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Regular First Appeal No. 20 of 1983, decided on 9th May, 1987.

---S. 54--Partition, suit for--Plaintiff claiming entitlement to 7/48th share in joint property and asserting to be in possession of property to the extent of her own share, filing suit against other co-sharers for separation of her own share from joint property--Defendants, neither in their written statements nor at any stage of the suit, claiming partition of their own respective share in the property- Preliminary decree and subsequent final decree passed in favour of plaintiff against defendants for separate possession through partition of 7/48th share of immovable property, held, were valid and no grievance could be made that final decree should have been passed after separating the share of each individual shareholders.

Choudhry Khurshid Ahmad for Appellants

Muhammad Ramzan Khokhar for Respondent No. 1.

Abdullah Anwar Beg for Respondents Nos. 17, 18 and 46.

Abdul Wakeel Butt for the remaining Respondents.

Date of hearing: 9th May, 1987.

.-- Facts necessary for decision of this appeal are stated below:-

Mst. Sardar Begum on 21st October, 1957, filed a suit forts separation of her share in the joint property against her brothers Meraj Din, Feroze Din, her sister Mst, Zainab Bibi and -her mother Mst. Mohammad Bibi and others.

It was pleaded by Mst. Sardar Begum that she, being daughter of Rahim Bakhsh deceased, was entitled to 7/48th share in his immovable property described in Para 2 of the plaint. She claimed to he in possession of the property to the, extent of her own share as co-sharer. The learned Administrative Civil Judge, Gujranwala, vide judgment dated 1st February, 1960 passed preliminary decree in favour of Mst. Sardar Begum in the following terms: -

"I pass a preliminary decree with costs in favour of the plaintiff against the defendants for separate possession through partition of 7/48th share of the immovable property, other than agricultural land, mentioned in para 2 of the plaint. I appoint Syed Azhar Hussain Zaidi, Advocate, for carrying out the actual partition as above. Rs.120 as commission fee shall be deposited by the plaintiff and defendants 1 and 2 proportionately to their shares within a week. If one party does not deposit the share of the fee the others may do it. Commission report to be filed in court on 12-3-1960. I also pass a decree with costs in favour of the plaintiff for joint possession of 7/48th share of agricultural land mentioned in para 2 of the plaint."

2. Meraj Din challenged the preliminary decree through Regular First Appeal No. 37 of 1960 which was dismissed by a Division Bench of this Court vide judgment dated 9th September, 1969. It is stated by the learned counsel for the appellants at the Bar that the appeal of Meraj Din in Supreme Court was dismissed as having been withdrawn. The case was taken up by learned Senior Civil Judge, Gujranwala, who appointed a commission "to visit the spot and partition the property in accordance with this decree." The Local Commissioner reported "that every property presents a complicated situation and is impartible." The learned Senior Civil Judge vide impugned judgment dated 17th January, 1983, passed final decree in favour of the Plaintiff. It was observed that the Senior Civil Judge had granted a decree for separate possession through partition of 7/48th share of the immovable property other than agricultural land mentioned in para. 2 of the plaint. He disagreed with the contention that each property shall have to be partitioned lie, therefore, directed that the plaintiff be given 7/48th share of the total property in dispute in a suitable manner, finalising the preliminary decree.

3. In support of this appeal, it is contended on behalf of the appellants firstly, that if in preliminary decree, shares of co-sharers are determined, then the court while passing the final decree is bound to separate the respective shares of all the co-sharers; secondly, that the final decree passed on 17th January, 1983 was beyond the preliminary decree dated 1st February, 1960: and thirdly, that all the share-holders have a right to partition of the property to the extent of their respective shares.

4. We have considered the above contentions.

The appellants 1 to 14 are legal heirs of Mst. Sardar Begum appellants 15 to 23 are legal heirs of Meraj Din defendant No.l. according to the preliminary decree as well as final decree, the legal heirs of Mst. Sardar Begum were allowed 7/48th share in the total Property of Rahim Bakhsh deceased. It was admitted at the Bar by arned counsel for the appellants that at the time of institution of I he suit, Mst. Sardar Begum was in possession of 7/48th share of total property. It is, however, submitted that she was dispossessed I 10m the said property after passing of the preliminary decree in her favour. In our view, Mst. Sardar Begum has no grievance at all in this appeal. She claimed to be in possession of her 7/48th share in the disputed property at the time of institution of suit. The decree was passed in her favour to the extent of her share. If she was dispossessed after passing of the decree, she can, as held in the impugned order, recover possession through execution.

So far as the appeal on behalf of appellants 15 to 23 (legal heirs of Meraj Din defendant No.l) is concerned, it may be observed that suit by Mst. Sardar Begum was not for partition of the entire property. The suit was for possession by separation of her 7/48^th share only. This would mean that the remaining property was to remain joint. We are not inclined to agree with the learned counsel that the final decree should have been passed separating the share of each shareholder because, firstly, the defendants never claimed partition of their share in their written statement; secondly, they never made any application requesting the lower court before passing of the final decree to partition their respective shares as well; and finally, the suit was only for separation of 7/48th share of Mst. Sardar Begum plaintiff. We, therefore, find no merits in the contentions on behalf of these appellants.

We have carefully gone through the preliminary decree. The lower Court passed the final decree in accordance with the preliminary decree dated 1st February, 1960. There was no variation between the two decrees.

5. In view of the above discussion, we find no merits in this appeal which is accordingly dismissed leaving the parties to bear their own costs.

K.B.A./M-262/L. Appeal dismissed.

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