Atir Mahmood, J. Brief facts of the case are that on 31.07.1991, respondent No.1 Ghulam Waris filed a suit for declaration and in alternate, suit for possession through partition against the petitioners and others regarding property comprising godown measuring 92 sq. ft. and a shop fully described in headnote of the plaint (hereinafter referred to as "the suit properties") with the averments that the suit properties were evacuee Non-Muslim properties; that Inayat Ali was predecessor-in-interest of respondents No.1 to 8 had a verified claim and was issued a compensation book valuing Rs.35,580/-; that said Inayat died and compensation book was issued in favour of his said LRs; that in the year 1959, the said properties were transferred; that respondent No.1 was a minor while female respondents were "parda nasheen" ladies; that Muhammad Iqbal, respondent No.2 (defendant No.1), got issued PTD of godown in his favour exclusively notwithstanding the fact that price was adjusted against the said compensation book; that shop which was also purchased in auction and price was paid for from the said compensation book was transferred in favour of LRs in equal share; that respondent No.2 effected the family settlement and the shop came in the share of other LRs; that there is a reference to respondent No.1 being busy in his education and death of some LRs; that he came to know about 4 years ago that respondent No.2 had obtained PTD of godown in his name and has proceeded to sell the same in favour of Bahadur Khan, predecessor-in- interest of respondents No.9 to 17 vide registered sale deed dated 12.05.1977; that he transferred 234 sq. ft. out of the shop in favour of present petitioners by means of collusive decree dated 16.06 .1982; that respondent No.2 had no share in the shop; that the alternate plea taken was that even if respondent No.2 is entitled to any share, same was 1/6 which comes to 157 sq. ft. and said transfer in excess from the shop is void. The plaintif f accordingly prayed for possession of godown as well as the shop and in the alternate, a decree for separate possession by partition.
2. Defendants No.8 & 9 and 10 to 18 contested the suit by filing written statement s. Out of divergent pleadings of the parties, issues were framed and evidence led by the parties was recorded. Thereafter , learned trial court dismissed the suit vide judgment and decree dated 07.02.1996. Respondent No.1 filed appeal which was partially allowed by learned Additional District Judge, Chakwal vide judgment and decree dated 27.05.1997 in the terms that the godown was exclusively transferred to and owned by Muhammad Iqbal, as such, it was validly sold by him to Bahadar Khan. Regarding the shop, he found that Muhammad Iqbal had only 1/6 share which comes to 157 sq. ft. in the shop and transaction inter se the present petitioners and said Iqbal would be binding only to the said extent.
He also declared that the shares of the parties with reference to said transfer docu ment and also death of Khatoon Begum, mother of respondent No.1. The case was accordingly remanded back for passing a final decree.
3. Feeling dissatisfied, both sides prefe rred revision petitions. Vide consolidated judgment and decree dated 09.10.2003 passed by this Court, the revision petition filed by the petitioners was dismissed whereas the revision petition filed by respondent No.1 was partly allowed and a preliminary decree was passed determining the shares of the parties as follows:
1. Ghulam Waris, plaintiff 7/30
2. Muhammad Iqbal respondent No.2 and consequently , petitioners1/6
3. Mst. Moaafia Begum 1/5
4. Mst. Mobina Begum 1/5
5. Mst. Surayya Begum (predecessor-in-interest of respondents No. 5 to 8)1/5 Vide above-referred judgment, this Court directed the learned trial court to pass a final decree in light of the above declared shares of the parties.
4. Thereafter , learned trial court passed final decree in the suit of the plaintif f/respondent No.1 in the terms that subject to payment of Rs.8,66,666/- to defendants No. 8 & 9, the plaintif f and defendants No.2 to 7 will be owner of the suit shop vide judgment and decree dated 27.06.2006. Feeling aggrieved, the petitioners filed appeal which was partially allowed by learned Additiona l District Judge, Chakwal vide judgment and decree dated 26.02.2009 as under: "... the plaintif f and respondents No.2 to 7 are ready to buy the same as per market value determined by the Court.
In this case, as per report of local commission, the value of the suit property is Rs.25,00,000/-. According to statement of Rustam Ali as AW-1, its value is Rs.40,000/- and the Court fixed Rs.52,00,000/- and now the defendants in additional evidence demanded Rs.18,00,000/- per marla is accept ed and the impugned judgment and decree is modified in terms of said demand. "
Hence, this civil revision has been preferred.
5. Learned counsel for the petitioners inter alia contends that it was overlooked that the shop, adjacent to godown and connected exclusive passage are all a compact one unit property and was partitionable but learned courts below have incorrectly held otherwise; that the learned courts below could not go beyond the preliminary decree passed by this Court; that the impugned judgments and decrees are in violation of Sections 2 and 3 of the Partition Act, 1893; that the law laid down in Fiurdous Begum case (2008 CLC 248) was misapplied; that the petitioners were always willing to buy share of other co-owners but their request was not acced ed to; that learned courts below have committed material illegalities while passing the impugned judgments and decrees, therefore, these cannot sustain. He accordingly prays that this civil revision be allowed, the impugned judgments and decrees be set aside and the suit of respondent No.1- plaintif f be dismissed. In support of his arguments, learned counsel for the petitioners has placed reliance on the ratios laid down in cases Messrs Conforce Ltd. vs. Messrs Rafique Industries Ltd. (PLD 1989 SC 136), Sheikh Iftikhar Ahmed and another vs. Dr. Muhammad Ilyas (2003 MLD 338 Lahore) and Firdous Begum etc. vs. Mst. Salamat Bibi and another (2008 CLC 248 Lahore).
6. On the other hand, learned counsels for the respondents have vehemently opposed this civil revision and fully supported the impugned judgments and decrees.
7. Arguments heard. Record perused.
8. The main thrust of arguments of learned counsel for the petitioners is on the point that learned trial court could no go beyond the preliminary decree passed by this Court. This ground was not taken before the learned lower appellate court, therefore, it cannot be raised at this stage. Nevertheless, this Court passed a preliminary decree while determining shares of the parties which have not been disturbed by learned courts below and the quantum of shares as determined by this Court has been kept intact. Ordering sale of the suit property and disbursement of the sale proceeds as per shares of the parties, determined by this Court, does not mean that learned courts have travelled beyond the preliminary decree passed by this Court. The contention learned counsel for the petitioners in this regard is misconceived which is accordingly repelled.
9. The other contention of learned counsel for the petitioners is that the impugned judgments and decrees are against the provisions of Sections 2 & 3 of the Partition Act, 1893 as no written application by any of the parties was ever moved for sale of the suit property instead of division or to buy it. Sections 2 and 3 of the Act ibid are reproduced below: "2. Power to Court to order sale instead of division in partition suits. - Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, 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 shareholders 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, an 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 shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
3. Procedure when sharer undertakes to buy. -(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation in the share or shares of the party of parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the Court shall order a sale of the share of shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications." (Emphasis provided)
Bare reading of above provisions makes it crystal clear that it is the jurisdiction of the court to decide whether the property is partitionable or not as it is clearly written in Section 2 reproduced abov e that in a suit for partition, if it appears to the court that the property is not divisible due to its nature and the sale proceeds is more beneficial, then the court may pass order for sale of the property and distribution of the sale proceeds amongst the shareholders. The court, having satisfied that the property due to its nature was indivisible, ordered for sale of the suit property which was within its jurisdiction. So far as non-moving of written application is concerned, the above provision mentions nowhere the words written application? but the word request?. In my opinion, a request may be the written or verbal and non-filing of written application by any of the parties for sale of the suit property neither makes the court functus officio or ineffective nor could take away authority of the court to pass such an order. Even otherwise, where a preliminary decree stands passed, the provision of Section 2 of the Act is not applicable and the court has to move ahead to proceed in accordance with Section 3 of the Act. In this regard, judgment of this Court in case Firdous Begum and 6 others v. Mst. Salamt Bibi and another (2008 CLC 248 Lahore) is referred. Relevant portion therefrom is reproduced below: "Bare perusal of section 2 of Act, 1893 (ibid) reflects that request for sale can be made, where a decree for partition might have been made. Legislature has consciously used the phrase "where a decree for partition might have been made". Sale, according to provisions of Section 2(ibid), pertains to the cases, where decree might have been made. The above provision of law is not applicable to the case where the decree has been passed. Partition decree consists of two decrees so to say the preliminary decree and final decree. Once the preliminary decree is passed, the provisions of section 2 of the Partition Act, will not apply and the Court has to pass final decree. The court, in such circumstances, will resort to the provisions of Section 3 and in case of failure of any shareholder to apply for leave to buy the share, the property is liable to be auctioned. "(Emphasis provided)
10. So far as the contention of learned counsel for the petitioners that no written application was made by any of the parties to buy the property is concern ed, it is true that no written application was ever made by the parties to buy the suit property . But it is also true and admitted fact that both sides have made verbal requests to the courts to buy the suit property which is evident from the record and even such requests have been reiterated by the parties before this Court. In Section 3 of the Act, there is no mention of words written application but the word "leave" which means the "request" or "prayer". The request or leave may be verbal or written, therefore, mere non-filing of written application for the said purpose will not defeat the right of any of the parties to buy the suit property as both sides are still willing to buy share(s) of the other(s). The argument of learned counsel for the petitioners does not hold water which is accordingly discarded.
11. Apropos argument of learned counsel for the petitioners that the petitioners were always willing to buy the suit property but their request was not acceded to. Suffice it to say that both sides were willing to buy the shares of the others in the suit property, therefore, it was to be sold to one of them. Here arises a question as to who is more entitled to buy the property - the petitioners or the respondents. Admittedly, the possession of the suit property lies with the respondents who have 5/6 shares as compared to 1/6 share of the petitioners in the suit property, as such, their share is much bigger than that of the petitioners in addition to the fact that they hold possession of the property. In the circumstances, it seems more appropriate and equity demands as well that the respondents having major share in and possession of the suit property be given opportunity to purchase the minor share of the petitioners in the suit property. Reliance is placed on the dictums laid down by the learned High Court of Judicature at Bombay (Nagpur Bench, Nagpur) in its judgment dated 18.12.2013 passed in Second Appeal No.42/2013 titled "Smt. Vandana and others v. Pradip and others" wherein it has been held that: "... I find that the parties already in possession of the suit property should retain the same and party not in possession thereof should get compensation equal in value of his share in the suit property , on the basis of principle of owelty . The appeal deserves to be allowed in these terms." (Emphasis provided)
Another judgment from Indian Jurisdiction allowing possessor of the property to purchase the property is in case Badri Narain Prasad Chaoudhary and others v. Nil Ratan Sarkar (AIR 1978 Supreme Court 845 (Patna) . Relevant portion from the said judgment is as under: "...the defendant is the smaller co-sharer and he is using the property as a shop-cum-residence. Equity requires that he should be given a preferential right to retain the whole of the suit property on payment of compensation being the just equivalent of the value of the plaintif fs" share to them."(Emphasis provided)
There is another judgment from Indian Jurisdiction in case Kalyan Kumar Basak v. Salil Kumar Basak and others (AIR 1989 Calcutta 159) wherein it was held that the court should allow a majority shareholder in a property to be sold to buy shares of minority shareholders. Relevant part of the said judgment reads as under: "The Court can always allow some of the co-sharers having a major share to buy up the shares of other co-sharers in order to protect the family dwelling house from being sold in auction."(Emphasis provided)
Even otherwise, the petitioners themselves demanded price of the suit property as Rs.18,00,000/- before the learned lower appellate court which was accepted by the respondents and the decree of learned trial court was accordingly modified by learned lower appellate court. When the price demanded by the petitioners before learned lower appellate court was accepted and granted to them, they, at this stage, cannot be permitted to again pray for sale of the property to them.
12. Both the learned courts below have passed the impugned judgments and decrees concurrently against the petitioners which are immune from interference by this Court in its revisional jurisdiction unless there is some glaring illegality therein which could not be pointed out by learned counsel for the petitioners, therefore, no interference is warranted.
13. For what has been discussed above, this civil revision has no substance. The same is accordingly dismissed .