Practice & Procedure of a Partition Suit.pptx

Practice & Procedure of a Partition Suit by MUHAMMAD EJAZ RAZA
ADDL DISTRICT & SESSIONS JUDGE (MA; LLB; LLM)

1. PRACTICE AND PROCEDURE OF A PARTITION SUIT BY MUHAMMAD EJAZ RAZA ADDL DISTRICT & SESSIONS JUDGE, BAHAWALPUR (MA; LLB; LLM) AUTHOR OF : UNDERSTANDING THE CRIMINAL TRIAL POWERS AND JURISDICTION OF TRIAL COURT ISLAMIC LAW AND JURISPRUDENCE

2. RELEVANT LAW THE PUNJAB PARTITION OF IMMOVABLE PROPERTY ACT 2012 (Act IV of 2013) Sample Footer Text 2 This Act was passed by the Punjab Assembly on 27 December 2012; assented to by the Governor of the Punjab on 3 January 2013; and, was published in the Punjab Gazette (Extraordinary), dated 5 January 2013. It shall extend to whole of the Punjab. (SECTION 1)

3. JURISDICTION --- PROCEDURAL LAW --- LIMITATION . Only immovable property , jointly owned by two or more persons; Excluding: Agricultural land or land subservient to agriculture .   An owner of immovable property may file a suit for partition of the property, in the Court of original civil jurisdiction competent to entertain and decide suits for partition of immovable property; which shall follow the CPC (Section 15 )

4. FRAME OF SUIT Sample Footer Text 4 Suit shall contain details of the property, Citing all other co-owners as defendants and Attaching all the relevant documents in his reach or possession .

5. APPEARANCE OF – DEFENDANTS Sample Footer Text 5 Notice to the defendants for appearance within 10- days, through the process serving agency and  registered post or courier service and / or , through digital means , if he appears he shall submit written statement within 30-days , coupled with all relevant documents failing which Court shall strike off his defence and in that event he shall not be entitled to lead any evidence. (Section- 5 &6)

6. NON-APPEARANCE OF DEFENDANT [ Section- 5 ]  If a defendant wilfully avoids, it is advisable to go for alternative modes of service before initiating exparte proceedings by–  ( i )   affixing a copy of the notice at his residence or (ii)   publication in the press, electronic media or any other mode. Like tickers Sample Footer Text 6

7. EXPARTE – SETTING ASIDE . (Section- 5 ) Sample Footer Text 7 E x- parte  defendant, may, within 15- days from the date of knowledge, apply to the Court for setting aside the ex- parte  order This application shall be coupled with written statement and all relevant documents. If the defendant submits the written statement and shows sufficient cause for his non appearance, the Court may set aside the ex- parte  order on such terms as it may deem fit.

8. TENTATIVE RENT (Section- 7) Sample Footer Text 8 On the first date of hearing or any other date , the Court may, direct the co-owner, in possession to deposit, either on monthly or quarterly basis, such interim mesne profits in the Court as it may determine , with in time fixed by court. If no t fixed then on or before 15th of the month.

9. NON - DEPOSIT OF RENT --- PROBLEM Sample Footer Text 9 If the co-owner fails to deposit the amount under this section within the time specified, the Court shall : – In case he is plaintiff, dismiss his suit; and In case he is defendant, strike off his defence  and defense evidence. This defaulted amount shall be deducted from the share of the defaulter (s-12)

10. QUESTION OF TITLE OR SHARE (SECTION- 8) Sample Footer Text 10 When there is a dispute as to the title or share , the Court shall decide such question before proceeding further in the suit under this Act which shall be deemed to be a DECREE in terms of the Code. PRELIMINARY DECREE A DECREE is preliminary when further proceedings have to be taken before the suit is finally disposed of. [ See Section-2(2) & Order-20; Rule- 18] CPC

11. APPOINTMENT OF REFEREE FOR PARTITION . (Section- 9) Sample Footer Text 11 If all the co-owners agree in writing on partition of the immovable property through appointment of a referee, the Court shall appoint a referee for partition of the property . ALSO SEE ORDER-26; R-13 & 14 CPC

12. DUTIES OF REFREE Sample Footer Text 12 Subject to the restrictions imposed under any law governing town planning, the referee shall decide : whether property is partible and if so, prepare propos al . The referee may, combine the shares of co-owners in the proposal of partition. The Court shall PASS the final Decree on the proposal of the referee if it is not in contravention of any law. fee of the referee by the co-owners as per shares .

13. INTERNAL AUCTION .– (Section- 10) Sample Footer Text 13 If co-owners not agree on REFREE or according to Refree , property is not partible or the Court finds that the proposal not equitable or is in contravention of any law, T he Court shall determine the reserve price of the immovable property and direct sale of the property through internal auction on the next date of hearing. The Court shall require the co-owners to be present in person or through their authorized agents on the date of internal auction.

14. PROCEDURE OF INTERNAL AUCTION Sample Footer Text 14 The internal auction shall be conducted in the Court Any two or more co-owners of the immovable property may submit their written offers or counter written offers until one of them makes the highest written offer. The Court shall declare the highest bidder as auction purchaser and direct him to deposit the auction price within 15- days minus his share.

15. IF INTERNAL AUCTION FAILS …. ? Sample Footer Text 15  If the auction purchaser fails to deposit the auction price within the prescribed time, the Court shall fix another date for internal auction but such auction purchaser shall not participate in the subsequent internal auctions. [Section- 10]

16. OPEN AUCTION (Section- 11) Sample Footer Text 16 If the co-owners refuse to participate in the internal auction or O nly one co-owner shows his willingness to participate in such auction or T he internal auction fail s , the Court shall put the property on open auction wherein all co-owner of the immovable property may participate.

17. PROCEDURE OF OPEN AUCTION Sample Footer Text 17           The Court shall appoint a court auctioneer for conducting the open auction and fix his fee to be paid by the co-owners as per their share . The court auctioneer shall submit his Auction Plan to the court , which shall include detailed specifications of the property, the time, date and place of open auction, and the amount of bid security for approval of Court. Court may approve the auction plan with or without modification and direct its publication in such manner as it deems appropriate.

18. DUTIES OF COURT AUCTIONEER Sample Footer Text 18                 The court auctioneer shall conduct open auction under the approved auction plan and published by the Court and direct the highest bidder to deposit–                 (a)  earnest money equal to twenty per cent of the bid price immediately on the close of bidding; and the remaining amount of the bid price in the court within seven days in the form of cash , crossed cheque, demand draft or banker’s cheque.

19. IF THE HIGHEST BIDDER FAILS TO DEPOSIT THE AUCTION PRICE Sample Footer Text 19 If the highest bidder deposits the auction price, the Court shall confirm the sale, put the highest bidder in possession of the property and distribute the auction price amongst the co-owners according to their respective shares. If he fails to make balance amount, t he amount deposited by him shall stand forfeited and property shall be put to open auction again,

20. MESNE PROFITS.–  (Section- 12) Sample Footer Text 20 Subject to sections 10 and 13, the Court may, at the time of final settlement, award mesne profits to a co-owner not in possession of the joint immovable property by deducting the same from the share of the co-owner in possession of the property or by directing the co-owner in possession of the property to pay the same to the co-owner not in possession of the property. (2)  The Court shall, while awarding mesne profits take into account the interim mesne profits deposited under section 7.

21. PRIVATE SETTLEMENT . (SECTION- 13) Sample Footer Text 21   All the co-owners of the immovable property may, at any stage of the proceedings before the date of open auction of the property, submit a Private Settlement in the Court. If the co-owners submit the private settlement the Court shall pronounce judgment and decree in terms of the private settlement and cancel the order of open auction if already passed.

22. TIME LI NE IN PARTITION CASES. Sample Footer Text 22   For notice to defendant 10-days For setting aside ex- parte proceedings – 15 days For written statement. 30-days Deposit of auction price in court 15-days Deposit of auction price in open auction 7-days DISPOSAL OF SUIT 6 months

23. SECTION -14 & 17 Sample Footer Text 23 Case to be decided in 6-moths from the date of the institution of the suit, failing which, the Court shall submit the case to the District Judge, with cogent reasons, seeking extension of time for disposal of the suit.          (2)  The District Judge may, subject to such conditions as he deems appropriate to impose, grant extension in time to dispose of the suit taking into consideration the facts and circumstances of the case.

24. STAGES IN A SUIT FOR PARTITION Sample Footer Text 24 RECEIVING OF PLAINT NOTICE TO THE DEFENDANTS WRITTEN STATEMENT ISSUES EVIDENCE BY THE PARTIES PASSING OF DECREE APPOINTMENT OF REFREE INTERNAL AUCTION OPEN AUCTION PRIVATE SETTLEMENT PASSING OF FINAL SHORT ORDERS DECLARIGN THE PRLIMNNARY DECREE FINAL, AND ISSUANCE OF INSTRUMENT OF PARTITION SALE CERTIFICATE

25. ISSUES AND CASE LAWS Partition of amenity plot s Partition of property without title 1988 CLC 33 hujrah in abadi deh / Shamlat Deh, was held liable to be partitioned by civil court TO THE EXTENT OF POSSESSORY RIGHTS SHAMLAAT DEH -- AGAINST 2019 CLC 1291 RELIED ON KHALIQUE AHMED 1993 SCMR 381 Sample Footer Text 25

26. THANK YOU ALL QUESTIONS AND ANSWERS Sample Footer Text 26