Co Sharer Is Not Necessary Party in Suit For Specific Performance

P L D 2023 Lahore 503
Before Muhammad Sajid Mehmood Sethi, J
MUHAMMAD YOUSAF---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, FEROZEWALA and others---Respondents
Writ Petition No. 30112 of 2021, heard on 5th October, 2021 *.
(a) Specific Relief Act (I of 1877)---
----S. 12---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for specific performance---

Un-partitioned property---Application for impleadment as necessary and proper party by co-
sharer---Scope---Petitioner sought enforcement of an agreement to sell against the defendant,
but the intervenor appeared with the stance that, as an owner in joint khewat, he should also
be impleaded in the suit---Validity---If petitioner succeeded in obtaining a decree of specific
performance, it would not harm the intervenor's ownership rights---Furthermore, there was
no legal obstacle to proceeding with the suit without including the intervenor and his
presence was not required to resolve the points of contention between the petitioner and the
defendant---Intervenor was neither necessary nor proper party to the suit and the application
for impleadment was dismissed---Constitutional petition was allowed.
Muhammad Baqar v. Mst. Ghulam Parwar and others 2017 SCMR 1062 ref.
(b) Civil Procedure Code (V of 1908)---
----O. I, R. 10---"Necessary party"---"Proper party"---Distinction---Party, without whose

absence a suit cannot be proceeded with and a final and binding decree cannot be passed, is
called "necessary party"---Person whose presence is necessary for the adjudication of all
issues and matters involved in the suit and whose interest in or against the relief or the
subject matter of the suit may be marginal, nominal, limited or none, is a "proper party"---
Person against whom no relief is asked for could hardly be a necessary party but may be a
proper party---Another difference between the effect of non-impleadment of a necessary or a
proper party is that a suit in which a necessary party is not impleaded, is bad while a suit in
which a proper party is not impleaded, is not bad.
Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011
SCMR 1591; Muhammad Ayub v. Lahore Development Authority and others 2000 MLD
1809; Lahore Cantt. Cooperative Housing Society Ltd. through Secretary v. Muhammad
Anwar and 11 others 2007 CLC 160; Muhammad Shaukat and others v. Ghulam Muhammad
and others 2013 CLC 135; Abdul Jabbar and 8 others v. Ghulam Mustafa and 6 others 2019
CLC 704 and Ali Asghar v. Raja M. Siddique and others 2021 CLC 1348 ref.
(c) Co-sharer---
----Partition---Rights of vendee from co-sharer regarding possession---Scope---Vendee

purchasing property from a co-sharer, who owns an undivided joint property, is clothed with
the same rights in the property, no more or no less than that of the vendor---If the vendor was
in exclusive possession of a certain portion of the joint land and transfers its possession to
the vendee, so long as there is no partition between the co-sharers, the vendee must be
regarded as stepping into the shoes of the transferor qua ownership rights in the joint
property, to the extent of the area purchased, provided that the area in question does not
exceed the share which the transferor owns in the whole property---Alienation of specific
portion to the vendee would only entitle the latter to retain ostensible possession till such
time as an actual legal partition by metes and bounds takes place between the co-sharers.
Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007
SCMR 1884; Zardad Khan v. Mst. Safia Begum 1998 CLC 2006; Abdur Rehman v.
Muhammad Siddique through L.Rs. 2006 MLD 442; Munawar Hussain and 2 others v.
Amanat Ali and 6 others PLD 2007 Lah. 83; Nisar Akbar Khan and 15 others v. Jamal Nasir
Khan and 4 others 2014 CLC 254 and Ansar Iqbal and others v. Muhammad Ahsan Khan and
others 2021 CLC 1394 ref.
Mian Asmatullah and Mian Khursheed Ali Zafar for Petitioner.
Sarfraz Ahmad Bhatti for Respondent No.3.
Nemo for Respondent No.4.
Research by: Muhammad Imran Sh., Addl. District Judge/Senior Research Officer,
LHCRC, Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC.
Date of hearing: 5th October, 2021.
JUDGMENT
MUHAMMAD SAJID MEHMOOD SETHI, J.---Through instant petition,

petitioner has challenged the vires of judgment dated 18.03.2021, passed by learned
Additional District Judge, Ferozewala, whereby revision petition filed by respondent No.4
against order dated 14.01.2021, passed by learned Civil Judge, Ferozewala, was accepted and
respondent No.4 was directed to be impleaded as party to the
suit.
2. Brief facts of the case are that petitioner filed a suit for possession through specific
performance of agreement to sell dated 25.09.2019 against respondent No.3. During
proceedings of the suit, respondent No.4 filed application under Order I Rule 10 C.P.C., for
impleading him as party to the suit, which was contested by petitioner as well as respondent
No.3 by filing respective written replies. Learned Trial Court, after hearing arguments from
both sides, dismissed the said application vide order dated 14.01.2021. Feeling aggrieved,
respondent No.4 assailed said order before learned Additional District Judge by filing
revision petition, which was allowed vide judgment dated 18.03.2021. Hence, instant
petition.
3. Learned counsel for petitioner submits that respondent No.4 has no locus standi to file
application to implead him as party. He adds that aforesaid application was filed with active
connivance of respondent No.3, who is his paternal uncle. He further submits that suit
property has already been partitioned through a family settlement among the co-sharers
including respondent No.4 much prior to agreement to sell in question and co-shares,
including petitioner and respondent No.4, are owners in possession of their respective shares.
He argues that petitioner has also raised constructions over his share by spending a huge
money from his pocket. He maintains that material aspects of the matter have not been
properly appreciated by learned Revisional Court, hence, impugned judgment is
unsustainable in the eye of law. He has referred to Muhammad Baqar v. Mst. Ghulam Parwar
and others (2017 SCMR 1062).
4. Conversely, learned counsel for respondent No.3 defends the impugned decision and
submits that learned counsel for petitioner has failed to point out any illegality or legal
perversity in the same.
5. Arguments heard. Available record perused.

6. In the instant case, petitioner has sought enforcement of an agreement to sell
according to which respondent No.3 allegedly agreed to sell his some landed property in
petitioner's favour. Respondent No.4 had appeared with the stance that being owner in joint
Khewat he was also to be impleaded in the suit. The question for determination before this
Court is whether in the given circumstances, respondent No.4 could be treated as necessary
or proper party to the lis. Needless to say that a party, without whose absence a suit cannot
be proceeded with and a final and binding decree cannot be passed, is called "necessary
party". A person whose presence is necessary for the adjudication of all issues and matters
involved in the suit and whose interest in or against the relief or the subject matter of the suit
may be marginal, nominal, limited or none, is a "proper party". A person against whom no
relief is asked for could hardly be a necessary party but may be a proper party. Another
difference between the effect of non-impleadment of a necessary or a proper party is that a
suit in which a necessary party is not impleaded, is bad while a suit in which a proper party is
not impleaded, is not bad. In the case in hand, if petitioner succeeds in getting a decree of
specific performance, it would not prejudice ownership rights of respondent No.4.
Furthermore, there is no legal hurdle in proceeding with the suit without impleading
respondent No.4 and his presence is also not necessary to settle points of controversy
between petitioner and respondent No.3, thus, he is neither necessary nor proper party to the
suit. Reference can be made to Muhammad Arif and others v. District and Sessions Judge,
Sialkot and others (2011 SCMR 1591), Muhammad Ayub v. Lahore Development Authority
and others (2000 MLD 1809), Lahore Cantt. Cooperative Housing Society Ltd. through
Secretary
v. Muhammad Anwar and 11 others (2007 CLC 160), Muhammad Shaukat and others v.
Ghulam Muhammad and others (2013 CLC 135), Abdul Jabbar and 8 others v. Ghulam
Mustafa and 6 others (2019 CLC 704) and Ali Asghar v. Raja M. Siddique and others (2021
CLC 1348).
7. It is settled law that a vendee purchasing property from a co-sharer, who owns an
undivided joint Khata, is clothed with the same rights in the property, no more or no less than
that of the vendor. If the vendor was in exclusive possession of a certain portion of the joint
land and transfers its possession to the vendee, so long as there is no partition between the
co-sharers, the vendee must be regarded as stepping into the shoes of the transferor qua
ownership rights in the joint property, to the extent of the area purchased, provided that the
area in question does not exceed the share which the transferor owns in the whole property.
Alienation of specific portion to the vendee would only entitle the latter to retain ostensible
possession till such time as an actual legal partition by metes and bounds takes place between
the co-sharers. Reference can be made to Syed Shabbir Hussain Shah and others v. Asghar
Hussain Shah and others (2007 SCMR 1884), Zardad Khan v. Mst. Safia Begum (1998 CLC
2006), Abdur Rehman v. Muhammad Siddique through L.Rs. (2006 MLD 442), Munawar
Hussain and 2 others v. Amanat Ali and 6 others (PLD 2007 Lahore 83), Nisar Akbar Khan
and 15 others v. Jamal Nasir Khan and 4 others (2014 CLC 254) and Ansar Iqbal and others
v. Muhammad Ahsan Khan and others (2021 CLC 1394).
8. In view of the above, instant petition is allowed and impugned judgment dated
18.03.2021, passed by learned Appellate Court is set-aside and order dated 14.01.2021,
passed by learned Trial Court is restored.
SA/M-17/L Petition allowed.

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P L D 2023 Lahore 503

Before Muhammad Sajid Mehmood Sethi, J

ADDITIONAL DISTRICT JUDGE, FEROZEWALA and others---Respondents

Writ Petition No. 30112 of 2021, heard on 5th October, 2021 *.

(a) Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for specific performance---

(b) Civil Procedure Code (V of 1908)---

----O. I, R. 10---"Necessary party"---"Proper party"---Distinction---Party, without whose

----Partition---Rights of vendee from co-sharer regarding possession---Scope---Vendee

Mian Asmatullah and Mian Khursheed Ali Zafar for Petitioner.

Sarfraz Ahmad Bhatti for Respondent No.3.

Nemo for Respondent No.4.

Date of hearing: 5th October, 2021.

MUHAMMAD SAJID MEHMOOD SETHI, J.---Through instant petition,

5. Arguments heard. Available record perused.

SA/M-17/L Petition allowed.

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