Muhammad Sajjad vs The Adj etc.

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Writ Petition No.3302 of 2025.

Muhammad Sajjad. Vs. Addl. District Judge and 151 others.

S. No. of Date of Order with signature of Judge, and that of parties or counsel, order/ order/ where necessary.

Proceeding proceeding

24.09.2026. Mr. Muhammad Umer Farooq, Advocate for the petitioner. Mr. Mehmood Ahmad Bhatti, Advocate for respondent No.69.

Through this Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred as the Constitution), the petitioner has called in question the legality and propriety of the order dated 14.03.2025 and 05.04.2025, passed by the learned Civil Judge Class-I, Bahawalpur and learned Addl. District Judge, Bahawalpur.

2.Precisely stated, the relevant facts of the case are that the petitioner (Muhammad Sajjad) instituted a suit for partition against respondents, which was contested by some of the respondents by filing of written statement. Said suit was decreed vide judgment and decree dated 20.12.2024 and the petitioner/plaintiff was directed to pay the Court-fee of 2% according to his respective share alongwith stamp-duty as per market value of the suit property to execute partition instrument.

3.Thereafter, an application was moved by the petitioner under Section 47, 152 of CPC for correction of Para No.6 of the aforementioned judgment and decree regarding the payment of stamp-duty of Rs.5,00/- instead of 2% of inherited property.

4.Said application was dismissed by the learned Civil Judge Class-I, Bahawalpur (hereinafter referred as the learned trial Court), vide order dated 14.03.2025. Said order was assailed by the petitioner by filing an appeal, which was dismissed by the learned Addl. District Judge, Bahawalpur (hereinafter referred as the learned

appellate Court), vide impugned judgment / order dated 05.04.2025, hence this writ petition.

5.Learned counsel for the petitioner contended that the impugned orders are contrary to law, without lawful authority and have been passed without proper application of judicial mind. He submitted that both the learned Courts below failed to appreciate the statements of the petitioner recorded on 05.01.2024 and 23.01.2024, whereby it was specifically clarified that the petitioner sought relief only against the co-heirs, whereas the remaining co-sharers were impleaded merely to fulfil the legal requirement. Thus, according to learned counsel, the subject matter of partition, to the extent relevant to the petitioner’s claim, exclusively related to the inherited property and the rights of the co-heirs therein. Learned counsel further submitted that the learned Courts below have misapplied the provisions of the Stamp Act, 1899, by directing payment of stamp duty at the rate of 2% of the value of the petitioner’s share. He contended that under Article 45 of Schedule I of the Stamp Act, 1899, the stamp duty prescribed in a case of partition of inherited property is only Rs.500/-. Therefore, according to learned counsel, the direction to pay stamp duty at the rate of 2% is contrary to the applicable law and has been issued without lawful authority.

6.On the other hand, learned cousnel for respondent No.69 maintained that he has no objection if this petition is accepted.

7.Arguments heard. Record perused.

8.The controversy involved in the instant petition is confined to the question as to whether the petitioner is liable to pay stamp duty at the rate of 2% of the value of his share in the property subject-matter of partition, as directed by the learned Trial Court in paragraph No.6 of the judgment dated 20.12.2024, or whether the fixed stamp duty of Rs.500/- prescribed for partition of inherited property is payable. The record reflects that the petitioner instituted the suit for partition in respect of his share in the joint holding, which admittedly comprised inherited property. It is also borne out from the record that during the proceedings, the petitioner appeared

before the learned Trial Court on 05.01.2024 and 23.01.2024 and his statements were duly recorded. In the said statements, the petitioner specifically clarified that the relief sought by him was against the co-heirs, whereas the other co-sharers/subsequent purchasers had been impleaded only for the purpose of fulfilling the legal requirements of the partition proceedings. The said statements, being part of the judicial record, could not have been ignored while determining the nature and extent of the relief sought by the petitioner.

9.It is an admitted position that the suit was ultimately decreed on 20.12.2024. However, while directing preparation of the decree sheet, the learned Trial Court required the petitioner to deposit stamp duty at the rate of 2% of the value of his share in the market value of the suit property. The petitioner thereafter specifically invoked Sections 47 and 152, C.P.C., seeking correction of the said direction on the ground that the property in question was inherited property and that the applicable stamp duty was the fixed duty prescribed for partition of inherited property. The learned Trial Court, however, declined the relief and the learned Appellate Court also dismissed the appeal in limine.

10.The approach adopted by the learned Courts below cannot be sustained. The nature of the property and the actual relief granted through the decree are material for determining the stamp duty payable. Mere impleadment of other co-sharers or subsequent purchasers in the partition proceedings, for the purpose of ensuring complete and effective adjudication, would not by itself alter the character of the substantive relief sought and granted in respect of the inherited estate. The statements of the petitioner dated 05.01.2024 and 23.01.2024 clearly demonstrate that the relief claimed by him was confined to his rights arising out of the inherited property and against the concerned co-heirs. The learned Courts below, while maintaining the direction for payment of stamp duty at the rate of 2%, have not recorded any convincing reason as to how the case of the petitioner falls within the provision attracting stamp

duty calculated on the market value of his share rather than the specific provision governing partition of inherited property. The impugned direction, therefore, cannot be sustained merely on the basis of the market value of the property without first determining the precise statutory provision applicable to the transaction/decree in question.

11.Insofar as the applicable provision of the Stamp Act, 1899, is concerned, learned counsel for the petitioner has placed reliance upon Article 45 of Schedule-I thereof, wherein an exception was inserted by the Punjab Finance Act, 2012 (XLI of 2012), published in the Punjab Gazette (Extraordinary), dated 25 June, 2012. pp 41719-41724: It come into force on 1 July 2012. Said exception is being produced below for better understanding:- (Exception):- Notwithstanding anything contained herein, a fixed stamp duty of five hundred rupees shall be charged in respect of an instrument of partition relating to an urban or rural property including agricultural land, which is partly or wholly based on opening of inheritance.

Further contended that where the partition concerns inherited property, the stamp duty is payable at the fixed rate prescribed therein and not at the rate of 2% of the value of the share. The said contention finds support from the nature of the proceedings, the statements of the petitioner available on the record and the decree passed by the learned Trial Court. It is also settled that a statutory authority or Court cannot impose a fiscal liability upon a party except in accordance with the express provision of law. Where the legislature has prescribed a specific and fixed stamp duty for a particular instrument or transaction, the same cannot be substituted by a percentage-based levy without lawful authority. In the present case, the learned Courts below have failed to demonstrate any legal basis for directing the petitioner to pay stamp duty at the rate of 2%.

12.I am, therefore, of the considered view that the direction contained in paragraph No.6 of the judgment dated 20.12.2024, insofar as it requires the petitioner to deposit stamp duty at the rate of 2% of the value of his share in the suit property, is not

sustainable in law. Consequently, the subsequent order dated 14.03.2025, whereby the petitioner’s application under Sections 47 and 152, C.P.C., was dismissed, as well as the appellate order / judgment dated 05.04.2025, whereby his appeal was dismissed in limine, have also lost their legal foundation to that extent.

13.For what has been discussed above, the instant writ petition is allowed. The impugned order dated 14.03.2025, passed by the learned trial Court and judgment dated 05.04.2025, passed by the learned Appellate Court are hereby set-aside to the extent they maintain the direction regarding payment of stamp duty at the rate of 2% of the value of the petitioner’s share. The direction contained in paragraph No.6 of the judgment dated 20.12.2024 is accordingly modified, and the petitioner shall be liable to pay only the fixed stamp duty of Rs.500/- applicable to the partition of the inherited property, instead of stamp duty calculated at the rate of 2%. The learned Trial Court is directed to proceed with preparation of the decree sheet upon payment of the aforesaid fixed stamp duty of Rs.500/-, subject to fulfilment of all other legal and procedural requirements.

(Tanveer Ahmad Sheikh) Judge Approved for reporting.

Judge Muhammad AJMAL