SAFDAR SALEEM SHAHID, J. The petitioner Abdul Haq has challenged the validity of judgments and decree dated 05.11.2015 passed by learned trial court as well as the judgment and decree dated 17.01,2017 passed by learned Addl. District Judge, Hasilpur, whereby suit of respondent No.1 Akram- ul-Haq for partition regarding the suit property as per report submitted on 19.10.2015 was decreed in his favour and against the petitioner.
2. Brief facts necessary for disposal of instant civil revision are that Abdul Haq petitioner filed the suit for declaration titled Abdul Haq v. Akram-ul-Haq etc. alleging therein that suit property is owned by the plaintiff-petitioner as well as defendants and has been privately partitioned between the parties. Through the instant suit, he prayed that their private partition be declared final.
3. Akram-ul-Haq respondent No.1 also filed suit for partition of the disputed property with the assertion that he along with Abdul Haq petitioner is joint owner of the disputed shop. He prayed that disputed shop be partitioned in accordance with law.
4. It is pertinent to mention here that vide order dated 1I.O5.2012 passed by learned trial court both the aforesaid suits were consolidated. The proceedings were conducted in the suit titled Akram- ul-Haq v. Abdul Haq. After recording of evidence of both the parties, learned trial court passed the preliminary decree with the following observations : "In view of my findings on the above said issues, both the suits of the plaintiffs are hereby partially/initially decreed in their favour to the extent of their ownership as per their respective determined shares in both the disputed properties of both the suits and to the extent of alleged family settlement/partition is hereby dismissed. Initial decree-sheet be prepared accordingly. To the extent of remaining claim of both the plaintiffs with regard to their possession according to their determined shares after legal partition over both the properties are hereby continued and both the parties are hereby directed to affix the requisite court fee Rs. 15000/- each as per rules and law in both the suits till the next date of hearing."
After passing of preliminary decree, learned trial Court vide order dated 28.03.2013 appointed Mr. Mushtaq Ahmad Advocate as local commission to suggest mode, in which, the suit property could be partitioned between Abdul Haq and Akram-ul-Haq, or, otherwise about its market value, in case, he finds it to be not partition able. On 04.10.2013 the said local commission submitted his report, wherein, he proposed that the suit property should be disposed of through action for not being partitionable. On the said report, objections were submitted by the petitioner as well as respondent No.l. During the pendency of objections, an application was submitted by the petitioner to conduct internal auction of the disputed property. Keeping in view the objections raised by the respondent No.1, vide order dated 17.07.2014 again appointed Mr. Mushtaq Ahmad Advocate as local commission who was directed to revisit the disputed property along with Overseer of Building Department (technical person) and ascertain whether disputed property is divisible or not. On 19.10.2015 the local commission submitted his 2nd report before the learned trial court. Respondent No.1 did not submit the objections on the 2nd report of local commission, however the petitioner filed objections on the report of said local commission which were declined by learned trial court vide order dated 04.11.2015. Vide judgment dated 05.11.2015 finally decreed the suit of respondent No.1 for partition and observed that property in dispute is to be partitioned between the parties to this suit as per report submitted on 19.10.2015. Being dissatisfied with the said judgment and decree of learned trial court, the petitioner filed civil appeal which was dismissed by learned Addl. District Judge Hasilpur and upheld the decision of learned trial court. Hence this civil revision.
Arguments heard. Record perused.
6. Partition suits are different in nature, than the Other civil suits. In partition suits only those parties are joined, who already had established their right of ownership in the property. They have certain different shares in the property. The main purpose of partition suit is to settle down the certain part/share of each sharer, according to their entitlement. So, the responsibility of court is to see, that nobody/share-holder be deprived in any way from his/her legal right. According to the Partition Act 1893, the court was empowered to appoint local commission to ascertain certain facts. This local commission was to be appointed under Order XXVI, Rule 1, C.P.C. which says:--
1. Cases in which Court may hum commission to examine witness.---Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it.
The court ascertains the power, jurisdiction and specific task of the local commission and it was purely discretion of the Court. The local commission, if submits that the property is partitionable, then it proposes the mode of the partition, the parties have right to file their objections, if not suits them, then the court has to decide these objections. If the commission submits, that the property is not partitionable, then the same was put to auction under the rules. The amended Punjab Partition of Immovable Property Act, 2012, also proposes, internal auction and external auction as required under sections 10 and 11 of said Act which reads:-
(10) Internal auction.-- If on the date fixed by the Court for the purpose, the co-owners fail to submit written agreement about partition of the immovable property through appointment of a referee or the referee is of opinion that the property is not partitionable or the Court finds that the proposal of the referee is in contravention of any law, the Court shall determine the reserve price of immovable property and direct sale of the property through internal auction on the next date of hearing.
11 (Open Auction)
"If the co-owners refuse to participate in the internal auction or only one co-owner shows his willingness to participate in such auction or the internal auction under section 10 has failed, the court shall fix the reserve price of the immovable property and direct open auction of the property.
In case of partitionable property, the court is bound to see that the proposed shares are equal in all respect. (i) that the valuation of the property is equal of each sharer, accordingly to his/her share.
(ii) Rights of easement are equally available to all sharers. (iii) All sharers have the equal opportunity to utilize theirs shares. (iv) The future aspect of each sharer is equal in all respect.
7. If the sharers, want to make improvement on their respective share it will neither affect the other sharers, nor there should be any hurdle or difficulty for any of the sharer. If objections are filed by the sharers, the court must settle these objections keeping in view the wisdom maintained in the 'Partition Act. The main purpose is to permanently settle the share of each sharer according to their entitlement. These proceedings should be processed speedily. The discretion of the court has been minimized in the amended Partition Act 2012, with the inclusion of the amendment regarding the appointment of referee. This suit for partition was filed under the Partition Act, 1893 and commission was also appointed under the provision of said Act. Second local commission was also appointed before the enactment of the provision of referee in Partition Act, 2012. So, the order of the court for the appointment of commission on 2nd time was valid and legal.
8. Admittedly the petitioner and respondent No.1 are real brothers. Record reveals that petitioner filed the suit for declaration alleging therein that suit property has been partitioned through family settlement 20-years ago, therefore, said private partition be declared final and the possession of the disputed property be handed over to the parties in accordance with the private partition. It has been noticed that respondent No.1 Akram-ul-Haq also filed the suit for partition contending therein that he along with Abdul Haq petitioner is joint owner of disputed shop and disputed property be partitioned in accordance with law. Both the aforesaid suits were consolidated and preliminary decree was passed by learned trial court vide judgment and decree dated 27.02.2013. In the preliminary decree, the learned trial court dismissed the claim of the petitioner to the extent of family settlement/partition, however, both the suits of the plaintiffs (petitioner and respondent No.1) were partially/ initially decreed in their favour to the extent of their ownership as per their respective determined shares in both the disputed properties of both the suits. Thereafter the learned trial court in the light of report of local commission dated 19.10.2015 passed the final decree for partition and observed that property in dispute is to be partitioned between the parties which was upheld by learned appellate court.
9. Contention of learned counsel for the petitioner was that in the first report the local commission proposed that the suit property should be disposed of through auction as the same was not partitionable. Respondent No.1 filed objections over the said report of local commission on the ground that no technical person was associated by the local commission at the time of preparing report whereas petitioner also filed the objections with the stance to conduct internal auction, otherwise, to conduct open auction. The petitioner also raised objection that in the light of amendment dated 05.01.2013 in the Punjab Partition of Immovable Property Act, 2012 the matter of partition of suit property be decided. Vide order dated 17.07.2014 learned trial court again appointed the same local commission who revisited the disputed property along with Overseer of Building Department (technical person). The said local commission submitted his report 2nd report wherein it was concluded by him that the disputed property was partitionable whereas Oversee Building Department (technical person) has submitted his independent report which is in contradiction with the report submitted by Mr. Mushtaq Ahmad Advocate, as he proposed auction of the suit property for having found it not partitionable. The objections were filed by the petitioner over the said report which were declined by learned trial court vide order dated 04.11.2015. The learned trial court while passing the impugned judgment and decree dated 05.11.2015 did not consider the objections raised by the petitioner and simply declined the objections without assigning any reason. Perusal of interim order dated 05.10.2015 passed by learned trial court reveals that on the said date (05.10.2015) the report of local commission was still awaited and a reminder was issued to Ch. Mushtaq Ahmad Advocate and to Overseer Building Department with the direction to appear in person along with their respective reports on the date fixed. The learned trial court also did not consider the report of Overseer Building Department (technical H person) wherein it was proposed by him that auction of the suit property for having found it not partitionable and his report is contrary to the report submitted by Mushtaq Ahmad Advocate.
Learned appellate court also did not consider this aspect of the matter and passed the impugned judgment without taking into consideration the objections raised by the petitioner; Both the, courts failed to appreciate the point that due to undividable partition, the value of the property in dispute as well as shares of the co-sharer would be diminished. The basic principles of natural justice and equity including Easement Rights of the parties I (co-sharers) attached with their respective owned properties/businesses was not considered in view of the Articles 4, 8, 9, 18, 23, 24 and 38 of the Constitution. Record reveals that the petitioner filed objections to the report but such objections were not dealt with by the learned trial court in accordance with law. Such vital aspects of the matter had not been taken into consideration by the learned appellate court. Reliance is placed on case law reported as Muhammad Ramzan v. Mst. Aisha and others (2014 SCMR 151). The court after considering objections, in the light of evidence was expected to determine if property could be partitioned and if not whether the same could be auctioned and also as to what were accounts.
The court had to grant relief in matter of recovery, settlement and adjustment of rent and income of joint property, but all those important aspects of the matter were not attended by both the courts below. Reliance is placed on case reported as Muhammad Ibrahim and others v.
Muhammad Ismail and others (2002 MLD 879, Lahore).
10. For what has been discussed above, instant civil revision is partly allowed and final judgments and decrees dated 05.11.2015 and 17.01.2017 passed by both the courts below are set aside. The case is remanded to learned Civil Judge who will decide the objections to the report of the Local Commission by allowing the parties opportunity of evidence and will pass a final decree after attending to the questions noted supra and also in the light of the observation made hereinabove.
However, the preliminary decree is not disturbed. No order as to costs.