, respondents filed a suit for declaration and possession without any prayer for partition. Secondly, present petitioners were never impleaded as party to defend the case.
6. It is very strange that on 29.07.1999 a partial decree for partition was passed and has been upheld in appeal on 13.04.2000 but only inter se respondents. Thereafter, application for final decree for partition was filed which was put to trial and patwari was appointed as local commission. At this stage petitioners got knowledge and challenged proceedings of final decree for partition but his application was dismissed by the learned trial court on 25.03.2003.
7. During proceedings order sheet dated 03.12.2005 reveals that certain conditions for payment of Rs.290,000/- and in default thereof petitioners were bound to give 05 kanals of land in excess of the suit land.
Petitioners are shown to have paid Rs.25,000/- and assailed the same in appeal which was dismissed on 08.05.2007. Hence, this civil revision.
8. During hearing, respondents' attorney himself came to the rostrum and stated that he has received only three Pao land in execution proceedings and it is, therefore, less. At this juncture, reference to zamima annexed with the plaint which describes area and boundaries of suit property show, that the whole claim is for three Pao share.
9. Irrespective of what has been held in the impugned orders, it is crystal clear that when there was no prayer for partition how decree for partition was granted, and when petitioners were held to be necessary party whey respondents or trial court did not implead them as party, moreso, if petitioners did appear in court and requested for objecting to proceeding why they were not given proper opportunity of hearing. Simply because the petitioners were made to surrender to the whims of respondents and the court they paid Rs.25,000/- and yet to pay Rs.290,000/- in the year 2005, on the pretext of having entered into a compromise. When learned counsel for respondents was asked to pin point the said compromise from the record on file he admitted that there was no compromise but an affidavit, but even this affidavit is not part of record. A price of a piece of land in this area would not fetch such a huge amount and and was well nigh impossible in the year 2005 as most of the land is on hills and insignificant area is on plain.
10. It is on record, that execution petition has been withdrawn on 27.07.2001 as having been satisfied, but still petitioners are being chased by respondents to subdue them for some extra over and above. Order 20 Rule 18 of CPC provides that court can pass a decree for partition in favour and against the parties which impliedly mean not against any person not party.
Having considered arguments and perused record, I feel that respondents have unnecessarily dragged the petitioners into litigation, and from the year 2007 when this civil revision is pending, no end is in sight to address the agonies of petitioners. There is no other alternative but to hold that impugned orders of learned courts below needs interference by this court in revisional jurisdiction, this civil revision is allowed, the impugned orders are hereby set aside to the extent of petitioners, but remaining proceedings inter se parties is not disturbed having been satisfied.
No order as to costs.