IN THE COURT OF MR.
MUHAMMAD TARIQ,
CIVIL JUDGE, MULTAN.
1. Muhammad Jawad Shah S/o Muhammad Shah, 180/90180
shares, measuring 6 Marlas.
2. Tanzeel-ur-Rehman, 180 shares 600/90180 shares
3. Ateeq-ur-Rehman, 210 shares measuring 1 Kanal
both sons of Syed Safdar Hussain Shah, minors through their
real brother petitioner No. 4 as their guardian ad-litem.
4. Zia-ur-Rehman S/o Syed Safdar Hussain Shah, 210 shares
5. Mst. Bilqees Bibi W/o Syed Maqbool Ahmad Shah,
570/90180 shares, measuring 19 Marlas.
6. Mst. Azra Parveen 1/8 share widow of Ameer Shah
7. Kashif Ali Shah, sons of share
8. Atif Ali Shah, 17/24 shares 2075/90180
Measuring 3K—9M—5Y
Total area of all the sharers: 5K—14M—5Y
All Bukhari by caste, residents of Mauza Kotla Waris Shah,
Octroi Post No. 1, Suraj Miani Road, Multan.
……PETITIONERS
VERSUS
1. Mst. Sahista Bibi wife of Syed Imdad Hussain Shah,
deceased, represented by her legal heirs: -
1-A. Syed Imdad Hussain Shah---husband
1-B. Syed Adnan Shah
1-C. Syed Aadil Shah sons
1-D. Mst. Laila Bibi
1-E. Mst. Sonia Bibi daughters
All Bukhari by caste, R/o H. No. 182 Chah Bohar Wala, Sher
Shah Road, Multan.
2. Mst. Faiz Ilahi widow of
3. Syed Maqbool Hussain Shah
4. Syed Shakeel Hussain Shah sons
5. Syed Jameel Hussain Shah Syed
6. Mst. Haseena Bibi Ayyub
7. Mst. Shamim Bibi Shah
8. Mst. Tasawwar Bibi daughters
9. Mst. Suryya Bibi
10. Mst. Aisha Bibi
All Bukhari by caste, R/o Mauza Kotla Waris Shah, Suraj
Miani Road, Multan.
11. Mst. Rukhsana Bibi daughter of Mst. Sakina Bibi (deceased)
daughter of Syed Ayyub Shah.
12. Asghar Shah husband of Mst. Amna Bibi (deceased) daughter
of Syed Ayyub Shah.
13. Qaswar Hussain Shah Syed Asghar Shah
14. Arshad Hussain Shah sons of Bukhari by caste,
15. Amjad Hussain Shah R/o Mauza Kotla
16. Mst. Shaheen Bibi daughters of Waris Shah, Suraj
17. Mst. Samina Bibi Miani Road, Multan.
…RESPONDENTS
Application under section 12 (2) C.P.C.
for setting aside preliminary decree dated
10.4.2001 passed by Ch. Rasheed Ahmad
learned Civil Judge Ist Class, Multan, in
civil suit No. 279/1997 captioned as Mst.
Shaista Bibi Vs. Mst. Faiz Ilahi etc. a suit
for possession by way of partition.
Sir, The humble petitioners respectfully submit as under: -
1. That petitioners No. 2 & 3 are minors and they are legally
unable to pursue this case independently, therefore, their real
brother Zia-ur-Rehman petitioner No. 4 is being appointed as
their guardian ad-litem during this suit whose interest is not at
par with that of minors.
1-A. That respondent No. 1 has since been died, her legal heirs are
being impleaded as respondents No. 1-A to 1-E by the order
of the court dated 24.5.2003.
2. That immovable property consisting of constructed portions
and open plots comprising of Khata No. 1 in black ink & 1 in
red ink, Khatooni No. 1 & 3, Qitat 14 total shares 90180, total
area of Khata 150K—6M located in Mauza Kotla Waris Shah,
Octroi No. 1, Multan and Khata No. 400/394, Khatooni No.
483, Khata No. 402/396, Khatooni No. 485 and Khata No.
403/397 & Khatooni No. 486, total area 8K—7M located in
Mauza Taraf Ismail Multan city is jointly owned and
possessed by petitioners, respondents and others. This chunk
of immovable property is not legally divided and all co-
sharers are jointly in possession of it, but the valuable
commercial portion of this undivided property is under the
possession and user of respondents.
3. That respondent No. 1 Mst. Shaista Bibi being the real sister
of respondents No. 2 to 12 and real daughter of respondent
No. 1 and near relative of respondents No. 13 to 17, in
connivance with them filed a fictitious and vexatious suit No.
279/1997 whereas she sought exclusive possession of valuable
commercial joint property for possession by way of partition
against her kins only (respondents No. 2 to 17) without
impleading the petitioners and other co-sharers who are the
necessary parties and succeeded to procure an ex-parte
preliminary decree through deceitful means on 10.4.2001 by
playing fraud with this Hon’ble Court. Actual facts were
intentionally concealed. The petitioners came to know about
the impugned decree in June 2002 through Revenue Staff,
hence, this petition is within time. The impugned preliminary
ex-parte decree dated 10.4.2001 is requested to be set aside
inter alia on the following: -
GROUUNDS
a) That respondent No. 1 (plaintiff) in her partition suit, in
connivance with respondents, her kins, sought separate
exclusive possession of her share only in valuable
commercial portion of the joint property detailed above
without impleading the petitioners--the co-sharers and
necessary parties in the joint holding. In both these
Khatas, there are numerous co-sharers/joint owners
who have not been impleaded as parties intentionally.
Respondent No. 1 in connivance with other respondents
succeeded to procure an ex-parte preliminary decree
from this Hon’ble Court by playing fraud. She
intentionally filed the instant suit exclusively against
her near kins only, so that she could manage to grab
valuable frontal commercial portion of the joint holding
through illegal, deceitful and fraudulent means, hence,
the decree, is liable to be set aside on this sole ground
only.
b) That a suit for partition has some distinct features. In
such a suit every co-sharer, being a necessary party,
should be added so as to enable the court to effectively
and completely adjudicate upon and settle all the
questions involved in the suit. No proper and legal
decree can be passed in absence of necessary party.
Even at appellate stage the court is competent to join
the omitted necessary parties suo moto without any
applications of either party. Reliance is placed on
1981 CLC 409.
c) That partition is merely an arrangement whereby co-
owners/co-sharers having an undivided interest in one
or many properties take by arrangement specific
property in lieu of their shares in all. A co-sharer cannot
apply for partition of some property included in the
joint holding without including the whole property
unless other co-owners agree to it. Therefore partial
partition is prohibited by law. No decree for partition
can be made in the absence of any co-sharer.
PLD 1973 Note 13
AIR 1943 Col 570
AIR 1935 Pat 241
d) That valuable rights of petitioners in the disputed
property are involved. The respondents in connivance
with one another, are trying to grab valuable
commercial front portion of common undivided
property through fraudulent and deceitful means by
jeopardizing the legal rights of petitioners in the joint
disputed holding.
In view of above respectful submissions, it
is humbly prayed that ex-parte preliminary
decree dated 10.4.2001 passed by Ch. Rasheed
Ahmad Civil Judge, Ist Class, Multan which has
been procured fraudulently and deceitfully by the
respondent No. 1 may kindly be set aside and
petitioners be allowed to defend their lawful
rights in the disputed property which is the
requirement of law, justice and equity.
Humble Petitioners,
Dated: ________
Through: -
Mian Abdul Aziz Naseem,
Advocate High Court,
123-District Courts, Multan.
Verification: -
Verified on oath at Multan this 22nd
day of June 2002/18.6.03 that all the
contents of the above titled suit are
correct and true to the best of our
knowledge and belief.
Petitioners
IN THE COURT OF LEARNED CIVIL JUDGE, MULTAN.
Muhammad Jawad Shah etc. Vs. Mst. Shaista Bibi etc.
Application under section 12 (2) C.P.C.
AFFIDAVIT of: -
Jawad Hussain Shah S/o Syed Muhammad Shah, caste
Bukhari, R/o Mauza Kotal Waris Shah, Octroi No. 1,
Suraj Miani Road, Multan.
I, the above-named deponent do hereby solemnly affirm and
declare as under: -
1. That petitioners No. 2 & 3 are minors and they are legally unable
to pursue this case independently, therefore, their real brother
Zia-ur-Rehman petitioner No. 4 is being appointed as their
guardian ad-litem during this suit whose interest is not at par with
that of minors.
2. That immovable property consisting of constructed portions and
open plots comprising of Khata No. 1 in black ink & 1 in red ink,
Khatooni No. 1 & 3, Qitat 14 total shares 90180, total area of
Khata 150K—6M located in Mauza Kotla Waris Shah, Octroi
No. 1, Multan and Khata No. 400/394, Khatooni No. 483, Khata
No. 402/396, Khatooni No. 485 and Khata No. 403/397 &
Khatooni No. 486, total area 8K—7M located in Mauza Taraf
Ismail Multan city is jointly owned and possessed by petitioners,
respondents and others. This chunk of immovable property is not
legally divided and all co-sharers are jointly in possession of it,
but the valuable commercial portion of this undivided property is
under the possession and user of respondents.
3. That respondent No. 1 Mst. Shaista Bibi being the real sister of
respondents No. 2 to 12 and real daughter of respondent No. 1
and near relative of respondents No. 13 to 17, in connivance with
them filed a fictitious and vexatious suit No. 279/1997 whereas
she sought exclusive possession of valuable commercial joint
property for possession by way of partition against her kins only
(respondents No. 2 to 17) without impleading the petitioners and
other co-sharers who are the necessary parties and succeeded to
procure an ex-parte preliminary decree through deceitful means
on 10.4.2001 by playing fraud with this Hon’ble Court. Actual
facts were intentionally concealed. The petitioners came to know
about the impugned decree in June 2002 through Revenue Staff,
hence, this petition is within time. The impugned preliminary ex-
parte decree dated 10.4.2001 is requested to be set aside inter alia
on the following: -
GROUUNDS
a. That respondent No. 1 (plaintiff) in her partition suit, in
connivance with respondents, her kins, sought separate
exclusive possession of her share only in valuable
commercial portion of the joint property detailed above
without impleading the petitioners--the co-sharers and
necessary parties in the joint holding. In both these Khatas,
there are numerous co-sharers/joint owners who have not
been impleaded as parties intentionally. Respondent No. 1
in connivance with other respondents succeeded to procure
an ex-parte preliminary decree from this Hon’ble Court by
playing fraud. She intentionally filed the instant suit
exclusively against her near kins only, so that she could
manage to grab valuable frontal commercial portion of the
joint holding through illegal, deceitful and fraudulent
means, hence, the decree, is liable to be set aside on this
sole ground only.
b. That a suit for partition has some distinct features. In such
a suit every co-sharer, being a necessary party, should be
added so as to enable the court to effectively and
completely adjudicate upon and settle all the questions
involved in the suit. No proper and legal decree can be
passed in absence of necessary party. Even at appellate
stage the court is competent to join the omitted necessary
parties suo moto without any applications of either party.
Reliance is placed on 1981 CLC 409.
c. That partition is merely an arrangement whereby co-
owners/co-sharers having an undivided interest in one or
many properties take by arrangement specific property in
lieu of their shares in all. A co-sharer cannot apply for
partition of some property included in the joint holding
without including the whole property unless other co-
owners agree to it. Therefore partial partition is prohibited
by law. No decree for partition can be made in the absence
of any co-sharer.
PLD 1973 Note 13
AIR 1943 Col 570
AIR 1935 Pat 241
d. That valuable rights of petitioners in the disputed property
are involved. The respondents in connivance with one
another, are trying to grab valuable commercial front
portion of common undivided property through fraudulent
and deceitful means by jeopardizing the legal rights of
petitioners in the joint disputed holding.
DEPONENT
Verification: -
Verified on oath at Multan this 21st day of June 2002
that all the contents of this affidavit are true and correct to
the best of my knowledge and belief. Nothing has been
kept concealed thereto.
DEPONENT
