The Punjab partition of immovable property act of 2012 governs the suit of possession through partition. That’s why partition suit draft is provided here. This Punjab partition of immovable property act of 2012 is applicable only in the Province of Punjab though this is a special law but all the provisions of code of civil procedure 1908 also applicable on it. The concept of Property possession through partition suit is recognized even in the famous legal maxim. Which says that;
Nemo in Communione potest invitus detineri
Which means that no one can be kept in co-proprietorship against his will. Partition is merely an arrangement in which co-sharers having undivided interest in joint properties take their by arranging specific properties.
In the suit for possession through partition there is no loser or winner. Rather both parties are to be called winner because property is divided respectively among co-sharers. But if the possession of the property is in the hands of tress-passer, then he can be loser of partition suit.
How Property is Divided in Suit for Partition and Possession
For the purpose of partition law divides the suit property is three types;
- Pure Agricultural Properties,
- Agricultural and Constructed mixed properties, and
- Pure Constructed Properties (in the shape of houses, shops, markets and etc).
Remember revenue authorities in Pakistan has the exclusive right to decide the suit for partition and possession relating to agriculture. But where suit for separate possession is half agriculture and half constructed, then it will be examined which type of property has a major portion. If it’s agriculture then file a suit for partition and separate possession draft in revenue court other wise ordinary civil court have the jurisdiction to entertain the matter.
How To File Partition Suit in Civil Court
You can start this particular civil suit in ordinary civil court. For that format of plaint in suit for partition is given below. All Suit for partition involves two main stages, that is;
- Preliminary decree or stage
- Final decree or stage
When a mesne profits in partition suit with possession id filed in court. The court first hears initial arguments and then issue notices to opposite party. When both party appear at next date trial Court starts with examining the question of jurisdiction, the entitlement of parties as co-sharer. Court also analysis the merits of the case. Where the court thinks that plaintiffs case is made out on true assertion. It immediately determines the shares of the parties in joint property.
In second stage which consists on pronouncing final decree. The court receives the application from decree holder requesting therein to announce final decree in favor. The decree holder also send legal notice to respondent on which opposite may submit it’s reply. Then court in order to settle the controversy between parties appoint local commission u/s 75 of CPC. But the party also has the option to file application to appoint local commission.
That commission visit the suit property and then submits report in court asserting whether the property is partition able or not. If the property is by nature cannot be divided then commission evaluates the market price of property. The court relying on local commission report orders the property to be sold and proceeds are then divided between co sharers. On the other hand id the property is partition-able then court orders the property to be divided among parties according to their shares.
What is Meant by Mesne Profit:
In law mesne profit means the benefits whether rental or others derived from the property in possession of the co-owner to the exclusion of any other owner. In the suit of possession through partition with mesne profit court can issue an interim order to deposit all the mesne profit in the court till the case is decided. This mesne profit will be distributed among all the co- shares according to their share.
Ex-Parte decree in The Suits for Partition of Property in Pakistan
After filing draft of partition suit in court under this act the defendant has 30 days time to submit his written statement in the court Subject to sending him notices. If the notices are delivered and defendant did not appear or 30 days time has been expired than the court can proceed ex-parte against the defendant.
The defendant can within 15 days after ex-parte decision can come in the court to set aside this order, but he has to submitt his justification as to why he did not appear on prescribed time.
Time Limit For Disposal of Suit Under The Punjab Partition of Immovable Act 2012
The law has fixed 6 month time during which the cases under this act has to be disposed off. If the case is not disposed of during that time than the court has to submitt the case to the District judge, he can extend time if he deems fit.
Format of Suit For Possession Through Partition
Following is the for sample suit for partition format in which possession through partition and with mesne profit is claimed. You can use this draft of suit for possession through partition by making necessary changes.
IN THE COURT OF LEARNED SENIOR CIVIL JUDGE, RAWALPINDI
In the matter of;
Housband ABC D/o def, R/o House No: 000, Street No:000, Sector: 000, Rawalpindi
- Wife ghi S/o Jkl R/o House No: 00, Street No:00, Sector 00, Rawalpindi
- Relative S/o ghj R/o sss.mmm.mmmm, Rawalpindi
- Relative S/o fff R/o sss.ccc.cccc, Rawalpindi
SUIT FOR POSSESSION THROUGH PARTITION WITH MESNE PROFIT
- That the plaintiff is law abiding citizen of this country and for earning livelihood went to England in the year 1992.
- That in the year 1994 the plaintiff solemnized marriage with the defendant and after marriage again returned back to England. Thereafter the plaintiff settled the defendant in England.
- That during the stay in England the plaintiff has been sending an handsome amount to the defendant no. 1 & 2 because at that time the relations between the spouses were very cordial and cooperative.
- That the plaintiff through defendant no. 1 & 2 purchased a house measuring 07 marlas situated in _______, Rawalpindi and executed registered sale deed No. ___ dated ______ in the both names of plaintiff and defendant no 1 through defendant no 2, who is real brother of defendant no 1 (brother in law of plaintiff). Copy of registered sale deed is attached herewith.
- That the actual facts of the matter are that the plaintiff is absolute owner of the above said house. Plaintiff has been sending the total money from England from his handsome salary due to love and affactions for his wife/defendant No.1. The executed registered sale deed is in my name as well as in the name of his wife. At the time of purchase of the above said house there was only ground floor which was buit there but after that plaintiff spended huge amount and constructed first and second floor.
- That the original registered sale deed of the above said house is in the possession of the defendant No.1. This said house has been let out to the defendant no.3 who has been paying Rs:15000/- pm for two years to the defendant No 1 & 2 and after the construction of the 2nd and 3rd floor this rent is enhanced up to Rs:30000/-pm.
- That the defendant No. 1 is morally and legally bund to pay half rent of the above said house to the plaintiff, which she is receiving from defendant No. 3.
- That the plaintiff time and gain requested the defendant No.1 for partitioning the house to the extent of his respective shares and the plaintiff also requested the defendant to pay the half rent to the plaintiff. But she refused to do so, hence this suit.
- That the cause of action firstly accrued to the plaintiff on _____ when the defendant No.1 filed a suit against the plaintiff and finally two weeks earlier when she flatly refused.
- That the value of the suit for the purpose of court fee and jurisdiction is fixed at Rs:50,00,000/- approximately. And the plaintiff is ready to pay the court fee as per order of the court.
- That the parties reside in Rawalpindi and suit property is also situated in Rawalpindi, hence this honorable court has jurisdiction to entertain and adjudicate upon the matter.
It is therefore respectfully prayed that the decree for partition through possession of the double story house constructed on 07 marlas situated in ______, Rawalpindi, be passed in favor of the plaintiff as against the defendants with cost.
It is further prayed that a decree for half rent as mesne profit according to total rent already has been receiving by the defendant No.1 may be passed in favor of the plaintiff as against the defendants.
Verified on oath at Rawalpindi on this day __ of ___ 2016, that the contents of paras 1 to 8 are correct to the best my knowledge and belief and rest of the paras are believed to be true and correct as information received.