' This civil revision under section 115 of the Code of Civil Procedure was directed against the order dated 22nd January, 1991, whereby the learned Civil Judge passed the following direction: "...In this view of the matter for the time being the replication dated 27-7-1987 filed on 29-7-1987 is struck off. The plaintiffs may submit a new replication keeping them salve within the four corners of the original claim in their plaint. However, they may adopt proper course to attack the alleged gift in favour of defendant by predecessor-in-interest. Accordingly issues No,2 and 3 are also struck off which arose from the replication and issue No,4 is re-cast as follow: "Issue No, 4: ' What are the respective shares of the parties to the suit in the property in dispute ? O.P. Parties?
2. The factual background in which this order came to be passed is that the petitioners-plaintiffs filed a suit for partition against the defendant claiming partition of bungalow No,63-C/1, Gulberg-III, Lahore, with the averments that the said property belonged to the father of the parties and as such they are entitled their respective Sharai shares and that a decree for partition of the bungalow be passed dividing the bungalow according to the respective shares and in case the property in question is found to be indivisible the same should be disposed of and the sale proceeds be divided among the parties according to their respective shares. The defendant-respondent in her written statement raised preliminary objections inter alia asserting that the deceased father at the time of his death had got no right, title or interest in and possession of the suit property, which had already vested in, stood transferred and conveyed to, and devolved upon her to the total exclusion of the plaintiffs by way of gift and she continues to hold and possess the same as absolute owner, and as such the suit for partition deserves dismissal. It was further averred that the suit is neither maintainable nor competent in its present mode and form and that the plaintiffs have got no locus standi to bring the suit. On merits the gift was set up so as to exclude the petitioners-plaintiffs from claiming any right in the property in question. The learned Civil Judge directed the plaintiffs to file replication which was accordingly filed wherein not only the factum of gift but also its validity and legality were challenged. The learned Civil Judge framed the following issues arising out of the pleadings of the parties:--
(1) Whether the suit is not maintainable in its present form ? OPD.
(2) Whether Altaf Hussain Bukhari, predecessor-in-interest of the parties had given the property in dispute to the defendant, to the exclusion of the plaintiffs, by way of gift ? OPD.
(3) If issue No, 2 is proved in affirmative, whether the gift was made by deceased (Altaf Hussain Bukhari) in Marz-ul-Maut and is, therefore, of no legal effect ? OPP
(4) If issues Nos,2 and 3 are answered in favour of the plaintiffs, then what are respective shares of the parties to the suit, in the property in dispute ? O.P. Parties.
(5) Relief.
(6) The defendant was then directed to produce her evidence first as she had set up the gift so as to exclude the plaintiffs to claim any right in the property in dispute. The defendant-respondent on the date fixed for evidence submitted an application under Order VI, rule 16 and Order XIV, Rule 5, C.P.C. Seeking rejection of the replication and for striking off issues 2 and 3. This application was resisted by the plaintiffs but the learned Civil Judge after hearing the learned counsel for the respondent-defendant passed the impugned order dated 22-1-1991. The grievance of the petitioners is that the request for adjournment submitted by the learned counsel for personal reasons was not granted and the impugned order was passed without hearing learned counsel for the petitioners-plaintiffs.
3. The basis for rejection of the replication would appear from the following observations of the learned Civil Judge:- "...A perusal of the contents of the plaint and that of replication would lead us to the conclusion that primarily it was the claim of the plaintiffs that property in dispute was jointly owned by the plaintiffs as also the defendant, but in replication new facts are introduced through which the validity of alleged gift in favour of defendant/applicant is being challenged. It may be true, that this fact, for the first time came to the knowledge of the plaintiffs/respondents after submission of the written statement on behalf of the applicant/defendant, nevertheless if the plaintiffs/respondents thought it proper that this .Fact was against their rights then proper course should have been adopted and amendment should have been sought in their plaint to attack the alleged gift in a proper way. It is not to he ignored that replication is a supplement of plaint and always supposed to clarify such ambiguities which are left in plaint or are pointed out by the defendant in his written statement.
However, it is never the intention that through replication a new case is presented without prior permission or amendment of plaint."
4. Learned counsel for the respondent in opposition of the revision petition submitted that in a partition suit the question whether any alienation was made or not can be determined but the validity thereof cannot be gone into by the Court. He added that a party desirous of determination of the question of validity of a transaction should file a suit for declaration and partition or a suit first for declaration and title and cancellation of the document and thereafter a suit for partition. He argued that necessary conditions for suit for partition are that (i) there must be unity of title and (ii) unity of possession, and in the absence of these two preconditions the suit for partition is not maintainable. According to him on disclosure of the factum of gift statedly made by the predecessor-in-interest of the parties in the written statement the plaintiffs should have sought amendment of the plaint so as to challenge the gift and that without seeking the amendment, validity of the said gift cannot be challenged by adding such a plea in the replication. Learned counsel in support of his aforenoted pleas relied on -Zamani Begum v. Fazal-ur-Rehman (AIR 1943 Lah. 241), Muhammad Sarwar v. Abdul Lateef (PLD 1978 Lah. 391), and Muddasar Hussain v. Mst.
Kaniz Fatima (PLD 1986 Lah. 140).
' Learned counsel for the petitioners on the other hand submitted that the suit filed by the petitioners-plaintiffs was a partition suit and not an administration suit and that the learned Civil Judge having himself directed the petitioners-plaintiffs to file the replication could not have rejected the same on the basis that the plea as to the non-existence as well as invalidity of the gift could not be taken in the replication as such a plea can only be taken by seeking amendment of the plaint.
5. I have considered the respective submissions of the parties. The precedents cited by the learned counsel for the respondent may be noticed first. In Zamani Begun' case (AIR 1943 Lah. 241) the observation recorded reads as under:-- "It is open to the Court to determine in an administration suit whether certain alienations were or were not in fact made by the deceased. It is, however, not open to the Court in an administration suit to determine the validity of any alienations made by him."
' Similarly in the Karachi case of Muhammad Younus Qureshi v. Feroz Qureshi (1982 CLC 976) it was observed that object of an administration snit is to determine assets of deceased at the time of his death and in such a suit title and claim by an heir in his own independent right cannot be decided.
In the case of Muhammad Sarwar (PLD 1978 Lah. 391) it was held by a learned Single Judge of this Court that the validity of gift set up by the defendant cannot be determined in an administration suit. The question as to what is an `administration suit' has been answered by the Supreme Court in the case of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi (PLD 1962 SC 291) as under:- "In a suit for administration the relief to be granted is that the estate. Of the deceased is to be administered under the decree of Court. This means that the Court will assume the functions of an administrator, it will realize the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it."
' It was further observed that "for distributing the assets the Court has to find out who the persons entitled are and therefore it will be proper to join in the suit all those persons who claim to be so entitled. This being the nature of an administration suit the question of title to the property claimed by any heir in his own independent right cannot be decided, as obviously the object of an administration suit is to determine the estate of deceased at the time of his death." It is because of this reason that the question of title to property claimed by an heir in his own independent right is to be got settled by initiating independent proceedings and not in an administration suit.
6. But the present suit admittedly is not an administration suit. It is a partition suit. The precedents relied upon by the learned counsel for the respondent are, therefore, not directly in point. What is a partition suit and what relief is granted by a Court in a partition suit? Partition is the division made between several persons of a joint property which belongs to them as co-proprietors so that each may become the sole owner of the part which is allotted to him. The true character of partition is that it converts joint enjoyment into enjoyment severally. By partition a co-sharer or a co- proprietor gets a separate allotment by virtue of his antecedent title as co-sharer. There is thus no acquisition of property in another independent right. It is not a conveyance; it is not an exchange.
The separate allotment is not obtained by another independent title. So in a suit for partition each co-proprietor is allocated share in the property by dividing it as per entitlement and in case property is indivisible sale proceeds are divided amongst co-proprietors according to their respective shares. The observations made by Das, J. In the Full Bench judgment (Wajihunnissa v.
Bankebehari Singh (AIR 1930 Pat. 177), may appropriately be quoted at this stage:-- "It is well-settled that the necessary conditions for a suit for partition are: first, that there must be unity of title; and, secondly, there must be unity of possession."
' The learned Judge in the case did not allow the suit for partition to be converted into a suit for title observing that if these persons have any rights in the disputed properties they will no doubt assert their rights in a properly instituted suit. It is, therefore, apparent that unity of title and unity of possession must exist between the parties impleaded in the suit for partition qua the property sought to be partitioned. It any one impleaded in the suit claims a paramount title in the property, obviously he is negating unity of title and as such the plea falls outside the scope of a partition suit.
The reliance of the learned counsel on the general observations of the learned Judge of the Bombay High Court in the case of Muiji Narotam v. Hiralal Ramchandra (AIR 1929 Born. 424) to the effect that "Courts (in Bombay Presidency) should settle all disputes arising out of a partition suit in one litigation and should not leave the parties to have their rights determined piecemeal at different times by different suits and perhaps by different Courts" is not apt as no paramount title was set up in the said case. The plea taken in the case was of adverse possession of the properties.
Such pleas undoubtedly, it is well-settled, have to be determined in a partition suit.
' Learned counsel for the respondent also relied on the case of Annapurna Debya v. Amiya Nath Banerjee (AIR 1922 Cal. 307). In this case scope of a suit for partition was examined and it was observed that "in a suit for partition it is incumbent upon the Court before preliminary decree is made to determine whether the properties included in the suit are joint properties, as alleged, of the parties to the litigation. A question can be raised and tried in a partition suit though its solution interests only some of the parties to the litigation. In suits for partition questions may and do frequently arise which interests only some of the parties. A suit for partition may and does often involve the investigation of disputed questions of title and an attempt to avoid them, can only lead to needless multiplicity of litigation. The Court has ample authority to direct successive trial of the issues separately affecting different defendants and even to record interlocutory judgments thereon so as to be made the basis of the final judgment at the conclusion of the trial of the whole case." Despite these general observations Mookerjee, J. The author of the judgment made particular observation at page 311 of the report:-- "We need not discuss whether an adverse claimant, who has no community of interest with the parties to the suit, is in no view a co-tenant with them, but stands out on his own independent right and denies all rights in his adversaries, who can be. Drawn into a partition suit for decision of the question of title paramount."
' After making consciously the aforesaid observations it was observed:-- "But in any view, the principle appears to us to be undoubtedly sound that where there is a conflicting claim to share in the land under the Same right under which partition is sought, the determination of the conflict is in sidereal to the partition and cannot he avoided before partition is directed. Such a case does not fall within the category of claims utterly hostile where each demands not a share but the whole,"
' It is, therefore, apparent that this judgment does not in any manner help the petitioners-plaintiffs, rather it supports the pica of the learned counsel for the respondent that in a partition suit all persons who have an interest in the partition are proper parties and matters in controversy amongst persons so interested under the same right in the partition must be decided in the suit.
The case of Annapurna Debya v, Amiya Nath Banerjee (supra) came to be considered in a Madras case reported as R. Nilakanta Iyer v. Ramanarayana Iyer (AIR 1949 Mad. 410). In this case in a suit for partition amongst sisters, besides impleading brothers, father, mother and sisters as defendants, the plaintiff impleaded sister's husband as one of the defendants on the ground that in certain leases title vested in the family and that the husband of one of the sisters was a merely Benamidar.
The pleadings further showed that the husband of the sister claimed paramount title in the property. It was held that the suit was bad for misjoinder of parties and misjoinder of causes of action. It was observed that the claim against the sister's husband could not be tacked on to a general suit for partition. The claim to the leases was not based under the same right under which the partition was sought, hence the suit was bad for misjoinder of parties and misjoinder of causes of action. The principle deducible from the afore noted precedents is that the prerequisites of a partition suit are (i) unity of title and (ii) unity of possession. From 'unity of possession' it is not to be inferred that a co-proprietor out of possession cannot maintain suit for partition or that a plea of title through adverse possession set up cannot be gone into and determined. The principle pointed out in the Calcutta case (AIR 1922 Cal. 307) is that where there is a conflicting claim to a share in the property under the same right under which the parties sought the determination of the conflict is incidental to the partition and cannot be avoided before partition is directed. But where claim of title paramount is put forward by an adversary in a partition suit then the said question cannot be gone into unless the plaint is amended and the suit is converted into a suit for declaration and title or cancellation of the deed relied upon for claiming title paramount and thereafter for partition of the share so claimed. In this view of the matter the learned trial Court was right in upholding the objection and rejecting the replication. He was also right in observing that replication is a supplement of plaint and is also supposed to clarify such ambiguities which are left in the plaint or are pointed out by the defendant in his written statement and that altogether new case cannot be allowed to be presented in a replication as there will be no opportunity for the defendant to controvert such a new case set up in the replication. It may be observed that when in a partition suit paramount title is set up it is desirable to require the plaintiff to amend the plaint so as to challenge the existence, validity or legality of the alienation on the basis of which exclusive title is pleaded and to convert the suit into a suit for declaration of title or cancellation of the alienation and for partition. It is not necessary to stay the proceedings in the partition suit until an action at law has been tried and determined as the powers of Courts of law and of equity are exercised by the Civil Courts in this country. Even now it will be open to the petitioners-plaintiffs as offered by the learned counsel for the respondent-defendant and as alluded to by the learned trial Court in the impugned order to suitably amend the plaint by seeking permission of the Court.
' Subject to this observation and for the reasons given above no justifiable exception can be taken to the impugned order. The revision petition, therefore, fails and is dismissed. The parties are, however left to bear their own costs.
Revision .