Partition Suits and Its Methodology

PARTITION SUITS AND ITS METHODOLOGY IN PAKISTAN

In the Courts of Pakistan, a huge number of partition suits are pending adjudication. Currently, there is no proper mechanism within the revenue hierarchy, revenue department, or other law-enforcing institutions to effect the partition of properties without constraining the owners to approach the Courts of law.

The difference of opinion and “ill-unionship” is a natural thing in society. Normally, people cannot survive in a joint venture; to live an independent life or utilize property in their own manner, they are constrained to divide their properties through the course of law.

The Legal Framework of Partition

Partition is recognized by the legal maxim “Nemo in Communione potest invitus detineri”—no one can be kept in co-proprietorship against his will. Partition is merely an arrangement whereby co-sharers (شریک کھاتہ دار) having undivided interest in joint properties take specific properties in lieu of their shares.

For partition suits, property is divided into three types:

1. Pure Agricultural Properties: Relief is sought from the Revenue Officer under Chapter XI, Section 135 of the West Pakistan Land Revenue Act 1967.
2. Agricultural and Constructed Mixed Properties: If the major portion is agricultural, Revenue Courts are approached; otherwise, relief is obtained from Ordinary Civil Courts.
3. Pure Constructed Properties: (Houses, shops, markets, etc.) Divided by ordinary Civil Courts through a Suit for Partition under the Partition Act, 1893.

PRE-CAUTIONS IN PARTITION SUITS (احتیاطی تدابیر)

1. Jurisdiction (دائرہ اختیار)

The case must be filed in the appropriate Court. Territorial jurisdiction is determined by Sections 16, 17, and 18 of the Civil Procedure Code (CPC).

• Agricultural Land: Jurisdiction regarding partition of agricultural property and granting relief lies with the Revenue Court (2012 SCMR 695, Qamar Sultan Vs Mst. Bibi Sufaidan).
• Bar of Civil Jurisdiction: Under S. 172 of the West Pakistan Land Revenue Act, 1967, the jurisdiction of the Civil Court is barred unless the land loses its agricultural character and becomes a building site or commercial area (2008 PLD 97 Peshawar, Sher Ahmad Khan Vs Sardar Khan).
• Nature of Property: Whether land is covered by Abadi or is exclusively agricultural is a spot-related question determined by the Trial Court via a local commission.
• Application to Revenue Officer: A party interested in partition must apply to a Revenue Officer as per S. 135 of the Land Revenue Act, 1967 (2012 CLC 1353 Quetta, Jamal ud Din Vs Haji Gul Khan).
• Title Disputes: The Revenue Officer can determine the question of title himself or refer the matter to a Civil Court (2002 CLC 739 SC AJK, Muhammad Yousaf Khan Vs Board of Revenue).
• Administrative Role: A Revenue Officer acts as a Revenue Officer, not as a Revenue or Civil Court, when deciding the mode of partition (2012 PLD 241 Karachi, Mst. Farzana Vs Mst. Sehti).

1. Parties (فریقین)

All co-sharers in the joint properties must be arrayed as parties to avoid the plea of non-joinder.

• Order I Rule 9, CPC: No suit shall be defeated by reason of mis-joinder or non-joinder. The Court is empowered to implead necessary persons (2013 MLD 708 Baluchistan, Syed Ain Ullah vs Dilber).
• Determination of Rights: The Court can deal with the matter in controversy regarding the rights of the parties actually before it (2007 MLD 508 Karachi, Muhammad Younas Sheikh Vs Corex Enterprises).
• Additional Supporting Citations: 2011 YLR 1999 Quetta, 2011 SCMR 1460, 2010 MLD 1596 Quetta, and 2007 SCMR 729.

III. Full Partition vs. Partial Partition

A suit for Partial Partition is not maintainable. A co-owner must seek the partition of the landed property as a whole (PLD 2009 Supreme Court 198, Noor Muhammad Vs Allah Ditta).

• Pick and Choose: A party is not permitted to select valuable parts of the joint holdings while leaving out less valuable portions (2006 YLR 2289 Lahore, Ghulam Rasool Vs Muhammad Khalid).
• Entire Holding: Partition cannot be affected without including the entire land of the property (1999 YLR 2190 Lahore, Chaudhary Ghulam Abbas Vs Barkat Ali).

1. Prior Partition or Private Settlement (خنگی تقسیم)

A suit must involve properties where no prior regular partition or Private Settlement (Khangi Taqseem) has been made.

• Sanctity of Contract: Private arrangements deserve the same sanctity as a lawful contract and should not be interfered with unless legally impermissible (2007 PLD 421 Karachi, Irshad Vs Ashiq Hussain).
• Possession as Evidence: In the absence of a formal partition deed, the question of possession assumes critical significance in proving private partition (2006 YLR 2341 Lahore, Naveed Ahmad Vs Iqbal Begum).

1. Co-Sharership

The claimant must establish they are a co-sharer.

• Distribution of Possession: Possession cannot be distributed until a lawful partition is made (2012 YLR 809 High Court AJK, Gulzar Begum Vs Mehboob Hussain).
• Right to Alienate: A co-sharer in possession has a right to alienate a specific piece of land, and the transferee acquires the same rights as the transferor (2010 CLC 285 Lahore, Abdul Ghaffar Vs Waqas Hafeez).
• No Limitation: Partition can be claimed during the currency of joint ownership without any limitation period, provided the right is not denied (2004 SCMR 1036, Muhammad Rafiq).
• Injunctions: A suit for permanent injunction against other co-sharers is not maintainable except by bringing a suit for partition (2004 MLD 1844 Lahore, Ashiq Hussain Vs Prof. Muhammad Aslam).

TRIAL OF PARTITION BY CIVIL COURT

Civil Courts bifurcate the claim into two rounds:

(A) First Round: Preliminary Decree

The Trial Court checks jurisdiction, entitlement/co-sharership, and merits. If the case is made out, the Court determines the specific shares of the parties.

(B) Second Round: Final Decree Proceedings

1. Local Commission: The Court appoints a commission under Section 75 read with Order 26 CPC to determine the mode of partition.
2. Indivisible Property: Under S. 2 of the Partition Act, 1893, if a property cannot be partitioned by metes and bounds, it may be sold and proceeds distributed (2010 MLD 784 Karachi, Iqbal Ahmad Vs Mst. Aziz Bano).
3. Right to Buy: Once a preliminary decree is passed, if a property is indivisible, the Court resorts to S. 3 of the Partition Act, 1893. Co-sharers have the opportunity to buy out other shares before the property is auctioned (2008 CLC 248 Lahore, Firdous Begum Vs Mst. Salamat Bibi).
4. Execution: Following the confirmation of the commission report, a Final Decree is passed, followed by an execution application.

PROCEDURE IN REVENUE COURTS (AGRICULTURAL PROPERTY)

Proceedings for agricultural land partition are summary and not governed by the CPC (PLD 2009 SC 198). Under Section 142 of the Land Revenue Act, 1967, the Revenue Officer holds an inquiry to prepare:

• Naqsha Alif (نقشہ الف): Shows the shares of the parties.
• Naqsha Bay (نقشہ ب): Proposes the mode of partition (Batwar/بٹوار) and curves out Tatimmaas.
• Naqsha Jeem (نقشہ ج): Shows the proposal for the partition mutation (Judai/جدائی).

Stamp Paper Requirement: A decree of partition is an “instrument of partition” and must be engrossed on stamp paper to be executable (2005 PLD 972 SC, Khawaja Muhammad Arif Vs Mrs. Tahira Asif). Private Partition (S. 147): A private partition of agricultural property has no legal effect until affirmed by the Revenue Officer under Section 147 of the Land Revenue Act, 1967. Mere entry of partition mutation is insufficient without a formal inquiry and instrument of partition (2012 PLD 151 Peshawar, Syed Musarrat Shah Vs Syed Ahmed Shah).

RIGHTS AND REMEDIES OF CO-SHARERS

• Remedies for Dispossession: A co-sharer ousted by another can file a Suit for Partition or a suit under S. 9 of the Specific Relief Act, 1877 (2009 SCMR 688, Contractor Haji Muhammad Alam Vs Shaukat Sultan; 2004 YLR 322 Lahore).
• Bar on Section 8: A regular suit under Section 8 of the Specific Relief Act is not maintainable for co-sharers; the remedy must be partition or Section 9 (2006 YLR 1071, Muhammad Riaz Vs Mumtaz Ali).
• Mesne Profit: A co-owner excluded from possession is entitled to claim profits/rent from the person in unlawful occupation (2007 CLC 621 Karachi, Muhammad Anwar Vs Dr. Gohar Ali).
• Shamilat Property: Unless Shamilat Deh land is partitioned by metes and bounds by Revenue Authorities, no specific share can be declared in the possession of any landowner (2009 CLC 899 SC AJK, Barkat Ali Vs Sultan Mehmood).
• Possession Rights: Every co-owner is considered in possession of each inch of un-partitioned land (2007 SCMR 1884 SC, Syed Shabir Hussain Shah Vs Asghar Hussain Shah).
• Unauthorized Construction: No co-sharer can change the character of joint land (e.g., raising construction) without the consent of others or lawful partition (2004 YLR 1136 Lahore, Ghulam Rasool Vs Umar Hayat).
• Adjustment of Transfer: Any transfer out of a joint khata is always subject to the final adjustment of partition (2007 YLR 1756 Lahore, Munawar Hussain Vs Amanat Ali).