Preliminary decree in partition suit of immovable property determines the rights/shares of as many parties as interested in the property.

 Preliminary decree in partition suit of immovable property determines the rights/shares of as many parties as interested in the property. However, the question, as to whether a property is joint one, is to be determined prior to preliminary decree. A preliminary decree only comes out as a consequence of determination of substantive rights of the parties. The Court while passing preliminary decree after determination of right and share of each party in a partition suit of immovable property appoints local commission to prepare the mode of partition/divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order.

Local Commission has no power to determine the right/share of any party to suit for partition of immovable property, it is appointed only to prepare the mode of partition at the spot in view of the shares determined by the Court in preliminary decree. The local commission cannot assume the role of the Court, rather only can propose the allotment of specified share to the parties determined in preliminary decree. In present case mode of partition was prepared on the basis of preliminary decree wherein shares of the parties have not been determined, to be given during mode of partition, such mode of partition is not sustainable. Local commission has not appeared in support of its report which was tendered as “Mark-C”. “Naqsha Jeem” was also prepared in this case illegally by the local commission which is prepared by the revenue official i.e “Girdawar”, on the direction of Assistant Collector/Revenue Officer after acceptance of application for partition of joint agricultural land and was tendered as “Mark-D”. The law is settled by now that the document, which has not been produced and proved in evidence but only marked, cannot be taken into account as a legal evidence of fact by the Courts.

Civil Revision No.364-D of 2010
Zia ud Din etc. Versus Malik Humayun Irfan etc.
Civil Revision No.531 of 2009
Malik Aamir Ali Khan Versus Malik Humayun Irfan etc.
Date of hearing: 27.09.2022