ABDUL HAQ vs AKRAM-UL-HAQ S — 2022 PLD 766 LAHORE-HIGH-COURT-LAHORE

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ABDUL HAQ VS AKRAM-UL-HAQ S. 4---Nature of proceeding---Duty of Court---Scope---Partition suits were different from the other civil suits as in partition suits parties had already established their right of ownership in the property---Main purpose of partition suit was to settle down the certain part/share of each sharer, according to their entitlement---Civil Court was responsible to see that nobody/share-holder be deprived in any way from his/her legal right. Preamble---Essential considerations for passing a decree for partition of partitionable property---Court, in case of partitionable property, is bound to see that the proposed shares are equal in all respect: (i) Valuation of the property is equal of each sharer, accordingly to his/her share. (ii) Right of easement are equally available to all sharers. (iii) All sharers have the equal opportunity to utilize theirs shares. (iv) The future aspect of each sharer is equal in all respect. Preamble---Main purpose of enactment was to permanently settle the share of each sharer according to their entitlement---Such proceedings were to be processed speedily. S. 10---Civil Procedure Code (V of 1908), O. XXVI, R. 1---Private partition---Internal auction---Suit for declaration/partition---Privately partitioned property between the parties was prayed to be declared final---Respondent/plaintiff also filed a suit for partition of the disputed shop asserting that he and the petitioner were joint owners of the said shop and that the same shop be partitioned---Suit was concurrently decreed---Local Commission submitted his report proposing that the suit property was not partitionable and the same should be disposed of through auction---Both parties objected to the said report and Trial Court called for second report which was not objected to by the respondent but petitioner filed objections thereon which were declined by the Court---Trial Court decreed suit observing that the suit property was to be partitioned as per second report of the Local Commission---Petitioner filed appeal which was dismissed by the District Court---Validity---Second local commission was also appointed before the enactment of the provision of referee in Partition Act, 2012, therefore, the order of the Trial Court for the appointment of commission on second time was valid and legal---Admittedly, the suit property had been partitioned through family settlement 20 years ago, therefore, said private partition be declared final and the possession of the disputed property be handed over to the parties in accordance with the private partition---Report of local commission showed the disputed property as partitionable whereas Oversee Building Department (technical person) had submitted his independent report proposing the auction of the suit property for having found it not partitionable---Trial Court had not considered the objections raised by the petitioner and simply declined the objections without assigning any reason---Trial Court also did not consider the report of Overseer Building Department (technical person)---Courts below failed to appreciate the point that due to undividable partition, the value of the property in dispute and shares of the co-sharer would be diminished---Principles of natural justice/equity including easement rights were not considered in view of the Arts. 4, 8, 9, 18, 23, 24 & 38 of the Constitution---High Court allowed revision petition and remanded the matter to Trial Court to decide the objections to the report of Local Commission.

ABDUL HAQ vs AKRAM-UL-HAQ S — 2022 PLD 766 LAHORE-HIGH-COURT-LAHORE

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