MUHAMMAD RAMZAN vs Mst. AISHA and others

' MIAN SAQIB NISAR, J.---The appellant brought a suit for partition against the respondents with respect to the joint property bearing Khata No,101, Khatooni No,452, Kitha No,3, situated in the revenue estate, Chattani, Tehsil Mailsi, District Vehari measuring 120 kanals. In the plaint, the appellant claims to be the owner of the property to the extent of 6 kanals, 19 marlas and 6 sirsai and in suit the other co-sharers of the property, which are almost 122/123 in numbers, were impleaded as the defendants. The suit was contested by some of the defendants/respondents and a preliminary decree dated 8-3-2004 was passed by the learned trial Court, which has attained finality upto the learned High Court in Civil Revision No,971-D of 2004 vide judgment dated 27-9- 2005. Pursuant to the preliminary decree, the appellant moved to the Court for the partition to the extent of his share and passing of the final decree; and a local Commission in this regard was appointed by the Court; who suggested a mode of partition vide report submitted to the Court in that regard. The appellant did not challenge the report, but some of the respondents/defendants took up the objections to the same and such objections were discarded by the learned Civil Judge, seized of the matter and final decree was passed according to the local Commission's report. The appeal of the respondents/objectors also could not succeed. However, in the revisional jurisdiction before the learned High Court, the learned Court by setting aside the two decisions has remanded the matter to the Trial Court to decide the objections filed by the contesting respondents in accordance with law and to pass a fresh final decree. Learned counsel for the appellant has taken exception to the impugned judgment on the ground that the remand order is not justified as the entire record was available before the revisional Court and, therefore, the matter should be decided on the basis of such record. It is also argued, that the number of judgment debtors/defendants had never filed objections to the report of the local Commission and, therefore, they were disentitled to challenge the same, and in that regard even the revision petitioners before the learned High Court (contesting respondents) had not filed any objections before the learned trial Court. Moreover, the report of the Commission was absolutely inconsonance with the share of the appellant and most of the judgment debtors even did not bother to appear before the Commission for giving their point of view in regard to the mode of partition.

2. Having heard the learned counsel for the parties, we find that the proceedings conducted by the Commission for the partition of the property are inherently defective, for the reason that no notice had been issued to all the defendants/judgment debtors of the preliminary decree before finalizing the report; besides from the record, it transpires that the contesting respondents had filed objections to the report and those objections were/are not dealt with by the learned Court in accordance with law. These two vital aspects of the matter have been taken into account by the learned revisional Court while interfering with the decisions of the two Courts and remanding the matter. There is no misreading of the record or illegality in this context and we are not persuaded to interfere in the remand judgment of the learned High Court. Resultantly, this appeal has no merit and is, accordingly, dismissed. However, before parting it may be observed, that the learned counsel for the respondents have pointed out that the learned Civil Judge, seized of the matter, while passing the preliminary decree has not determined the shares of the parties in the joint holding and, therefore, on such account, the execution of the decree shall be impracticable, thus, such determination should first be made while proceeding in the course of the final decree for the partition. We have considered the preliminary decree passed by the learned Trial Court, which has attained finality upto the level of the learned High Court and find some obscurity in this behalf, but instead of interfering in the preliminary decree in our instant jurisdiction as suggested by the learned counsel for the respondents- we leave it open to the respondents, if so advised, to move an appropriate application before the Trial Court, in process of passing of the final decree to make appropriate adjudication about the shares of the parties to the suit i,e, by determining the exact share of the parties in the joint property (suit property) so that effective partition can be held and permanent decree should be passed pursuant thereto. As the matter is lingering since long, the learned Civil Judge, seized of the matter, shall finalize the same within a period of six months from the date of receipt of copy of this judgment.