Updated: Monday April 22, 2013/AlEthnien
Jamada El Thaniah 12, 1434/Somavara
Vaisakha 02, 1935, at 06:40:35 PM
The
(Act IV of
2013)
C O N T E N T S
Section Heading
1. Short title, extent and commencement.
2. Limitation on scope.
3. Definitions.
4. Suit for partition of immovable property.
5. Appearance of defendants and consequence of
non-appearance.
6. Written statement.
7. Mesne profits pending adjudication.
8. Question of title or share.
9. Appointment of referee for partition.
10. Internal auction.
11. Open auction.
12. Mesne profits.
13. Private settlement.
14. Time limit for disposal of the suit.
15. Application of Act V of 1908.
16. Instructions of High Court.
17. Repeal.
[1][1]The
(Act IV of
2013)
[5
January 2013]
An Act to amend and reform the law relating to partition of
immovable property.
Preamble.– Whereas it is expedient to amend and reform the law
relating to expeditious partition of immovable property and to provide for
ancillary matters;
It is
enacted as follows:---
1. Short title, extent and commencement.– (1) This Act may be cited as the Punjab Partition
of Immovable Property Act 2012.
(2) It shall extend to whole of the
(3) It shall come into force at once.
2. Limitation on scope.– Nothing contained in this Act shall be deemed to
affect any law providing for the partition of agricultural land or land
subservient to agriculture.
3. Definitions.– (1) In
this Act,---
(a) “Code”
means the Code of Civil Procedure, 1908 (V of 1908);
(b) “Court”
means the Court of original civil jurisdiction competent to entertain and
decide suits for partition of immovable property;
(c) “immovable
property” means an immovable property, other than agricultural land or land
subservient to agriculture, jointly owned by two or more persons;
(d) “internal
auction” means the auction of the immovable property amongst the co-owners of
the property in which at least two co-owners are eligible to participate; and
(e) “mesne profits” means the approximate rental benefit which the
co-owner in possession of the immovable property gains to the exclusion of any
other co-owner during the pendency of the suit under the Act.
(2) An expression used in the Act but not
defined shall mean the same as in the Code.
4. Suit for partition of immovable property.–
An owner of immovable property may file a suit for partition of the property,
giving details of the property, citing all other co-owners as defendants and
attaching all the relevant documents in his reach or possession.
5. Appearance of defendants and consequence of
non-appearance.– (1) The Court shall issue notice to the defendants for
appearance on a date, not later than ten days, through the process serving
agency and registered post or courier service and,
where possible, also through electronic and telecommunication means.
(2) Copies of the plaint and the documents
annexed with the plaint shall be attached with the notice under subsection (1)
served through the process serving agency and sent by registered post or courier.
(3) If a defendant fails to appear
and the Court is satisfied that the notice has not
been served on the defendant or the defendant is willfully avoiding the service of the notice, the Court
may direct service of the notice by–
(i) affixing
a copy of the notice at some conspicuous part of the residence of the defendant; or
(ii) publication
in the press, electronic media or any other mode.
(4) If the defendant fails to appear on the
date fixed and the Court is satisfied that the notice had been duly served, it
may proceed ex-parte against such
defendant.
(5) If an ex-parte order is passed against a defendant, he may, within fifteen days from
the date of knowledge, apply to the Court for
setting aside the ex-parte order and
shall submit along with the application the written statement and attach with
such written statement copies of all the relevant documents in his reach or
possession.
(6) If the defendant submits the written
statement and shows sufficient cause for his non appearance, the Court may set
aside the ex-parte order on such
terms as it may deem fit.
6. Written statement.– (1)
Subject to section 5, a defendant in a suit for partition of immovable property
shall file the written statement within thirty days of his first appearance in
the Court and shall attach with the written statement
copies of all the relevant documents in his reach or possession.
(2) If a defendant fails to file the written
statement within the period mentioned in subsection (1), the Court shall strike
off his defence and in that event he shall not be entitled to lead any
evidence.
7. Mesne profits pending
adjudication.–
(1) On the first date of hearing or as soon as thereafter, the Court may,
pending adjudication of the suit, direct the co-owner, in possession of the
immovable property, to deposit, either on monthly or quarterly basis, such
interim mesne profits in the Court as it may determine on account of share of a
co-owner not in possession of the property.
(2) If an order under subsection (1) is
passed, the co-owner in possession of the property shall deposit the amount on
or before the date fixed by the Court and, in the absence of any such order, on
or before 15th of the month or the first month of the quarter for
which the amount is due.
(3) If the co-owner fails to deposit the
amount under this section within the time specified under subsection (2), the
Court shall–
(a) in
case he is plaintiff, dismiss his suit; and
(b) in
case he is defendant, strike off his defence and in that event, he shall not be
entitled to lead any evidence.
8. Question of title or share.– (1) When there is a dispute as to the title or
share in the immovable property, the Court shall decide such question before
proceeding further in the suit under this Act.
(2) The determination of a question of title
or share of the immovable property by the Court under subsection (1) shall be
deemed to be a decree in terms of the Code.
9. Appointment of referee for partition.– (1) If all the co-owners agree in writing on
partition of the immovable property through appointment of a referee, the Court
shall appoint a referee for partition of the property within such specified or
extended time as the Court deems appropriate.
(2) Subject to the restrictions imposed
under any law governing town planning, the referee shall decide whether the
immovable property is partible and if so, the referee shall propose partition
of the immovable property.
(3) Notwithstanding anything in subsection
(1) but subject to subsection (2), the Court may, on an application of one or
more co-owners who desires his or their shares in the immovable property
partitioned, appoint a referee who shall determine whether such share or shares
is partible and if so, he shall propose partition of the property to that
extent.
(4) The referee may, with the written
consent of two or more co-owners of the immovable property, combine the shares
of such co-owners in the proposal of partition.
(5) The Court shall affirm the proposal of
the referee for partition of the immovable property through decree unless the
Court is satisfied that the proposal is in contravention of any law.
(6) The Court may fix the fee of the referee
to be paid by the co-owners according to their respective shares in the
immovable property.
10. Internal auction.– (1) If on the date fixed by the Court for the
purpose, the co-owners fail to submit written agreement about the partition of
the immovable property through appointment of a referee or the referee is of
opinion that the property is not partible or the Court finds that the proposal
of the referee is in contravention of any law, the Court shall determine the
reserve price of the immovable property and direct sale of the property through
internal auction on the next date of hearing.
(2) The Court shall require the co-owners to be
present in person or through their authorized agents on the date of internal
auction.
(3) The internal auction shall be conducted in the
Court and the Court shall maintain record of internal auction which shall form
part of the suit.
(4) Any two or more co-owners of the immovable
property may submit their written offers or counter written offers until one of
them makes the highest written offer.
(5) The Court shall declare the highest bidder as
auction purchaser in internal auction and direct the auction purchaser to
deposit the auction price within fifteen days of the auction but the auction
purchaser may deduct from the auction price to be deposited such amount as
equals his share in the immovable property.
(6) If the auction purchaser deposits the auction
price under subsection (5) within the prescribed time, the Court shall confirm
the sale, put the auction purchaser in possession of the property and
distribute the auction price amongst the other co-owners according to their respective
shares.
(7) If the auction purchaser fails to deposit the
auction price under subsection (5) within the prescribed time, the Court shall
fix another date for internal auction but such auction purchaser shall not
participate in the subsequent internal auctions.
(8) The second or subsequent internal auction
shall be held, as far as possible, in accordance with the procedure contained
in this section for the first internal auction.
11. Open auction.– (1) If the co-owners refuse to participate in the internal
auction or only one co-owner shows his willingness to participate in such
auction or the internal auction under section 10 has failed, the Court shall
fix the reserve price of the immovable property and direct open auction of the
property.
(2) A co-owner of the immovable property may
participate in the open auction of the property.
(3) The Court shall appoint a court auctioneer for
conducting the open auction and fix fee of the court auctioneer to be paid by
the co-owners in proportion to their respective shares in the immovable
property.
(4) The court auctioneer shall submit in the Court
an auction plan in the form of a public notice which shall include detailed
specifications of the immovable property, the time, date and place of open
auction, and the amount of bid security for participating in the open auction,
and the Court may approve the auction plan with or without modification and
direct its publication in such manner as it deems appropriate.
(5) The court auctioneer shall conduct open auction
under the auction plan approved and published by the Court and direct the
highest bidder to deposit–
(a) earnest money equal to twenty per cent of the bid price immediately
on the close of bidding; and
(b) the remaining amount of the bid price in the court within seven
days.
(6) The court auctioneer shall maintain the record
of the auction proceedings and return the bid security to unsuccessful bidders
but shall adjust the bid security of the highest bidder in the bid price.
(7) The court auctioneer may, in an appropriate
case, accept deposit under clause (a) of subsection (5) in the form of cash,
crossed cheque, demand draft or banker’s cheque against a receipt.
(8) The court auctioneer shall, immediately after
conclusion the auction, deposit in the Court the auction price collected by him
along with the auction report.
(9) If the highest bidder deposits the auction
price under subsection (5), the Court shall confirm the sale, put the highest
bidder in possession of the property and distribute the auction price amongst
the co-owners according to their respective shares.
(10) If the highest bidder fails to deposit
the auction price under subsection (5), the amount deposited by him shall stand
forfeited and the immovable property shall be put to open auction again, as far
as possible, in accordance with the procedure contained in this section.
12. Mesne profits.– (1) Subject to sections 10 and 13, the Court may,
at the time of final settlement, award mesne profits to a co-owner not in
possession of the joint immovable property by deducting the same from the share
of the co-owner in possession of the property or by directing the co-owner in
possession of the property to pay the same to the co-owner not in possession of
the property.
(2) The Court shall, while awarding mesne profits
under subsection (1), take into account the interim mesne profits deposited
under section 7.
13. Private settlement.–(1) All the co-owners of the immovable property may,
at any stage of the proceedings before the date of open auction of the
property, submit a private settlement in the Court.
(2) If the co-owners submit the private settlement
under subsection (1), the Court shall pronounce judgment and decree in terms of
the private settlement and cancel the order of open auction if already
passed.
14. Time limit for disposal of
the suit.– (1)
The Court shall finally dispose of the suit under this Act within six months
from the date of the institution of the suit, failing which, the Court shall
submit the case to the District Judge, with cogent reasons, seeking extension
of time for disposal of the suit.
(2) The District Judge may, subject to such
conditions as he deems appropriate to impose, grant extension in time to
dispose of the suit taking into consideration the facts and circumstances of
the case.
15. Application of Act V of 1908.– Subject
to this Act, the provisions of the Code shall apply to any proceedings under
this Act.
16. Instructions of High Court.– The Lahore High Court may issue instructions
necessary for purposes of the Act.
17. Repeal.– (1) The Partition Act, 1893 (IV of
1893) is hereby repealed.
(2) Notwithstanding
the repeal of the Partition Act, 1893 (IV of 1893) and without prejudice to any previous proceedings in a suit,
the suit for partition of immovable property pending in any court under the
repealed Act shall be proceeded with and decided by the Court in accordance
with the provisions of this Act.
[1][1]This Act
was passed by the Punjab Assembly on 27 December 2012; assented to by the
Governor of the
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