Shakeel Ahmad vs Adj etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

WP No. 1414 of 2026

Shakil Ahmad vs ADJ etc

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 03.02.2026 Ch. Shakeel Ahmad Sindhu, Advocate for petitioner. Mr. Musleh ud Din Khan and Malik Muhammad Bakhsh Khaki, Assistant Advocates General Punjab. Rana Ghulam Hussain, Assistant Attorney General for Pakistan.

Muhammad Sharif (deceased), plaintiff-respondent No.3, now represented by his legal heirs, on 11.04.2022 filed a suit for possession through partition of suit property in the Court of learned Civil Judge Mailsi, District Vehari, against the defendants i.e. petitioner Shakeel Ahmad and respondent No.4 Abdul Salam (deceased), now represented through his legal heirs, regarding shop No. P- 228/SH measuring 135 sq.ft. He claimed that he is an innocent simple minded illiterate person and he purchased the aforesaid shop from Ehsan Elahi, etc. He asked Muhammad Ramzan, father of the defendants to accompany him to get the sale deed registered and said property was transferred to Muhammad Sharif vide sale deed No.971/1 dated 31.05.1987 and he obtained possession. The defendants started claiming ownership of the suit property and respondent No.3 filed a suit for permanent injunction against them on 16.12.2021, despite which the defendants dispossessed him on 27.12.2021 and also got registered a criminal case against the sons of

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respondent No.3. On 01.04.2022 respondent No.3 obtained a copy of afore-referred registered sale deed from which it transpired that Muhammad Ramzan, predecessor in interest of Shakeel Ahmad etc., (defendants) had fraudulently got incorporated his name in the said registry to the extent of half share in the said shop. He further claims that he reserves the right to challenge the fraudulent insertion in the registered sale deed, however, in the meanwhile he seeks possession of property through partition in terms of the sale deed. The petitioner and respondent No.4 filed contesting written statement and claimed that registered sale deed in the name of respondent No.3 is forged and bogus and the said suit is barred by law and plaint is liable to be rejected under Order VII Rule 11 of Code of Civil Procedure, 1908 (‘CPC’). The petitioner and respondent No.4 side by side on 20.12.2023 filed a suit for declaration challenging the aforementioned sale deed in favour of respondent No.3 by claiming the same to be a forged and bogus document and on the basis of claim in the said suit, in the instant case filed an application for consigning the titled suit to record by stating that as petitioner’s claim for partition of property is based on sale deed which is under challenge through the suit filed by them, therefore, the suit for partition is not proceedable.

2.The said application for consigning the titled suit to record has concurrently been dismissed by both the courts below through orders dated 14.06.2025 and 11.09.2025 (‘Impugned orders’), both of which are under challenge by the petitioner through this petition by claiming the same to be against the facts of the case and law on the subject.

3.The petitioner seeks stay of partition proceedings on the ground that title of respondent No.3 is under challenge in their suit on the ground that same is based on forged and

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fabricated document whereas on the other hand claim of respondent No.3 for partition of property is based on a registered sale deed and although authenticity of same is under challenge by the other side, the said sale deed still holds the field and unless the same is set-aside by declaration that it is a forged and fabricated document, it cannot be said that suit for partition of property on the basis of same is not proceedable. Therefore, there was no reason to stop proceeding in the partition suit or consign the same to record on that account as the allegations are still unsubstantiated and not established through cogent evidence and in view thereof the halting of partition proceedings for indefinite period would cause injustice to the other joint owners. The said position is supported by the principles laid down in Shah Karim Bakht and another versus Mst. Jehan Zeba and 4 others (2016 CLC 1896 Peshawar = PLJ 2017 Peshawar 18), wherein the petitioners prayed for stay of partition proceedings pending before the revenue authorities on the ground that the title of respondents was under challenge and the court held that before having a decree in their favour, the petitioners could not halt or stay partition proceedings or pray for dismissal of partition application under the law and directed the Assistant Commissioner concerned to conclude the partition proceedings. The operative portion of the said judgment is reproduced for convenience and clarity:

‘18. However, if at the most, the petitioners are succeeded in getting final decree in their favour up to Hon’ble Supreme Court of Pakistan, then their names will be entered in the revenue record in view of Section 53 of the ibid Act with possession given in partition proceedings to the respondent. So before having decree in their favour, they cannot

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halt/stay of partition proceedings or pray for dismissal of partition application under the law.

19.This Court after giving deep thought to the facts and circumstances of the instant case and arguments advanced by learned counsel for the parties as well as examining law on the subject, reaches to the conclusion that the revenue hierarchy has acted in accordance with law, while deciding the application filed by petitioners for suspension of partition proceedings and had correctly dismissed their application for rejection of partition application and had proceeded further for partition of joint land, thus, the findings arrived at by the learned fora below of Revenue hierarchy are well reasoned, lawful, with lawful authority, so, are upheld as no miscarriage of justice or injustice to petitioners have been caused or pointed out, so, need no interference of this Court under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973, rather halting of partition proceedings for indefinite period would definitely cause injustice to other joint owners i.e. Respondent No. 1.

20.Thus, in view of what has been discussed above, this petition being bereft of merits stands dismissed, however. The learned Assistant Commissioner concerned is directed to conclude the partition proceedings as early as possible in view of principles enumerated in the National judicial policy by the Hon’ble Supreme Court of Pakistan within four (4) months positively.’

4.Besides, suit for partition of property was filed by respondent No.3 earlier in time than the suit filed by petitioner and respondent No.4 to challenge the said sale deed in favour of respondent No. 3, which prior suit the petitioner seeks to be consigned to record either by stay of proceedings or rejection of plaint. It would be appropriate to reproduce Section 10 CPC for clarity: ‘"10. Stay of suit.---No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in

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Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Federal Government and having like jurisdiction, or before the Supreme Court."’

5.Section 10 of CPC is applicable to stay of subsequent suits only and suit filed prior in time could not be stayed by invoking the said provision for the reason that every party that does not want to let a suit proceed may subsequently file a similar suit and seek stay of proceedings of a prior suit, which would not only result in multiplicity of litigation but also be a hurdle and impediment in safe administration of justice besides being against the intention of law for the reason that all procedures are made for advancement of cause of justice and not to hinder administration of justice on basis of technicalities. However, it would also be important to note here that a court in its own discretionary jurisdiction despite what has been stated above, for safe administration of justice is not precluded to stay proceeding of a suit filed prior in time if the decision of the same would depend primarily upon the decision of some other suit filed subsequently.

6.Even otherwise it is pertinent to mention here that Section 10 CPC did not bar the institution of subsequent suits but only the trial of such suits in which the matter directly and substantially was the same. Reference if required may be made to Mst. Zafar Bano and another versus Messrs IFFCO Pakistan Pvt. Ltd. through Managing Director and another (2017 YLR Note 303 Sindh) wherein it has been mentioned that Section 10 of CPC did not bar the institution of subsequent suits but only the trial of such suits in which the matter directly and substantially was the same, hence, filing of subsequent suit

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cannot be a reason to stay proceedings of suit filed earlier in time on the basis of Section 10 of CPC on the ground of res-sub judice and the plaint of the suit can also not be rejected under Order VII Rule 11 CPC on the said account. It is important to not here that in Shaheen Alam and 3 others versus Mst. Bibi Salma (Widow) and 7 others (2023 CLC 685 Balochistan) the defendant had filed an application for stay of proceedings of a subsequent suit, filed for seeking declaration that the property had been transferred through forged power of attorney, by claiming that prior administration suit relating to same property filed under Section 371 of the Succession Act, 1925 was pending before the Sindh High Court and the trial court instead of rejecting the plaint under Order VII rule 11 CPC stayed the proceedings of said suit for declaration by invoking Section of 10 CPC. The High Court of Balochistan set aside the said order by observing that unless the five conditions mentioned in Section 10 CPC were fulfilled, the proceedings in the suit could not be stayed. The said conditions are mentioned below for clarity:

‘1) The matter in issue in both the suits must be directly and substantially the same.

2)The previously instituted suit must be pending in a court of competent jurisdiction.

3)The court before which the previous suit is pending must be competent to grant the relief in the subsequent suit.

4)Both the suits must be between the same parties or their representatives.

5)The parties must be litigating in both the suits under the same title.’

The Balochistan High Court in the said case further observed that neither suit could be stayed nor plaint could be rejected in the following terms:

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‘The cause of action of the instant suit is quite different from the suit pending before the High Court of Sindh at Karachi. Perusal of the record further reveals that the application filed by the petitioner before the trial Court under Order VII, Rule 11, C.P.C. is not fulfilling the five conditions, as mentioned in para supra, nor fulfills the conditions for the reason that the instant suit is of different cause of action with different title and between different parties. More so, the question of applicability of Section 10, C.P.C. in view of the facts and circumstances of the case does not arise at all on the reason that the nature of both the matters i.e. administration suit pending before the High Court of Sindh at Karachi and present suit filed before civil jurisdiction of Quetta are quite different in nature and with different cause of action.’

7.Even otherwise had the suit filed by the petitioner to challenge the sale deed in favour of respondent No.3 been prior in time to the suit for partition of property filed by the said respondent, the said application for consigning the file to record would be of no benefit to him and partition suit would still be proceedable as the right to seek partition is a right independent of any previous suit regarding the same property. For reaching said conclusion reliance may be placed on Zakirullah and others versus Muhammad Rehman and others (2025 SCMR 430), wherein the plaint of suit for partition of property filed by the petitioners had been rejected under Order VII Rule 11 CPC on the ground that their suit is hit by the principles of res judicata as their earlier suit for declaration challenging a sale deed regarding the same property had been dismissed. The Supreme Court set aside the order of rejection of plaint of partition suit and remanded the suit for decision afresh by holding that the right of partition is an independent right and cannot be connected with any previous suit even with regard to the same property and

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cannot be declared as barred by Rule 11 of Order VII CPC. The operative portion of the said decision is reproduced below for clarity:

‘A look at the above order would reflect that the suit of the petitioners for partition of their property was dismissed for being barred by Rule 11 of Order VII as res-judicata and thereby their plaint was rejected. The earlier suit for which the present suit for partition has been dismissed/rejected was for a declaration under section 42 of the Specific Relief Act, 1877 and that admittedly was not decided on merits but that would not bar the subsequent suit for partition. The right of partition of one's property is an independent right and cannot be considered as a subsequent suit being barred by the principle of res-judicata. The learned counsel for the respondents tried to make out a case by arguing that the suit of the petitioners is also barred by Order II Rule 2 of C.P.C. and they were required to ask for partition of their share in the suit property in the earlier round of litigation. We are afraid, the argument of learned counsel for the respondents appears to be based on some misconception of law. The right of partition is an independent right and cannot be connected with any previous suit even with regard to the same property and cannot be declared as barred by Rule 11 of Order VII C.P.C.

3.So, in view of the above discussion, this petition is converted into appeal and allowed and the judgment and decrees of all the three courts below are set aside. The suit of the petitioners would be deemed pending before the trial court who should proceed with the same from the stage where it was dismissed/rejected.’

8.Moreover, as evidence is required to be recorded in the matter for determination of respective pleas of the petitioner and respondents and the authenticity of sale deed in also to be considered therefore, plaint could also not be summarily rejected or consigned to record for the reason that summary rejection would unjustly render the parties remediless. Reliance is place on Ahmad Ali Talpur versus Sub-Registrar Latifabad, Hyderabad and others

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(PLD 2025 SC 302), where evidence was required to determine facts, the Supreme Court by holding that summary rejection would unjustly render the parties remediless, quashed and set aside the order passed by trial court rejecting the plaint, which had also been affirmed by Lower Appellate Court and then by High Court in second appeal and remanded the matter to trial court for decision afresh on merits after recording of evidence.

9.The plea raised by the petitioner that question of title could not be determined by the civil court during partition proceedings is misconceived as Section 8 of the Punjab Partition of Immovable Property Act, 2012 mentions that when there is a dispute as to title or share in immovable property, the court shall decide the said question before proceeding further in the suit under the said Act. Here it may be important to mention that a suit for partition of property even if relates to an agricultural land in which question of title was involved is maintainable before the Civil Court despite the fact that in case the title was clear, original jurisdiction to partition such land vested in revenue authorities under the Land Revenue Act, 1967. Reliance may be placed on Rizwana Shaheen versus Ch. Ghulam Mustafa and 3 others (2011 CLC 768 Lahore).

10.Moreover, in Mst. Zahida Begum versus Ashfaq Ahmad and others (PLD 2020 Lahore 684) the defendant, in a suit for administration and partition of immovable assets, claimed that a certain plot was gifted to his predecessor by the common ancestor of parties. Contention of defendant was that the question of title of property could not be determined in a suit for administration of property. The Court observed that suit filed by plaintiff was not a suit for administration alone, it

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was also a suit for partition wherein the plaintiff, in the title of the suit and also in the body of plaint, had time and again prayed for partition of properties in question and in view thereof by holding that in a suit for partition of property court could consider and decide the question of title, objection of the defendant against maintainability of suit was turned down.

11.Consequently, in view of the principles laid down in the judgments mentioned above, it is observed that pendency of other suit to question the authenticity of sale deed of respondent No.3 was not an impediment in the way of court in proceeding with the suit for partition of property, which could also consider and determine the question of title while proceeding with the matter consequently the suit for possession of property through partition could not by consigned to record by either staying proceedings of the same under Section 10 CPC or by summarily rejecting the plaint under Order VII Rule 11 CPC, therefore, the impugned orders, whereby application of the petitioner for consigning the suit to record has been dismissed, do not suffer from any misreading or non- reading of the record, illegality or jurisdictional defect for this Court to warrant interference.

12.For what has been discussed above, this petition being devoid of any merit is dismissed in limine.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *

APPROVED FOR REPORTING