Respondent was sent a post card notice for the date but has not turned up. It must have reached him as addressee. The service so made on him is sufficient. He is proceeded against exparte.
2. The Regular Second Appeal impugns the judgment/decree dated the 28th of July, 1966, passed by the learned Addl. District Judge, Layallpur, whereby the appellants-plaintiffs' first appeal was dismissed.
3. It was a suit for partition of the house in question bearing No. P-98, Ward No. 7, Faisalabad City, on an assertion that the two appellants-plaintiffs had 1/4th share each in it whereas the remaining 1/2 belonged to the respondent-defendant. The house belonged to an evacuee and the parties were its transferees in the above shares. The appellants stated that the respondent was occupying more than his due share and was trying to construct thereupon.
4. The respondent controverted the claim of the appellants denying join ownership. His stance, was that the Settlement Authorities had already partitioned it by giving designated shares marked respectively by letters `A', B' & `C' to each of the parties and that the same was final. He assailed the jurisdiction of the Civil Court in the matter pleading that section 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, precluded it in regard to the orders passed by the Settlement Authorities in their exclusive jurisdiction.
5. Appropriate issues arising out of these pleadings were framed. Both the Courts below concurrently held that the property was not joint between the parties, in that each one of them had been given a separate and designated portion denoted by letters `A', `B' & `C' and that the claim for partition of such exclusive portion would not lie.
6. In support of the R.S.A., attention was drawn to the three P.T.Ds (Exhs. P.8, P.9 and D.1) which, according to the learned counsel's reading gave only a fraction of the house to each of the three transferees. Exh: D. 1 gave 1/2 of the house P. 98/B), and Exh. P.9 gave 1/4th of the house P. 98/B and Exh P.9 gave 1/4th of the house (P.98/C) to the three transferees separately. The contention was that although there were three separate P.T.Ds., and that their respective portions were signified by separate letters `A', `B' & `C', yet the three transferee were given a specific fraction of the entire house, namely, 1/2, 1/4 and 1/4. It was! Emphasized that giving a fraction to three transferees was tantamount to making them joint owners of the entire house all the more when there was no evidence t show as to what portion was signified by the three letters 'A', `B' & `C'. The argument was quite plausible. Despite referring to letters `A', `B' & `C' in the context of the shares given to each of the transferees, their entitlement was A denoted by only fractions mentioned above. Thus, all of them were joint owner and the partition could not be avoided by merely stating that the respective fractions corresponded to letters `A', `B' & `C'. In his statement, the respondent Muhammad Shah tried to show that the so-called partition made by the Settlement Authorities was merely oral.
Obviously it would not do. A formal plan should have been approved and the respective portions should have been individually delineated for each one of them. Merely owning 1/4, 1/4 and 1/2 was intended for all purposes to express that the owners had conjointly held the house in accordance with those shares. The P.T.Ds were erroneously read by the lower appellate Court.
7. As a result, the R.S.A. Is allowed ex parte and the impugned judgment/decree are set aside.
Instead, a preliminary decree is passed holding that the two appellants each owned 1/4th m the house whereas the respondent owned the rest of 1/2. The case is remanded to the trial Court for passing a final decree in accordance with law. Parties to appear before it on the 27th of May 1989.
The record be sent to it well in lime.
H.B.T./M-1524/L