2015 C L C 1833
[Balochistan]
Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ
KHURSHID ASHRAF and 3 others ----Appellants
Versus
AFTAB ASHRAF and another ----Respondents
Regular First Appeal No.65 of 2013 and Civil Miscellaneous Appeal No.5 of 2013, decided on
29th June, 2015.
(a) Partition Act (IV of 1893) ---
----S. 4---Civil Procedure Code (V of 1908), O. VII, R.11 & S.11 ---Suit for partition ---Res
judicata, principle of ---Applicability ---Plaint, rejection of ---Scope ---Second suit for partition was
instituted after decree of previous suit which was dismissed under O.VII, R.11, C.P.C. ---
Validity ---Previous suit for partition was proceeded on merits and was decreed ---No execution
proceedings were initiated for enforcement of said judg ment and decree within the prescribed
period of limitation, judgment and decree passed in the previous suit, therefore, was not
enforceable ---Plaintiff had prayed for partition of suit property according to his share ---Suit
property was still joint between the parties ---No previous decree for partition existed in favour of
one of the plaintiffs ---Trial Court had erred in facts as well as law while dismissing the present
suit---Impugned order passed by the Trial Court was set aside and case was remanded for
decision on merits in accordance with law ---Appeal was accepted in circumstances.
Santan Narian v. Saran Narian AIR 1959 PATNA 331 ref.
Allah Dawaya v. Additional District Judge 2002 SCMR 1183; Muhammad Saleem v.
Rashid Ahmed 2004 SCMR 1144; State Ba nk of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280;
Shariq Saeed v. Mansoob Ali Khan 2010 YLR 1647 and Riaz Ahmed v. Punjab Textbook Board
2006 SCMR 867 distinguished.
Abdul Majid v. Mahmudabi, AIR (36) 1949 Nagpur 366; Bazlur Rahman v. Syed Ali
PLD 1967 D acca 809 and Habibur Rahman v. Abdul Rahman 1987 CLC 195 rel.
(b) Limitation Act (IX of 1908) ---
----Art. 181 ----Civil Procedure Code (V of 1908), S. 48 ---Execution petition ---Limitation ---First
application for execution of a decree would be governed by the residuary Art.181 of Limitation
Act, 1908 and rest of the applications made thereafter would be governed by six years time limit
prescribed by S.48, C.P.C. ---Effect of S.48, C.P.C. was to provide limitation for subsequent
execution petitions after the first one ---In case no execution application was made within the
period as prescribed by Art.181 of Limitation Act, 1908 then the execution petition made
thereafter would be barred under the said Article and there would be no occasion to avail of the
benefits of the extended period by S.48, C.P.C. ---Once an application for execution was made
within time so prescribed then any number of applications for execution could be presented
within six years period from the date of decree.
Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 rel.
Mumtaz Hussain Baqri and Sabira Islam for Appellants (in R.F.A. No.65 of 2013).
Ghulam Ali Raza for Respondent No.1 (in R.F.A. No.65 of 2013).
Saleem Baloch, Addl. A. -G. for Respondent No.2 (in R.F.A. No.65 of 2013).
Mumtaz Hussain Baqri and Sabira Islam for Appellants (in Civil Miscellaneous Appeal
No.5 of 2 013).
Ghulam Ali Raza for Respondent No.1 (in Civil Miscellaneous Appeal No.5 of 2013).
Saleem Baloch, Addl. A. -G. for Respondent No.2 (in Civil Miscellaneous Appeal No.5 of
2013).
Date of hearing: 24th June, 2015.
JUDGMENT
NAEEM AKHTAR AFGHA N, J. --- This common judgment disposes of Civil
Miscellaneous Appeal No.5/2013 and RFA No.65/2013 as both relate to Bungalow No.4 -15/217
falling under Khewat No.33, Khatooni No.54, Khasra No.2 Qitas, Measuring 13917 sq.ft. in
Mahal and Mouza Ward No.31, Ta ppa Urban, Tehsil City, District Quetta (hereinafter "the
disputed property").
2. Civil Misc. Appeal No.5/2013 has been filed by the appellants (plaintiffs) under Order XLIII,
Rule 1(r), C.P.C. against the order dated 27 -2-2013 (hereinafter "the impugned order") passed by
learned Judicial Magistrate -IX/Civil Judge, Quetta, (hereinafter "the trial Court"), whereby
application under Order XXXIX, Rules 1 and 2, C.P.C. filed by the appellants in Civil Suit
No.72/2012 has been dismissed and the interim injunct ion order dated 7 -12-2012 has been
vacated.
3. RFA No.65/2013 has been filed under section 96, C.P.C. by the appellants (plaintiffs) against
the order dated 27 -6-2013 (hereinafter "the impugned order") passed by learned Judicial
Magistrate -IX/Civil Judge , Quetta, (hereinafter "the trial Court") whereby Civil Suit No.72/2012
filed by the appellants for partition, possession and permanent injunction in respect of the
disputed property against the respondents (defendants) was dismissed on the basis of the
application filed by respondent No.1 under Order VII, Rule 11, C.P.C.
4. Facts of the case are that initially Civil Suit No.11/1994 was filed by appellants Nos.2 to 4
against respondent No.1 and appellant No.1 for partition, possession and mesne profit in respect
of the disputed property.
The said suit was contested by respondent No.1 as well as appellant No.1. After framing issues
and recording evidence of the parties, the suit was decreed vide judgment and decree dated 30 -5-
1996 in the following terms:
"Keeping in view the above results of material issues the suit is allowed and a decree for
partition and possession is passed and this is declared that the plaintiffs are entitled for 96
shares out of 224 shares. The each plaintiff is entitled for 32 sha res. If the property is not
partitionable then the defendants are directed to mutually and with consent of plaintiffs
assess the total value of the whole property and pay the amount in cash equallant [sic] to
96/224 the plaintiffs so that plaintiffs be abl e to get their due with right/ share as per
Islamic Law. The executing court can also appoint a Local commissioner to examine the
property for partition to be extent of 96/224 and put the plaintiffs in their respective
charges or assess the value of the sh ares of plaintiffs. Decree sheet be drawn. File be
consigned to record after completion. "
5. The respondent No.1 and appellant No.1 filed RFA No.15/1996 before this Court which was
dismissed vide judgment and decree dated 19 -8-1997.
6. The respondent No.1 and appellant No.1 filed Civil Petition No.227 -Q/97 before the Hon'ble
Supreme Court, which was also dismissed vide judgment dated 25 -9-1998.
7. Subsequent to the above, no execution proceedings were initiated by the appellants Nos.2 to 4
for execut ing the decree of partition.
8. On 7 -12-2012 the appellants again filed Civil Suit No.72/2012 (subject -matter of the instant
appeals) for partition, possession and permanent injunction against respondent No.1 in respect of
the disputed property. In the e arlier Suit No.11 of 1994 the appellant No.1 was arrayed as
defendant No.1 and had contested that suit jointly with respondent No.1 but in the second Suit
No.72/2012, the appellant No.1 has joined the appellants Nos. 2 to 4 as plaintiff No.1.
9. It has b een contended in Civil Suit No.72/2012 that the appellants are joint owners of the
disputed property according to their shares as per revenue record; that the predecessor of parties
namely Ashraf Ali having 56 shares in the disputed property had expired on 23-8-1993 and his
share has also devolved upon the appellants and respondent No.1; that the disputed property is
still joint amongst appellants and respondent No.1; that no partition of the disputed property has
been effected between the parties; that bei ng joint owners, the appellants have interest in every
inch of the disputed property and are deemed to be in possession of the disputed property
according to their share unless the same is partitioned by metes and bounds; that the appellants
demanded for p artition of the disputed property and separation of their share but same was
avoided and delayed by respondent No.1; that a legal notice was also served upon respondent
No.1 in the year 1992 but the same was not responded nor partition was effected; that a ppellants
Nos.2 to 4 were constrained to file suit for partition, possession and mesne profit against
respondent No.1 as well as appellant No.1 which was decreed by learned Civil Judge -I, Quetta,
on 30 -5-1996; that appeals preferred by respondent No.1 and appellant No.1 were dismissed up
to the Hon'ble Supreme Court; that the respondent No.1 is in occupation of whole of the disputed
property and despite judgments up to the Hon'ble Supreme Court, the respondent No.1 has
prolonged the matter for partition; th at the appellant No.1 is resident of Masqat (Oman) while
appellants Nos. 2 to 4 are permanently residing at Karachi and due to their non -presence at
Quetta, the partition proceedings could not be finalized while the respondent No.1 is still
avoiding partit ion of the disputed property; that cause of action for partition of disputed property
being joint property is recurring and still subsists. Following prayer was made in the suit.
"(a) Preliminary decree may be passed directing defendant No.2 to enter mut ation of
inheritance of deceased predecessor in interest of parties namely Ashraf Ali son of
Abdullah Asghar Ali to the extent of his 56 shares out of total 224 shares in suit property,
and to enter same in favor of plaintiffs and defendant No.1 according to shariat, and
afterwards to make partition of suit property bearing Khewat No.33 Khatooni No.54
Khasra No.2 Qitas measuring 13917 sq.fts situated in ward No.31, Tappa Urban, Tehsil
City, District Quetta between plaintiffs and defendant No.1 in metes and bounds, and to
put each share holder in possession of his respective shares;
(b) After that final decree may be passed confirming partition between plaintiffs and
defendant No.1;
(c) Through permanent injunction defendants may be restrained from aliena ting, passing
possession to others or from making changes in revenue record;
(d) Any other relief deemed fit in the circumstances may also be awarded to plaintiffs."
10. Along with Suit No.72/2012 the appellants also filed an application under Order XXXIX,
Rules 1 and 2, C.P.C. for grant of temporary injunction, which was granted on 7 -12-2012 by the
trial court to the effect that the respondent No.1 was restrained from alienating, delivering
possession to others or creating any third party interest in the disputed property in any manner.
11. The Suit No.72/2012 was contested by respondent No.1 by filing written statement. While
raising preliminary legal objections, respondent No.1 stated that the suit is hit by section 11 of
C.P.C. as the matter has already been decided between the same parties up to the Hon'ble
Supreme Court; that the suit has been filed with mala fide to grab some financial benefits; that
appropriate court -fee has not been affixed upon the plaint; that suit has been filed for teasin g and
persecution of respondent No.1; that the appellants have no locus standi to file the suit; that the
appellants have concealed material facts from the Court.
It was further contended that there were two houses i.e. the disputed property in Quetta an d the
other house worth fifteen crores in Muhammad Ali Society Karachi; that besides, there were
stocks worth three crores, antiques worth two crores and gold jewelry worth crores to be divided
between the appellants and respondent No.1; that the appellant s with mala fide, illegally sold the
house of Karachi and divided the proceeds amongst themselves and they did the same with stock,
antiques and jewelry as well.
12. Upon merits, it was contended by respondent No.1 that despite the earlier suit being dec reed
in favour of appellants Nos.2 to 4, they have failed to file an execution application for
implementation of the decree and after their failure to get the execution of the decree, the
appellants have filed second suit to cover the flaws of the said dec ree; that no cause of action has
arisen to the appellants against respondent No.1 for filing the suit.
13. The respondent No.1 also contested the application under Order XXXIX, Rules 1 and 2,
C.P.C. by filing reply.
14. After filing written statement, the respondent No.1 filed an application under Order VII, Rule
11, C.P.C. for dismissal of the suit in view of section 11, C.P.C. on the ground that in view of
judgment and decree passed in the earlier suit, the instant suit is not maintainable.
15. The said application was contested by the appellants by filing reply. It was contended by the
appellants that the disputed property is still joint between the parties; that cause of action in
respect of the disputed property is recurring till its partition in metes and bounds; that despite
persuasion in view of earlier judgments passed up to the Hon'ble Supreme Court, the respondent
No.1 lingered on the partition with mala fide; that the suit filed by the appellants is not hit by
section 11, C.P.C. that an exem ption exits for the suit for partition, dissolution of marriage and
eviction application against tenant for personal bona fide need. It was prayed that application be
dismissed and suit be decided on merits.
16. After hearing arguments on the application under Order XXXIX, Rules 1 and 2, C.P.C, the
trial court dismissed the application for interim injunction vide impugned order and vacated the
earlier interim injunction order on the ground that the suit filed by the appellants is hit by section
11, C.P.C. and that the appellants have no prima facie case in their favour.
17. After hearing arguments on the application under Order VII, Rule 11, C.P.C. read with
section 11, C.P.C., the trial Court accepted the same vide impugned order and dismissed the suit
filed by the appellants. The operating portion of the impugned order reads as follows:
"After going through the above referred reported cases I am of the opinion that the
circumstances of the instant suit are entirely different from the above referred ca ses. In all
the above referred reported cases it has been held that the cause of action for partition is a
continuous cause of action and a suit for partition could not be hit by section 11, C.P.C.
unless and until the share of each and every share holder is not adjudicated but in the
instant case the shares of all the shares holders have properly been adjudicated and the
decision of the trial court was up held to the level of Supreme Court of Pakistan and the
appeals filed by the defendant No.1 were dismis sed, then it was duty of plaintiffs that
they might have filed an execution application before the executing court for partition
and separation of shares of each share holder but they did not do so since the order of
Hon'ble Supreme Court of Pakistan on 25 -9-1998 until filing of the instant suit for re -
partition of the suit property. After hearing the learned counsel for the plaintiffs -
respondents I am of the considered opinion that circumstance of the above referred
reported cases are entirely different fr om the instant suit. No doubt a cause of action for
partition is a continuous and recurring cause of action and any share holder may institute
a suit for adjudication of his share irrespect of provisions of section 11 and law of
Limitation but after adjudi cation of rights of a share holder they are not entitled to file a
fresh suit due to non -filing of execution petition.
10. Apart from reference to the above cited judgments the learned counsel for the
plaintiffs -respondents also made reference to the max im Ubi Jus ebi remedium which
means that where there is a right there is a remedy, the plaintiffs -respondents by decretal
of the former suit in their favour have availed the remedy and it was their own job to have
filed the execution petition, but they hav e not done so. Thus I do not agree with the
counsel for the plaintiffs -respondents that the plaintiffs -respondents have not been
remedied.
11. For the foregoing reasons I hold that section 11 does apply to the plaintiffs' suit,
hence the suit brought by the plaintiffs is not maintainable in view of Order VII, rule 11,
C.P.C. read with section 11, C.P.C. The application of the applicant -defendant No.1 is
allowed and suit of the plaintiffs -respondents is dismissed."
18. While arguing RFA No.65/2013 learne d counsel for the appellants stated that while passing
the impugned order and holding Suit No.72/2012 as not maintainable under Order VII, Rule 11,
C.P.C. the trial court has failed to appreciate that the judgment and decree for partition of the
disputed p roperty passed in Civil Suit No.11/94 was not executed and the disputed property is
still joint amongst the parties and has not been partitioned till date; that decree for partition
passed in the previous suit filed by appellant Nos.2 to 4 does not operate as res judicata nor the
second suit is hit by section 11, C.P.C.; that the cause of action in suit for partition is recurring.
Learned counsel relied upon the case of Santan Narian v. Saran Narian, AIR 1959 PATNA 331.
19. While arguing Civil Misc. App eal No.5/2013 learned counsel for the appellant stated that the
disputed property is still joint amongst the parties and same has not yet been partitioned; that the
respondent No.1 is physically in possession of the disputed property and there is` apprehen sion
that the respondent No.1 may alienate, dispose of the property or create any third party interest to
frustrate the partition of the same as demanded by the appellants; that while rejecting the
application for interim injunction the trial court has bad ly failed to appreciate that the appellants
have a prima facie case, balance of convenience lies in favour of the appellants and if the interim
injunction is not granted the same will cause irreparable loss to the appellants and will also give
rise to mult iplicity of litigation.
20. Learned counsel for respondent No.1 while arguing RFA No.65/2013 stated that the matter
with regard to partition of the disputed property has already been decided on merits by the
competent courts and the subsequent suit is ba rred under section 11, C.P.C. and is hit by
principle of res judicata; that the matter which has already been decided on merits and having
attained finality cannot be brought before the court again by filing a fresh suit; that the impugned
order passed by the trial court is not suffering from any illegality or irregularity warranting
interference by this Court.
Learned counsel relied upon the cases of Allah Dawaya v. Additional District Judge, 2002
SCMR 1183, Muhammad Saleem v. Rashid Ahmed, 2004 SCMR 114 4, State Bank of Pakistan
v. Imtiaz Ali Khan, 2012 SCMR 280, Shariq Saeed v. Mansoob Ali Khan, 2010 YLR 1647 and
Riaz Ahmed v. Punjab Textbook Board, 2006 SCMR 867.
21. While arguing Civil Misc. Appeal No.5/2013 learned counsel for the respondent stated that
since the suit filed by the appellants was hit by section 11, C.P.C. and was not maintainable
therefore, the appellants have no prima facie case for grant of interim injunction and the trial
court has rightly dismissed the application for interim inju nction; that the impugned order passed
by the trial court is not suffering from any illegality or irregularity.
22. Heard the learned counsel and perused the available record. Admittedly the previously
instituted Suit No.11/1994 filed by the appellant No s.2 to 4 against respondent No.1 and
appellant No.1 was proceeded on merits and was decreed by the trial court in favour of
appellants Nos.2 to 4 vide judgment and decree dated 30 -5-1996, which was upheld by this
Court in RFA No.15/1996 as well as by the H on'ble Supreme Court while dismissing Civil
Petition No.227 -Q/1997. Admittedly no execution proceedings were initiated by appellants
Nos.2 to 4 for enforcement of the judgment and decree dated 30 -5-1996 for partition of the
disputed property within the pre scribed period of limitation.
23. It is to be appreciated that the first application for execution of a decree is governed by the
residuary Article 181 of the Limitation Act, 1908 and the rest of the applications made thereafter
are governed by the six y ear time limit prescribed by section 48, C.P.C. The effect of section 48,
C.P.C. is to provide limitation for subsequent execution applications after the first one. In case
no execution application at all is made within the period prescribed by Article 181 of the
Limitation Act, the execution application made thereafter would be barred under the said Article
and there would be no occasion to avail of the benefits of the extended time provided by section
48, C.P.C. In other words once an application for exec ution is made within time so prescribed,
any number of applications for execution can be presented within the six year period from the
date of decree. Reliance in this regard is placed on the case of Mahboob Khan v. Hassan Khan
Durrani, PLD 1990 SC 778.
24. In view of the above, the judgment and decree dated 30 -5-1996 is not enforceable as no
execution application for the same was filed by appellants Nos.2 to 4 within the prescribed
period.
25. In the second Suit No.72/2012 the appellant No.1, who had e arlier contested Suit No.11/1994
as defendant No.1, has joined appellants Nos.2 to 4 as plaintiff No.1 and has expressed his
grievance with regard to conduct of respondent No.1 for not partitioning the disputed property
and has prayed for partition of the same according to his share. No previous decree for partition
exists in favour of appellant No.1. The contents of the plaint of civil suit No.72/2012 reveal that
the disputed property is still joint amongst the parties. The same has not yet been partitione d with
metes and bounds and still exists jointly in the revenue record as well in the name of the parties
and their predecessor.
26. In the referred case of "Santan Narain" it was held as follows: ---
"There can be no doubt, therefore, that the previous partition final decree never became
effective and partition was not actually brought to completion. That being the possession,
it seems to me that the plaintiff was entitled to bring a fresh suit for partition...
. The claim for partition is a recurring cause of action and unless the division of the joint
property has been brought to completion by actual delivery of allotments, each party has
got right to claim fresh partition of the land, and that right is not lost......
...... A co -sharer has got a r ight to seek fresh partition if for some reason, the previous
decree for partition becomes unenforceable so that there has not been actually breaking
up of the title and possession of the co -sharer by actual delivery to each of them of the
specific portion of the joint property allotted to him by that decree."
In the case of Abdul Majid v. Mahmudabi, AIR (36) 1949 Nagpur 366 it has been held as
follows: ---
"Where the plaintiff after instituting a suit for partition decides not to enforce the right
immed iately, a fresh suit for partition by the same plaintiff and of the same property, is
not barred under O.XXIII, R. 1(3), as the cause of action for a suit for partition is a
recurring one. "
In the case of Bazlur Rahman v. Syed Ali, PLD 1967 Dacca 809 it has been held as follows: ---
"As there is always a recurring cause of action for a suit for partition, such a suit can be
brought even after the abatement of a previous partition suit."
In the case of Habibur Rahman v. Abdul Rahman, 1987 CLC 195 it ha s been held that "a suit for
partition was never hit by doctrine of res judicata or even by limitation as it was a continuing
cause of action."
27. In view of the above, it is concluded as follows: ---
(a) that when a decree declaring a right to partiti on has not been given effect to by the
parties and the property is not partitioned according to the decree, it is competent for the
parties or any of them, if they still continue to be interested in the joint property, to bring
another suit for a declarati on of right to a partition in case their right to partition is called
in question at a time when, by reason of limitation or otherwise, they cannot put into
effect the decree first obtained;
(b) that the suit for partition differs from other suits. So lo ng as the property is jointly
held, so long does a right to partition to continue;
(c) that cause of action for a suit for partition is a recurring one particularly when the
disputed property is still joint amongst shareholders, when no change has been made with
regard to possession of the same and when the previous decree for partition has proved to
be infructuous being not enforceable through execution proceedings;
(d) that a suit for partition is never hit by doctrine of res judicata or even by limi tation as
it is a continuing cause of action;
(e) that cause of action for a suit for partition is always recurring, therefore, such a suit
can be brought even after the abatement of a previous partition suit.
28. In view of the above it transpires tha t the trial Court has badly erred in facts as well as law
while dismissing Civil Suit No.72 of 2012 rejecting the plaint under Order VII, Rule 11, C.P.C.
holding the same hit by section 11, C.P.C. Apart from, the trial Court has also failed to
appreciate t hat the appellants were having a prima facie case for grant of interim injunction.
29. The cases relied upon by learned counsel for respondent No.1 are distinguishable and are not
attracted to the facts and circumstances of the instant case.
In the ref erred case of "Allah Dawaya", in the previous suit the question of gift as well as claim
of petitioners with regard to inheritance of deceased was agitated and duly determined by finding
them not entitled to any share out of inheritance of deceased and in the subsequent suit again
legal share was claimed out of inheritance which was held hit by principle of res judicata.
In the referred case of "Muhammad Saleem", issue relating to ownership and title in respect of
suit land was finally heard and decided b y competent court of law and such issue raised in
subsequent suit was held to be hit by principle of res judicata under section 11, C.P.C.
In the referred case of "Shariq Saeed", the marriage of the plaintiff was not solemnized with
defendant No.2; the m atter was not amicably resolved; in the family suit filed by defendant No.2
the pre -trial failed and Khulla was granted; the father of defendant No.2 communicated the
offending contents of the plaint containing allegations of scandalous nature amongst rela tives,
friends and colleagues of the plaintiff; legal notice was issued to the defendants; that the plaintiff
was kept in wrongful custody and illegal confinement and was subjected to assault whereafter he
filed suit for damages during pendency of which an application under Order VII, Rule 11, C.P.C.
was filed by the defendants on the ground that the FIR registered by the plaintiff was quashed
and in this regard petition filed by the plaintiff before the Supreme Court was dismissed and it
was prayed that pl aint be rejected. The said application was held not maintainable and was
dismissed accordingly.
In the referred case of "Riaz Ahmed", the matter of removal from service of the petitioner had
already attained finality on account of dismissal of his CPSLA by the Supreme Court and the
petitioner was precluded, by the principle of res judicata, from re -agitating the same matter by
filing a writ petition only because some other officials of the board had been re -employed.
30. For the above reasons RFA No.65/ 2013 and Civil Miscellaneous Appeal No.5/2013 are
accepted with no order as to cost, the impugned orders dated 27 -2-2013 and 27 -6-2013 passed by
learned Judicial Magistrate -IX/Civil Judge, Quetta are set aside and the suit is remanded to the
trial court fo r deciding the same on merits in accordance with law. In the meanwhile the
respondent No.1 is restrained from alienating the disputed property and from creating any third
party interest in the disputed property till final decision of the suit. Decree sheet be drawn
separately in RFA No.65/2013.
ZC/82/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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