' This is a revision petition by one of the defendants and arises out of a partition suit filed by the plaintiffs-respondents. The facts of the case as given by the learned counsel for the petitioner and gathered from the record may briefly be noted.
2. Mian Noor Muhammad, the predecessor-in-interest of the petitioner, and Mian Manhe Khalifa the predecessor-in-interest of the respondents entered into an agreement of association in respect of the property in dispute ,11 -1959 (Exh.D5) thereby 1/4th share in the said property was to go to the predecessor-in-interest of the respondents while the remaining 3/4th was to go to the predecessor-in-interest of the petitioner. This 1/4th was also specified in this. Agreement of association as a shop and a room over it. The P.T.O., was issued on 30-11-1959 followed by the PTD (Exh.D7) whereby the agreement of association was given effect to.
3. The predecessor of the respondents filed an appeal before the learned Additional Settlement Commissioner challenging the agreement of association and the orders passed by the Settlement Authorities. His appeal was dismissed vide his order, dated 29-10-1961 (Exh.D8). His revision petition was dismissed by the learned Settlement Commissioner vide order, dated 17-11-1963. He then approached this Court in Writ Petition No,273 which was dismissed on 23-12-1963. His L.P.A. Was dismissed on 12-12-1964 by this Court and his petition for leave to appeal was dismissed by the Hon'ble Supreme Court on 26-1-1966. The agreement of association and the orders passed by the Settlement Authorities were upheld.
4. Not satisfied with the out-come of this litigation, the predecessor-in-interest of respondents filed a suit for declaration assailing the agreement of association. This suit was contested and tried and ultimately dismissed on 8-3-1981 (Exh.D10). An appeal was taken against the said judgment and decree which was dismissed on 6-6-1981. The matter was not further agitated.
5. . The present suit for partition was filed by the respondents on 17-1-1982. Vide judgment and decree, dated 20-7-1989 their suit was dismissed. They took an appeal before the learned District Court which was allowed vide judgment and decree, dated 4-7-1992 and a preliminary decree was passed according to which the respondents were held entitled to 1/4th share of the property while the defendants was held to be entitled to the remaining 3/4th.
6. The only controversy between the parties is as to whether the agreement of association had already partitioned the property.
7. The learned counsel for the petitioner has contended that the agreement of association clearly partitioned the property in dispute in preasenti and the finding of the learned Additional District Judge that the property was to be partitioned is patently a misinterpretation of the agreement of association. He also relied on the Permanent Transfer Deed which clearly recited that the property was being transferred in accordance with the agreement of association.
8. On the other hand, the learned counsel for the respondents contends that according to the PTD while petitioner's predecessor was entitled to 3/4th in the property in dispute, the predecessor of the respondents was entitled to 1/4th and that the respondents were in possession of muchless area then 1/4th of the total property. According to him, the learned First Appellate Court has rightly interpreted the agreement of association and the P.T.D.
9. I have considered the submissions made by learned counsel for the parties. The fate of this case depends on the interpretation of the agreement of association and the Permanent Transfer Deed.
10. As far as the P.T.D. Is concerned, the following order was passed: "Above noted house has been transferred to Mian Manhe Khalifa and Mian Noor Muhammad as above order. According to the agreement of association deed, dated 30-11-1959 1/4th share to Mian Manhe Khalifa and 3/4th to Mian Noor Muhammad."
11. According to the finding of the learned trial Court the shop in possession of the respondent Abdul Latif was in the Main Bazzar. Reliance was also placed on the circular letter, dated 13-2-1960 of the Chief Settlement Commissioner according to which the property to be shared by the transferee and the associating claimant will be decided by mutual agreement. It was further noted that Noor Muhammad entered possession of 3/4th share of the property and had reconstructed it at huge cost. Abdul Latif respondent has been in possession of his share of the property and has been carrying out repairs to the room over the shop. The learned Trial Court reached the conclusion that the said property stood petitioned. J2. While reversing the judgment and decree, of the learned Trial Court, the learned First Appellate Court held that the respondents were entitled to 1/4th while petitioner's predecessor was entitled to 3/4th in the disputed property and further that at the time of partition the shop and the room over it were to go to Abdul Latif respondent as part of 1/4th share in the property. The learned First Appellate Court was also of the view that there were inconsistencies in the agreement of association and, therefore, according to the rules of interpretation of the documents, the division in the proportion of 1/4th and 3/4th had to prevail.
13. A careful perusal of the agreement of association shows that the parties mutually divided the property in preasentie. One part of this agreement contemplates that the predecessor of the respondents had to get 1/4th while petitioner's predecessor had to get 3/4th in the said property. In the second portion of the agreement of association it was clearly contemplated that the property was divided in the manner that in lieu of 1/4th, the shop in possession of Abdul Latif and a room over it went to the share of the predecessor of the respondents and the remaining house was to remain with petitioner's predecessor. The following expressions in this agreement of association leave no manner of doubt that the parties devided the property through this agreement; {{URDU TEXT}} (Underlining is mine). It was further provided as follows: {{URDU TEXT}} (Underlining is mine).
14. 1/4th share which went to the predecessor-in-interest of the respondents was clearly specified with a covenant that rest of the house will remain with petitioner's predecessor. It was further agreed that the parties will be responsible for the repairs of their portions of the house, will receive the rent of their respective portions had that the parties will not have anything to do with the share of other. It is, therefore, difficult to subscribe to the view taken by the learned First Appellate Court that it contemplated a partition in future in such a manner that the shop and the room transferred to the predecessor of the respondents will be taken into account at the time of partition. Had the parties agreed only to share the property in the ratio of 3/4th and 1/4th the covenants underlined by me appearing in the second portion of the agreement would not have found any mention therein.
15. A perusal of the order passed on the Permanent Deed also clearly indicates that the property was transferred in accordance with the agreement of association. This means that even the division agreed to by the parties was accepted by the Settlement Authorities. It was in accordance with the circular letter of the Chief Settlement Commissioner, dated 13-2-1960 according to which division of the property was to be decided by the transferee and the associating claimant with mutual consent. This division could be in the terms of shares as well as the specific property. In this case, the agreement of association not only divided the property in the shares but also clearly identified the specific property. It may also be stated that in his statement recorded before the Settlement Authorities (Exh.D1) the predecessor of the respondents had clearly stated that he wanted to retain the portion in which the shop falls.
16. The Courts are there only to enforce a contract made by the parties and cannot make one on behalf of the parties or modify it as has been done by the learned Additional District Judge.
17. It may also be observed that initially, the predecessor of the respondents and then the respondents themselves never accepted the agreement and wanted to wriggle out of it, firstly, by initiating litigation before the Settlement Authorities which went upto the Hon'ble Supreme Court and then before the Civil Court but remained unsuccessful. The present suit was yet another attempt by the respondents to wriggle out from the agreement of association by claiming more than to what their predecessor-in-interest had expressly agreed to retain to himself and to surrender to petitioner's predecessor the rest of the property.
18. One aspect of the matter needs to be attended to. Mian Noor Muhammad had left behind a widow, four sons including the petitioner and two daughters. All of them were defendants in the suit and in the appeal before the learned District Court. This revision petition is by one son of the deceased Noor Muhammad while his legal heirs have not been implehded. The question that attracted my attention was as to what decree is to be passed. None of the learned counsel addressed this Court on this question.
19. Under Rule 4 of the Order XLI of the Code of Civil Procedure, one of the defendants could claim reversal of the whole decree when it proceeds on any ground common to all the plaintiffs or to all the defendants and the Court can reverse or vary the decree even to the extent of non-appealing party. However, all the parties should be before the Court. However, the provisions of Rule 33 of the Order XLI of the Code of Civil Procedure confer much wider powers and a decree favourable to the non-appealing defendant can be passed.
20. The scope of powers under Rule 33 of the Order XLI of the Code of Civil Procedure came under consideration of the Hon'ble Supreme Court in Central Government of Pakistan and others v.
Suleman Khan and others (PLD 1992 SC 590), North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others (PLD 1993 SC 418), Faqir Muhammad and others v. Mst. Muhammad Bibi and others (PLD 1991 SC 590), Matloob Khan and others v. Land Acquisition Collector and others (PLD 1989 SC 510), Hakim Muhammad Nabi Khan and 2 others v. Warasat Ullah through Legal Representatives (1987 SCM R 1698) and M/s. S.M. Yusuf & Bros. v. Mirza Muhammad Mehdi Pooya, and another (PLD 1965 SC 15) and it was noted that the provisions of Rule 33 were of widest amplitude and the Court can pass any decree or order which the circumstances so warrant.
21. The petitioner and the non-appealing defendants had common interest and the appellate decree is one of partition. It is not possible to partly maintain it to the extent of the non-appealing defendants. In that case there will be two conflicting decrees of this Court. One, dismissing the suit of the respondents while the other maintaining the decree. This course will not only create complications, but will be patently unjust.
22. Accordingly, this revision petition is allowed, the impugned judgment and the decree of the learned First Appellate Court is set aside as a whole and the suit filed by the respondents is dismissed with costs throughout.