This writ petition calls in question order dated 23.10.2019 and 20.11.2019 of the learned Courts below whereby the petitioner's application under Order I, Rule 10, C.P.C. for impleadment as a party in a suit for partition was dismissed and the revision petition there against was also declined.
2. Respondent No. 3 (Asim Zaman Khan) filed a suit for partition of commerc ial and residential plot against Respondent No. 4 (Javed Usman Khan) claiming that his real sister Mst. Shazia Summaya was owner , of the property , on her demise, she was succeeded by Respondent No. 3, as her real brother and Respondent No. 4 as her husband and that both of them inheri ted the property in- equal share and also that on the demise of late Mst.
Shazia Summaya, her property was mutated in the name of two legal heirs i.e, Respondent Nos. 3 and 4. With these assertions, a decree for partition was claimed. The suit was instituted by Respondent No. 3 on 03.7.2015 wherein Respondent No. 4 filed his written statement on 28.9.2016. In his written statement, the Respondent No. 4 admitted that late Mst. Shazia Summaya was his wife and that Respondent No. 3 (Asim Zaman Khan) was real brother of deceased and that the property was owned by the deceased and also that the property devolved upon Respondents Nos. 3 and 4 in equal share through inheritance and that the property was to be divided in equal shares between them.
3. During the pendency of the suit, petitioner (Muhammad Rafi) filed an application under Order I, Rule 10, C.P.C. for his impleadment as a party claiming that he used to live in the house of Mst. Shazia Summaya, served her throughout life and that on account of his services, the deceased allegedly executed an agreement by which she gifted the property in his favour and that he came to know of the suit when the commission appointed in the suit for partition visited the site. It was claimed that the petitioner filed a suit for declaratio n and specific performance and that he was a necessary and proper party in the suit for partition. The application under Order I, Rule 10, C.P.C. was filed on 24.1.2018. Strange enough Respondent No. 3 (who is plaintif f in the suit for partition) did not oppose the application while it was resisted by Respondent No. 4 who categorically stated that the deceased remained owner of the property till her death; the property devolved upon her legal heirs i.e. brother and the husband in equal share and that the property was mutated in the revenue record in favour of the legal heirs and further that the alleged agreement relied upon by the petitioner/Muhammad Rafi was a forged document and that the petitioner was never the servant of deceased. It was added that the deceased lived with Respondent No. 4 in Pak Pattan till her death and she was a Pardha Nasheen lady and that the application was filed with mala fide intention and in collusion with Respondent No. 3 (plaintif f in the suit for partition).
4. Learned Civil Judge, Depalpur , District Okara after considering the stance of both sides, dismissed the application under Order I, Rule 10, C.P.C., vide order dated 23.10.2019. Revision petition filed by the petitioner also ended in dismissal vide order dated 20.11.2019 of the learned Addl. District Judge, Depalpur . In the instan t petition these two orders have been challenged.
5. Learned counsel for the petitioner argued that the petitioner was a necessary and proper party and that Section 8 of the Punjab Partition of Immovable Property Act, 2012 was misconstrued and that the petitioner claimed title in the property and was interested to protect his interest in the property and his impleadment in the suit was, therefore, necessary and essential.
6. Submissions made by learned counsel have been given due consideration. Record annexed with this writ petition has also been carefully examine d. Perusal of the copy of the plaint in the suit for partition, wherein the distribution of the property belonging to late Mst. Shazia Summaya has been claimed, was filed by real brother Asim Zaman Khan, who is Respondent No. 3 in this writ petition. In his plaint he alleged that the property belonged to the deceased; and on her demise, it devolved upon Respondents Nos. 3 and 4 in equal share as brother and husband of the deceased and that the suit property was to be divided between them. There is no reference to any claim of Muhammad Rafe petitioner . The suit was instituted on 03.7.2015 by Respondent No. 3 himself.
Respondent No. 4, husband of the deceased filed his written statement on 28.9.2016 wherein he reiterated that the property belonged to the deceased Mst. Shazia Summaya, who was his wife and that the same devolved upon the plaintif f (brother of deceased) and Respo ndent No. 4 (husband of the deceased). It is also discernible from the file that on the demise of Mst. Shazia Summaya, the mutation of inheritance, was attested in favour of her legal heirs and that the said legal heirs i.e. plaintif f and defendant in the suit for partition, were reflected as successors/owners of the property in the Register Haqdaran. It is also discernible that the suit for declaration, purportedly filed by the petitioner Muhammad Rafi, was instituted on: 06.1.2017 i.e. two years after the filing of the suit for partition. It is surprising that Respondent No. 3 (Asim Zaman Khan) brother of deceased Mst. Shazia Summaya, who had himself filed a suit for partition had stated on Oath therein that the property devo lved upon him as a brother and Javaid Usman Khan as husband of the deceased in equal share, submitted in his written statement in the, suit of Muhammad Rafi to the effect that some gift was made but the same was cancelled with mutual consent in the presence of witnesses and that the petitioner was paid some compensation; and also that the petitioner had no concern with the property . The written statement was filed on 21.2.2018 wherein the stance, taken was contradictory to what Respondent No. 3 had earlier claimed in plaint for partition and this obviously supports the stance of Respondent No. 4 that the filing of suit and the filing of application under Order I, Rule 10, C.P.C. by petitioner was sponsored by Respondent No. 3 to create unnecessary hurdles in the finalization of suit for partition knowing well that no such document was ever executed. It is discernible from the file that the suit for partition was pending since July 2015 and for more than 21/2 years neither any application for impleadment was filed nor Asim Zaman Khan ever withdrew from his earlier stance and despite that a collusive reply to the application was filed by him which speaks volumes about the purpose of suit and the intention behind the moving of application under Order I, Rule 10, C.P.C. It is also manifest that Respondent No. 4 specifically stated in his defence that his wife lived with him till her death. She was living in Pak Pattan and that the stamp paper of the alleged agreement dated 26.2.2009 had been fabricated, which was statedly purchased from Naseer Bhutta resident of Chak No. 40-D, Tehsil Depalpur; a place at a distance of 55 KM from the residence of Mst. Shazia Summaya. It was explained that she was a Purdah Nasheen lady and was living with Respondent No. 4 till her death in Pak Pattan, the document was a complete fabrication and forged and that the petitioner had committed an offence punishable under Sections 420, 468 and 471, P.P.C. In these circum stances, the stance of Respondent No. 4 was that the petitioner was sponsored by Respondent No. 3 and that he was neither necessary nor proper party .
7. Perusal of the copy of plaint in suit for declaration and specific performance reveals that the petitioner is claiming a declaration to the effect that he be declared to be owner and, in the alternative, he claims specific performance.
In either case, declaration has not been granted in his favour . The alleged agreement dated 26.2.2009 relied upon by him, was not attested by any close relative of the deceased. Curiously enough neither the brother nor the husband is shown to be witnesses. The presence of any male member is not claimed. All these factors of course raise number of questions as to the genuineness of the document which obviously will be attended by the Court ceased of the suit for declaration and till such time his suit is decreed and he is declared to be owner , he possibly cannot claim any proprietary interest in the property so as to plead his entitlement for becoming a party in partition suit.
8. At present for the purpose of deciding the question as to whether the petitioner is a necessary or property party , petitioner referred to certain cases wherein the provision of Order I, Rule 10, C.P.C. was interpreted. The referred cases had their own, distinguishable facts. Obviously , a necessary party is one without whom no decree can be passed or who is bound to be affected by the decree. Petitioner in the peculiar circumstances of this case was neither necessary nor proper party . There are serious doubts as to the genuineness of his claim. The fact that a suit has been filed by the petitioner which is still for declaration and for specific performa nce means that the petitioner is praying for a decree which as yet has not been passed in his favour .
9. In any case, the suit for partition was between the two legal heirs of the deceased wherein Respondent No. 3, who was the plaintif f and Respondent No. 4 who was the defendant, had taken one stance that the property was owned by the deceased and that the same had devolved upon them in equal share, being brother and husband of the deceased, .respectively . The co-owners of the property who were the nece ssary and proper parties have already been impleaded. In so far as the petitioner is concerned, he has as yet no title in the property and is struggling for a declaration in his suit. For the decision of the questions arises between the shareholders in a joint property , in suit for partition, only the subsisting owners of the property are the necessary and proper party . The petitioner's impleadment at this stage will result in extraneous issues which at present are not the subject matter of suit for partition. Till such time, the petitio ner succeeds in proving that the agreement was actually executed by the deceased and the gift was made, he cannot claim to be either a co-sharer or a holder of title in the property .
Petitioner needs to follow up the proceedings in his own suit and if he succeeds, the consequential events will automatically result and he will not be adversely affected in the proceedings of partition between the existing two owners of the property . It may be observed that for the determination of the issues arising in the suit for partition the presence of the petitioner is neither necessary nor proper . In this view of the matte r the learned Civil Judge rightly dismissed the application of the petitioner under Order I, Rule 10, C.P.C. and the learned Addl. District rightly declined to interfere in revisional jurisdiction.
10. For the reasons above, this writ petition is without substance which is accordingly dismissed .