1. The applicant in this Revision Petition has prayed that the judgment and decree passed by 1st Extra-Joint Civil Judge, Hyderabad, dated 1st August, 1978 and 20-8-1978 which was confirmed by IInd Additional District Judge, Hyderabad dismissing the Civil Appeal No. 331/1978 by judgment and decree dated 8-11-1980 be set aside.
2. The applicant/plaintiff filed the suit and prayed the following relief:---(a) Partition of the suit property according to the shares of the parties.
(b) Appointment of a Commissioner to effect -the partition by metes and bounds.
(c) Cost of the suit may be borne by the defendant.
(d) Any other relief this Honourable Court may deem fit and proper.
3. The case set forth by him is that he is transferee of C.S. No. 1097 and half of the common compound of C.S. No. 1096 situated at Nain Ka Pir, Hyderabad. The deceased husband of defendant was transferee of house No C/1098 and half of the compound of C/1096 situated at Nain Ka Pir, Hyderabad. In order to avoid suarrel amongst children the suit was filed with the above-quoted prayer. Written statement was filed. It was alleged that no cause of action arose. It was also alleged that the suit is not maintainable; it is improperly valued; that the case of plaintiff is self- contradictory; and the filing of suit was an extension of harassment. The defendant further maintained that a notice under section 30 of Displaced Persons Act was also issued wherein it was alleged by the plaintiff that the defendant is tenant. The Court framed the following issues:--
(1) Whether the plaintiff is the transferee of half of the C.S. No. C/1096, Hyderabad?
(2) Whether plaintiff is entitled to the half of common compound C/1096?
(3) Whether the Deputy Settlement Commissioner, Hyderabad transferred half of the C.S. No. C/1096 to -the plaintiff and one half to the defendant?
(4) Whether the plaintiff has got any cause of action?
(5) Whether the plaintiff is entitled to the relief claimed?
(6) Whether the suit is maintainable?
(7) Whether the suit is improperly valued insufficiently stamped?
(8) What should the decree be?
4. The learned trial Court decided Issue No. 1 in the negative, Issue No.2 in the negative, Issue No. 3 in the negative, issue No. 4 in the negative, Issue No. 5 in the negative, the trial Court held that the suit was not maintainable by answering Issue No. 6 and on Issue Nos. 7 the findings were given in negative and consequently, therefore, the suit was dismissed with costs. The learned First Appellate Court held that Issues Nos. 1 to 3 were rightly decided by the trial Court, Issues Nos.4 and 5 were decided against the appellant. The findings on Issue No. 6 did not call for any interference and in conclusion the appeal was dismissed.
5. This revision petition was admitted. The learned counsel for the appellant contended that C.S. No. 1096 was allotted to both the parties and they paid equal amount, therefore, there is co-ownership.
6. Once the co-ownership is established then it is the duty of the Court to partition the property. Since the Courts below did not partition the property, as such, they have abdicated their functions and by refusing to grant the relief and there is error apparent on the face of record.
7. As against such contention Mr. Sultan Ahmed Khan, learned counsel appearing for respondents contended that the property which was purchased through the Settlement Authorities could only be demarcated by the Settlement Authorities and not by the Court. He has relied upon the cases of Mian Muhammad Din v. Sh. Muhammad Ishaque Gaba (PLD 1965 (W.P.) Lah. 507) and Muhammad Bashir v Mst. Nasiran and another (1987 SCM R 999).
8. It is admitted position that the plaintiff was allotted C.S No. 1097 while the husband of defendant was allotted C.S. No. 1098. C.S. No. 1096 the disputed survey number in relation to which the suit was filed consist of courtyard and amenities of life such as bathroom, lavatory etc. Are situated in the suit plot and whether the said survey number could be partitioned? I find from the record that there is lack of evidence on the applicant's side, in other words it was indivisible property. Once the property could not be divided no prayer was made in terms of any of the sections of the Partition Act i.e. From section 2 to section 5, therefore, no exception could be taken to the judgment and decree of the trial Court and the first Appellate Court. In the citations relied by the learned counsel for the defendant (PLD 1965 (W.P.) Lah. 507) it has been held as follows;-- "It is not denied that the two houses in question are part of the same building and that they consist of more than one residential unit. It was, therefore, for the Chief Settlement Commissioner, or, a person acting under authority delegated by him, to decide whether they were to be one house or two. In the instant case, it is clear that the building was held to constitute two houses. For the purpose of coming to this conclusion it was, therefore, essential for the persons exercising the delegated authority to determine and demarcate the exact portion of the building which would constitute one house and the other would then automatically constitute the other house. It is, therefore, not correct to contend that the demarcation of the two houses was a duty not cast upon Officer of the Settlement Department under the Act. It needs no gain--saying that it is not an ethereal object which is transferred by the Settlement Department by virtue of the Provisional Transfer Order but a tangible thing in the shape of a house and unless the transferee knows what is actually being transferred to him the Settlement Authority would not be deemed to have performed its function in accordance with the Act. For this purpose it is the duty of the Settlement Authority to demarcate the property and to describe it in the Provisional Transfer Order with exactitude as has been done in the present case. "
9. Supreme Court of Pakistan has also held in 1987 SCM R 999 as follows:-- "In a recent decision by this Court in Maqbool Ahmed and another v. The Settlement and Rehabilitation Commissioner, Sargodha and another (PLD 1983 SC 337) it was observed that it is not correct that in all cases after the issuance of P.T.Ds. The Settlement Authorities become functua officio to make any type of demarcation because it would depend upon the circumstances of each case whether the Settlement Authorities were competent to demarcate/identify and clarify the position in regard to the property transferred to them.
10. We agree with the above enunciation. Normally the authority who transfers a property to a person is the proper authority to identify what property it is transferring to him. The Civil Courts, moreover, can only ascertain and declare the rights considered in the property to the contestants under the P.T.Ds. But cannot themselves embark upon the task of first identifying the property in regard to which the rights of the contestants are to be declared. Thus, unless it is certain as to what property has actually been transferred to a party the Civil Court may not be in a position to proceed with the task of adjudicating upon the further question with regard to the extent and limits of the rights acquired by a party when it is not certain as to what property has been transferred to him. "
11. Even otherwise the Trial Court as well as the First Appellate Court have given concurrent findings on the issues of fact. There is no illegality nor irregularity apparent on the fact of record which may be settled in the revisional jurisdiction, as such, no exception could be taken against the impugned orders.
12. Consequently, therefore, after hearing the parties I dismissed the revision application with no order as to costs.