Maryam Tariq Vs Tariq Hussain and others

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Writ Petition No.10762-P/2026

Maryam Tariq....................................Petitioner Versus

Tariq Hussain and others...............,Respondents Present:

Barrister Huzaifa Ahmad, Advocate, for the petitioner.

Respondents No.1 to 6 have been placed ex-parte vide order dated

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through the instant petition, petitioner has challenged the order and judgment of learned Civil Judge-XVI, Peshawar dated 10.01.2026, whereby an application filed by the present petitioner under Order VII Rule 11 CPC for summary rejection of the plaint has been dismissed and that of the order and judgment of learned Additional District Judge-II, Peshawar dated 15.07.2026, whereby a revision petition filed by the present petitioner against the aforesaid order and judgment has also been dismissed.

2.Precisely, the facts leading to the filing of the instant petition are that respondents No. 1 to 6

then plaintiffs, being the legal heirs of late Haji Sher Muhammad Khan, brought the instant suit for partition of house No.634, Street No.20, Sector E- 6, Phase-7, Hayatabad, Peshawar, on the ground that they being co-owners are entitled for their Share in the same. As per the averments made in the plaint, it is the case of the respondents No.1 to 6/plaintiffs that their father, namely Haji Sher Muhammad Khan, and the predecessor-in-interest of the present petitioner, namely Ghazi Marjan, were first cousins inter-se and it was their father, who had settled in Dubai, where he was employed in the electricity department and later on, the predecessor of the present petitioner, namely Ghazi Marjan, also went to Dubai and as such both of them started their joint business, but during that period of joint business, their father, namely Haji Sher Muhammad Khan, passed away, whereafter Ghazi Marjan (the predecessor-in-interest of the present petitioner) captured the entire running business and its assets. It is further pleaded that it was in the year 2005, when the said Ghazi Marjan shifted to Pakistan with his family and built a luxurious residential subject house. The other facts as pleaded in the instant plaint pertains to a dispute between the parties with respect to a property situated at District Kurram. The present petitioner

then defendant No. 7 on being summoned attended the proceedings and filed an application under Order VII Rule 11 CPC for the summary rejection of the plaint, to which the present contesting respondents No.1 to 6 submitted their reply;

however, the same was dismissed vide one of the impugned order and judgment dated 10.01.2026.

The present petitioner considering herself aggrieved filed a revision petition before the Court of learned Additional District Judge-II, Peshawar, but the same was also dismissed vide the second impugned order and judgment dated 15.07.2026;

hence, the instant writ petition.

3.Initially, when this case was taken up for preliminary hearing on 30.07.2026, pre-admission notices were issued to the respondents No.1 to 6 then plaintiffs and the case was adjourned to 16.09.2026. The respondents No. 1 to 6 were duly served for the date fixed; however, despite service, they did not appear; therefore, they were placed ex- parte vide order dated 16.09.2026 of this Court and the case was adjourned for today for ex-parte arguments on behalf of the petitioner. Today, arguments of learned counsel for the petitioner were heard in considerable detail and the appended record was also gone through.

4.The very contents of the plaint would show that the respondents No.1 to 6/plaintiffs have filed the instant suit exclusively for partition of a house bearing No.634, Street No.20, Sector E-6, Phase-7, Hayatabad, Peshawar. The contents of the plaint would further show that it is the case of respondents No.1 to 6/plaintiffs that their father, namely Haji Sher Muhammad Khan, and the predecessor-in-interest of the present petitioner, namely Ghazi Marjan, are first cousins and they were running a joint business in Dubai; however, after the death of Haji Sher Muhammad Khan, the said Ghazi Marjan had captured the entire joint business and its assets and subsequently, the said Ghazi Marjan had shifted to Pakistan where he has constructed the subject house from the income allegedly generated through the said joint business. It is also an admitted fact that the subject house is situated in Hayatabad, which is a posh residential area and a housing scheme supervised, administered and managed by the Peshawar Development Authority (PDA) and as such the record pertaining to every inch of the said housing scheme, including residential houses, mosques, parks, green belts, and other public and private buildings, is duly maintained by the PDA. It is also an admitted fact that the respondents No.1 to 6/plaintiffs have not annexed any record to the effect

that they are co-owners in the subject house; rather, they have annexed certain revenue record with their plaint, which is pertaining to a property situated at District Kurram; therefore, what could be concluded from the contents of the plaint of the respondents No.1 to 6/plaintiffs is that it is their case that since their father, namely Haji Sher Muhammad Khan and the predecessor of the petitioner, namely Ghazi Marjan, were running joint business and as such the said Ghazi Marjan has constructed the subject house from the amount earned in the joint business.

As against this, when the present petitioner then defendant No. 7 was summoned, she submitted an application under Order VII Rule 11 CPC for summary rejection of the plaint on the ground that she is the exclusive owner of the subject house and in this regard, she has appended the record of the suit house duly maintained by the Peshawar Development Authority (PDA). The same has also been appended with the instant petition, which would show that the present petitioner is the sole and exclusive owner of the subject house, whereas neither the name of the predecessor of the respondents No.1 to 6/plaintiffs, namely Haji Sher Muhammad Khan, nor that of the respondents No.1 to 6/plaintiffs finds mention anywhere in these documents and as such as per the aforesaid official

documents, the petitioner/defendant is, prima facie, the sole and exclusive owner of the subject house.

5.In the given facts and circumstances, when the respondents No.1 to 6/plaintiffs have filed the instant suit under a single head i.e. for partition of the subject house and when they have not appended a single document to show that either their father, namely Haji Sher Muhammad Khan, or they are the co-owners in the subject house, and as against this, when the petitioner/defendant has categorically denied their title and has pleaded her exclusive title/ownership of the suit house and when she has also appended and produced the record of the said house, duly issued and prepared by the Peshawar Development Authority (PDA), then, in the given facts and circumstances, the only question before this Court is that as to where the title of the property under partition has been disputed in a suit for partition, then whether such a suit could be maintainable or not?

6.In order to answer the aforesaid question, it would be relevant to mention here that as per the jurisprudence so far developed in the sub-continent, a suit for partition fundamentally indicates and presupposes the coexistence of unity of title and unity of possession (physical or constructive)

amongst the co-owners, which means that a suit for partition could only be maintainable if all the impleaded parties are in unison qua the fact that the property sought to be partitioned is jointly owned by them and is in their possession, or in the possession of a co-owner on their behalf and as against this, where an impleaded party claims an exclusive title of the property under partition then such a claim directly negates the unity of title, because partition is merely the distribution of shares among the admitted or established co-owners and as such a Civil Court cannot grant physical possession through partition until the controverted question of ownership-cum-title is resolved and thus a suit/application for partition could only be maintainable where the title of the property between the parties being co-owners is not disputed; however, even if the parties are close relatives or derive title from a common predecessor, but anyone of them denies title, then, in such eventuality, a suit for partition could not be maintainable and the proper course for a person who asserts partition of the suit property is to first establish his title with respect to the property under partition. In the present case, since neither the respondents No.1 to 6/plaintiffs have produced any document to establish that they are recorded co- owners in the suit house, nor they have produced any

document to show that the suit house was the ownership of their predecessor, namely Haji Sher Muhammad Khan, then, in the stated eventuality, their suit for partition could not proceed, especially when the petitioner/defendant, on being summoned, has produced documents issued by a public functionary (PDA) to the effect that she is the owner of the suit house. In the case1, the Patna High Court has held that the necessary conditions for a suit for partition are: firstly, that there must be unity of title;

and, secondly, there must be unity of possession. In another case2, the Hon’ble Lahore High Court has held that unity of title and unity of possession must exist between the parties impleaded in the suit for partition qua the property sought to be partitioned. If anyone impleaded in the suit claims a paramount title in the property, obviously he is negating unity of title and as such the plea falls outside the scope of a partition suit. It has further held in the said judgment that unity of title and unity of possession are prerequisite conditions for a partition suit. In their absence or where a document or adverse claim negates title a party cannot proceed with a simple partition suit without resolving the question of title and seeking appropriate cancellation or declaration.

1 “Wajihunnissa vs. Bankebehari Singh” (AIR 1930 Pat. 177) 2 “Syed Mohsin Raza Bukhari and 4 others vs. Syeda Azra Zenab Bukhari” (1993 CLC 31)

Similarly, in the case3, the Hon’ble Lahore Court has also held that unity of title and unity of possession must exist among the parties to a partition suit with respect to the property. Where a party impleaded asserts paramount or exclusive title, that plea negates unity of title and falls outside the purview of a pure partition claim. The Hon’ble Lahore High Court in another case4 has held that where a title dispute arises from the actionable cause in a partition controversy, the civil court properly allows the amendment of pleadings so that the core controversy over title and partition can be resolved within the same litigation.

7.Another circumstance relating to the partition suit/application requires clarification is that where a partition application with respect to an agriculture property is filed before the revenue hierarchy and in such a case if a party to the partition proceedings controverts the title of the property under partition then in such eventuality, the question of title could either be determined by the revenue hierarchy as per mandate of Section 141 of The Land Revenue Act, 1967, or it may refer the party before it to the Civil Court to establish its title first and thereafter approach the revenue hierarchy for 3 “Raja Muhammad Afzal vs. Malik Muhammad Moazam” (2003 MLD 884) 4 “Mian Muhammad Saeed vs. Mian Abdul Ghafoor” (PLD 2006 Lahore 456)

partition of such agriculture property. It may further be clarified that Section 172(2)(xviii) of The Land Revenue Act, 1967 excludes the jurisdiction of the Civil Court over a partition claim only where no question of title is involved. It may also be clarified that in a case involving a dispute over the title of the property, the same becomes a substantial question, whereas partition becomes an ancillary dispute. In the case5, the Hon’ble Apex Court has also held that that under Section 141 of the Land Revenue Act, when a question of title arises regarding the property sought to be partitioned, the Revenue Officer must either decline or stay the partition application until the title dispute is determined by a competent court, or himself adopt the procedure of a civil court to decide it. The Hon’ble Balochistan High Court in the case6 has held that Section 172 clause (2) (i) of the Act of 1967 empowers the Revenue Officer to resolve the issues in exclusion of the jurisdiction of the Civil Court, pertaining to the limits of a land, claim of a partition or any other question connected with or arising out of the proceedings of the partition, but sub-clause (xviii) of clause (2) of Section 172 of the Act of 1967 clearly excludes the jurisdiction of the Revenue Authorities, where question of title is involved. In the instant matter, since both the parties 5 “Muhammad Yusuf Khan vs. Board of Revenue and 12 others” (2002 CLC 739) 6 “Latif and others vs. Abdul Nazi and others” (2024 MLD 1937)

are contravening and repelling the stances of one and the other, which obviously cannot be decided without appraisal of the evidence, therefore, I am of the considered view that the Revenue Court is not competent to resolve such factual controversy, henceforth, the right forum for determination of the factual controversy lies only with the court of civil jurisdiction. This Court too in the case7 has held that the jurisdictional bar against civil courts entertaining partition claims operates only so long as the claimant’s title is not denied by co-sharers; once title is placed in controversy, determination of title belongs to the civil court.

8.It would also be relevant to mention here that any Court, who is seized of an application under Order VII Rule 11 CPC, has to see the contents of the plaint only and such contents of the plaint is to be taken and considered as true and correct. The learned trial Court though has made reference to the judgment of this Court titled “Assistant Director Mines and Mineral Department, Swabi vs. Fazal Sadiq and others” reported as 2022 CLC 1392 and has relied on the same while dismissing the application filed under Order VII Rule 11 C.P.C; however, it could not have correctly applied the spirit of the said judgment 7 “Khan Baz vs. Ranra Baz” (2016 CLC 831)

in its true letters. It may be reiterated and clarified that, while deciding an application filed under Order VII Rule 11 CPC, it is only the contents of the plaint which are to be taken into consideration and as such if the aforesaid yardstick is applied to the case of respondents No.1 to 6/plaintiffs then they have not disclosed anywhere in their plaint that as to how they are recorded as co-owners in the suit house as they have not produced any document; rather, their case is that the suit house had been constructed by Ghazi Marjan, who is the predecessor-in-interest of the petitioner, with the amount which has been earned from a joint business; therefore, such a controversial factum/plea of the case could not be threshed out in a suit for partition; rather, the proper course for the respondents No.1 to 6/plaintiffs was to have filed a suit for declaration and, as an ancillary relief, the partition of the suit house could have been prayed for; however, as as stated hereinabove that the instant suit has been filed solely for partition of the suit house, with respect to which the respondents No.1 to 6/plaintiffs have been unable to produce any document to establish that they are either owners or co-owners of the suit house; therefore, their suit, in its present form, could not proceed.

9.In view of the above discussion and exposition of law, this petition is allowed and

consequently, the impugned orders and judgments passed by the learned Civil Judge-XVI, Peshawar dated 10.01.2026 and that of learned Additional District Judge-II, Peshawar dated 15.07.2026 are set aside and as a result thereof, the plaint filed by the respondents No.1 to 6/plaintiffs stands rejected under Order VII Rule 11 CPC.

Announced:

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)