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
 RELEVANT LAW
This Act was passed by the Punjab Assembly

THE PUNJAB PARTITION OF on 27 December 2012; assented to by the

IMMOVABLE PROPERTY ACT Governor of the Punjab on 3 January 2013;
2012 and, was published in the Punjab Gazette
(Act IV of 2013) (Extraordinary), dated 5 January 2013. It shall
extend to whole of the Punjab. (SECTION 1)
SAMPLE FOOTER TEXT

2
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)
 FRAME OF SUIT

 Suit shall contain details of the property,

 Citing all other co-owners as defendants and

SAMPLE FOOTER TEXT

 Attaching all the relevant documents in his reach or

possession.

4
 APPEARANCE OF – DEFENDANTS
 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,
SAMPLE FOOTER TEXT

 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)
5
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
 EXPARTE – SETTING ASIDE. (Section- 5)

 Ex-parte defendant, may, within 15-days from the date of

knowledge, apply to the Court for setting aside the ex-parte order
SAMPLE FOOTER TEXT

 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.
7
 TENTATIVE RENT (Section- 7)
 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
SAMPLE FOOTER TEXT

interim mesne profits in the Court as it may determine, within time

fixed by court.
 If not fixed then on or before 15th of the month.

8
 NON-DEPOSIT OF RENT --- PROBLEM
 If the co-owner fails to deposit the amount under this section within
the time specified, the Court shall :–
SAMPLE FOOTER TEXT

 In case he is plaintiff, dismiss his suit; and

A. In case he is defendant, strike off his defence and defense evidence.
B. This defaulted amount shall be deducted from the share of the
defaulter (s-12)
9
 QUESTION OF TITLE OR SHARE (SECTION- 8)
 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.
SAMPLE FOOTER TEXT

 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

10
 APPOINTMENT OF REFEREE FOR PARTITION.(Section- 9)
 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 .
SAMPLE FOOTER TEXT

 ALSO SEE ORDER-26; R-13 & 14 CPC

11
 DUTIES OF REFREE
 Subject to the restrictions imposed under any law governing town
planning, the referee shall decide:
 whether property is partible and if so, prepare proposal.
 The referee may, combine the shares of co-owners in the proposal of
SAMPLE FOOTER TEXT

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.
12
 INTERNAL AUCTION.– (Section- 10)
 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,
 The Court shall determine the reserve price of the immovable
SAMPLE FOOTER TEXT

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.

13
 PROCEDURE OF INTERNAL AUCTION

 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
SAMPLE FOOTER TEXT

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.

14
 IF INTERNAL AUCTION FAILS …. ?
 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
SAMPLE FOOTER TEXT

internal auctions. [Section- 10]

15
 OPEN AUCTION (Section- 11)
 If the co-owners refuse to participate in the internal auction or
 Only one co-owner shows his willingness to participate in such auction
or
SAMPLE FOOTER TEXT

 The internal auction fails, the Court shall put the property on open
auction wherein all co-owner of the immovable property may
participate.

16
 PROCEDURE OF OPEN AUCTION

 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
SAMPLE FOOTER TEXT

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.

17
 DUTIES OF COURT AUCTIONEER

 The court auctioneer shall conduct open auction under the

approved auction plan and published by the Court and direct the
highest bidder to deposit–
SAMPLE FOOTER TEXT

 (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.

18
 IF THE HIGHEST BIDDER FAILS TO DEPOSIT
THE AUCTION PRICE

Ifthe highest bidder deposits the auction price, the Court shall
confirm the sale, put the highest bidder in possession of the property
SAMPLE FOOTER TEXT

and distribute the auction price amongst the co-owners according to

their respective shares.

Ifhe fails to make balance amount, the amount deposited by him shall
stand forfeited and property shall be put to open auction again,

19
 MESNE PROFITS.– (Section- 12)
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
SAMPLE FOOTER TEXT

bydirecting 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.

20
 PRIVATE SETTLEMENT. (SECTION- 13)

Allthe 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.
SAMPLE FOOTER TEXT

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.

21
 TIME LINE IN PARTITION CASES.

 For notice to defendant 10-days

 For setting aside ex-parte proceedings – 15 days
 For written statement. 30-days
SAMPLE FOOTER TEXT

 Deposit of auction price in court 15-days

 Deposit of auction price in open auction 7-days
 DISPOSAL OF SUIT 6 months

22
 SECTION -14 & 17
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.
SAMPLE FOOTER TEXT

 (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.

23
 STAGES IN A SUIT FOR PARTITION

1) RECEIVING OF PLAINT
2) NOTICE TO THE DEFENDANTS
3) WRITTEN STATEMENT
4) ISSUES
5) EVIDENCE BY THE PARTIES
6) PASSING OF DECREE
SAMPLE FOOTER TEXT

7) APPOINTMENT OF REFREE
8) INTERNAL AUCTION
9) OPEN AUCTION
10) PRIVATE SETTLEMENT
11) PASSING OF FINAL SHORT ORDERS
12) DECLARIGN THE PRLIMNNARY DECREE FINAL,
13) AND ISSUANCE OF INSTRUMENT OF PARTITION
14) SALE CERTIFICATE
24
ISSUES AND CASE LAWS
 Partition of amenity plots
 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
THANK YOU ALL
QUESTIONS AND ANSWERS

SAMPLE FOOTER TEXT

26