Tuesday, 19 November 2013

PLJ 2013 Peshawar 177
Present: Shah Jehan Khan Akhunzada, J.
Mst. MEHR AFZOON--Petitioner
versus
Mst. KHATOON etc.--Respondents
C.R. No. 442 of 2011, decided on 18.3.2013.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Partitioned of property--Appointment of local commissioner--Object was raised on report--Report was confirmed--Trial Court without recording statement of local commission, straightaway confirmed report of local commission--Validity--It was bounded duty of trial Court that before disposing of objection petition raised by petitioner on report of local commission, to record same evidence of objectors and also record the statement of local commission--Trial Court had not given any opportunity to cross-examine local commission by the parties--Case was remanded to trial Court for appointment of fresh local commissioner.            [P. 179] A
Mr. Shahbaz Khan, Advocate for Petitioner.
Mr. Barkatullah Khan, Advocate for Respondents.
Date of hearing: 18.3.2013.
Judgment
This revision petition has been directed against the judgment and order dated 7.1.2011 passed by the learned Addl. District Judge-VI, Peshawar whereby she while accepting the appeal filed by the Respondents No. 2 to 7, set aside the judgment and order dated 29.5.2010 passed by Civil Judge-XXIV, Peshawar and remanded the case back to the trial Court with the direction to depute a fresh local commission.
2.  Short and essential facts leading to the disposal of the instant revision petition are that on the application of the petitioner the revenue Court partitioned the property among the petitioner and Respondent No. 1 and Mutation No. 464 in this regard was attested which was challenged by Respondents No. 2 to 7 in a civil Court. During the pendency of the suit, two applications were filed, one by Respondents No. 2 to 8 to withdrawn their claim against Respondent No. 1 and the other by the petitioner for rejection of the plaint which were accepted by the trial Court and the plaint was rejected vide judgment and order dated 26.9.2008 against which an appeal was preferred before the learned Addl. District Judge-XI, Peshawar who vide his judgment and decree dated 8.4.2009 accepted the same, set aside the judgment and decree dated 26.9.2008 and remanded the case to the trial Court with the direction to proceed with the same and decide it in accordance with law on its own merit. The present petitioner filed revision petition bearing No. 385/2009 before this Court and vide judgment and decree dated 20.7.2009 this Court has disposed of the revision petition in the following manner:--
"To resolve the dispute once for all between the parties who are brothers and sisters being descendant of Anwar Khan, the learned trial Judge is directed to appoint a commissioner, who is well servant with the revenue matters and get the share of the petitioner partitioned at the spot within shortest possible time preferably within three months on receipt of record. It is mentioned that once before while disposing of W.P. No. 385/2007 vide order dated 12.3.2008, almost similar directions were given by this Court to the trial Court but it appears that these were not attended to in letter and spirit This time it is expected that it shall be given heed to settle down the controversy between the parties, at the earliest.
3.  After the remand of the case, the learned trial Court in compliance of the aforesaid orders of this Court, appointed Tehsildar as local commissioner with the direction to visit the spot and effect partition between the parties who submitted his report which was objected to by the Plaintiffs/Respondents No. 2 to 7 and after hearing the learned counsel for the parties the learned Civil Judge-XXIV, Peshawar vide order dated 29.5.2010 confirmed the report of commissioner and the file was consigned to the Record Room. The petitioner preferred revision petition against the aforesaid order which was accepted by the learned Addl. District Judge-VI, Peshawar vide judgment and order dated 7.1.2011, the judgment and order dated 29.5.2010 of the trial Court was set aside and the case was remanded back to the trial Court with the direction to depute a fresh local commission. Hence, the instant revision petition.
4.  I have heard the learned counsel for the parties and have gone through the available record of the case.
5.  Perusal of the record would show that after submission of the report of the local commission, the same was objected to by the petitioner but the trial Court has not considered the objections and without recording the statement of local commission, straight away confirmed the report of local commission. It was a bounded duty of the trial Court that before disposing of the objection petition raised by the petitioner on the report of local commission, to record some evidence of the objectors and also record the statement of the local commission. The trial Court has not given any opportunity to cross-examine the local commission by the parties. Therefore, the learned appellate Court has rightly remanded the case back to the trial Court for appointment of fresh local commission and I find no illegality or irregularity in the impugned judgment and order of the learned appellate Court.
6.  Resultantly, this revision petition being devoid of any merit is hereby dismissed.
(R.A.)  Petition dismissed
PLJ 1999 Karachi 181
Present: MUSHTAQ AHMAD MEMON, J. FAIZOO and others-Appellants
versus
RAEES BAQAR, KHAN and others-Respondents
F.A. No. 25 of 1980, decided on 24.9.1997.
(i) Administration of Jwstiee-
—Any step which advances justice could always be adopted; in absence of specific powers and procedure, inherent powers could always be invoked.
[P. 185] A
AIR 1927 All. 716; AIR 1942 Bom. 338 and!970DLC817re/:
(ii) Civil Procedure Code, 1908 (V of 1908)-
—O.XXVI, R. 6--Sindh Chief Court Rules (O.S.), R. 131-For assessment of mesne profits-Report of commission appointed by Court-Status-No, objection was filed by any of the parties-Appellants had failed to avail opportunity to question the same during proceedings-Such report having been found to be proper was lawfully approved by Trial Court.
[PI. 185 & 188] B & C
(iii) Civil Procedure Code, 1908 (V of 1908)-
—Ss. 2(12) & 115-Grant of mesne profits for period of three years prior to date of institution of suit-Status-Plaintiffs would have been entitled to mesne profits for period of three years prior to institution of earlier suit i.e. from 31.7.1946, since possession of land in question was delivered by plaintiffs on 29.4.1971 and in view of permission granted to them vide judgment of Court for filing separate suit for mesne profits, such period ought to have been treated as period of suspension of the right to sue for the same-Failure of plaintiffs to file cross-objections-Modification in decree refrained-Decree and judgment of Court below were maintained.
[Pp. 188 & 189] D
Mr. M.M. Aqil Awan, Advocate for Appellants.
Nemo for Respondents.
Dates of hearing: 26 & 28.5.1997 and 14.3.1997.
JUDGMENT
Through this appeal preferred under Section 96 of the Code of Civil Procedure, the appellants have assailed the judgment dated 28.6.1978 and the final decree dated 22.3.1980 passed in Suit No. 105 of 1970 by the Senior Civil Judge, Gambat whereby the suit filed by the respondents have been decreed for a sum of Rs. 1,07,044.
The facts leading to the present proceedings, briefly stated, are that the Respondents Nos. 1 and 2 had filed Civil Suit No. 5 of 1946 seeking decree for possession of agricultural land measuring 190.34 acres and for mesne profits for the period from 1937. It was averred in the plaint that the subject land was ancestral property of the respondents and the appellants had taken over physical possession thereof through trespass on 15.7,1937. After appreciation of evidence, as was produced by the parties, the suit was decreed with costs on 30.4.1956 by the First Class Sub-Judge, Khairpur Mirs, for possession only. As regards claim for mesne profits, it was observed that the respondents could bring a separate suit. The decree was challenged through Civil Appeal No. 17 of 1956 before the erstwhile High Court of West Pakistan, which was re-numbered as Civil Appeal No. 18 of 1962 upon transfer to the District Judge, Khairpur Mirs. Eventually, on 14.1.1964, the appeal was dismissed and Second Appeal No. 70 of 1964 preferred before the High Court of West Pakistan was also dismissed on 15.11.1968. Thedirection with regard to filing separate suit for mesne profits was also not modified at any stage. In the meantime, on 2.5.1956, Execution Application No. 14 of 1956 was preferred by the Respondent No. 1 and on 29.4.1971, the respondents were put in possession of the subject land. Before the respondents got possession, as above, on 25.5.1970 Suit No. 105 of 1970 was filed by them claiming mesne profits with effect from 15.7.1937. The suit was subsequently re-numbered as 26 of 1976. On 18.12.1975, the matter was ordered to proceed exparte against the appellants. On 18.2.1976, affidavit in exparte proof was filed by the respondent No. 1. In such affidavit, as to the amount of mesne profits the following averments were made :
That I have tentatively shown the value of mesne profits as Rs. 16,000. But it is a question of determining the mesne profits by actual cultivation of the survey numbers in each crop, a separate application is being under Order 26, rule 14 and Section 151, C.P.C. for determining the actual mesne profits."
This was followed by affidavit of one Ghulam Muhammad who was apparently managing the lands of the respondents as an employee, wherein net profit from the subject land was claimed as Rs. 20,000 to Rs. 25,000. On the basis of the unchallenged material produced by the respondents, as above, judgment and preliminary decree dated 28.6.1976 was passed. However, the learned Judge found that Article 109 of the Limitation Act was applicable to the case and awarded mesne profits for a period of 3 years from 25.5.1970 when the Suit was filed up to 29.4.1971 when possession of the subject land was handed over to the respondents. Mr. Abdul Sattar Dosi, Advocate was appointed as Commissioner to ascertain quantum of actual profits received by the appellants severally or collectively through local investigation and to submit report. On 15.1.1978, the above named Commissioner submitted his report after visiting the subject land and recording statements of the concerned persons and neighbouring land owners. The Learned Commissioner on the basis of the investigation conducted by him worked out the approximate amount of total income and after deducting therefrom the approximate amount of expenditure and share of cultivator (Hari) reported that a sum of Rs. 1,07,044-11-00 was due from the appellants as mesne profits for the period from 25.5.1967 to 29.4.1971, The learned Commissioner also gave breakup of the amount of mesne profits worked out by him as was due from the seven appellants and one Ghulam Hyder. It appears from record that on 7.3.1978 statement was filed by the Advocate for the appellants in the following terms :
"It is stated that Ghulam Haider and Rasool Bux defendants in the suit have died long ago."
Pertinently, the actual date of death of Ghulam Haider and Rasool Bux was not mentioned so as to determine if they had died before promulgation of Land Reforms Ordinance 1972 or thereafter. However, in the absence of any material on the record, I would proceed on the assumption that such persons expired after the amendment in the provisions of Order 22, Rules 3 and 4, C.P.C. with the result that the proceedings did not abate. On 12.6.1979, the above-named Commissioner was examined but it appears that he was not cross-examined on behalf of appellants despite their representation through one Mr. S. Hassan Imam, Advocate who had field Vakalatnama on 5.12.1978. It appears from the record that applications were then filed by some of the appellants under Order 9 rule 13, C.P.C for setting aside the exparte judgment. However the record does not show if any order was passed on such applications. On 22.1.1980, the matter came up forhearing in respect of the report submitted by the Commissioner when the Learned Senior Civil Judge, Gambat, after consideration of the report passed order in the following terms :
"2. Mr. Zaheer Hassan learned counsel for plaintiff/decree-holder has submitted that since the defendants/Judgment debtor have failed to file any objection within 10 days of service of notice on them of the filing of report by Commissioner as required under rule 131 (2) of Sindh Civil Court Rules, therefore, the report has become final and now no exception can be taken on it. Mr. Zaheer has further contended that even on merits the report submitted by the Learned Commissioner is very elaborate and exhaustive and the Learned Commissioner has worked out very mainute details and has considered each and every aspect of the matter, such as the cost of expenses and other allied matters. I have gone through the report of Learned Commissioner and I am of the view that no exception can be taken to the report submitted by the learned Commissioner and, thus, the report submitted by Learned Commissioner is approved. The suit is decreed in terms thereof and a final decree should be prepared accordingly. The plaintiff has paid court-fee on the amount of Rs. 16,000 only, therefore, deficit amount of the court-fee on theremaining amount would be first charge on the decree. The total amount of mesne profits comes to Rs. 1,07,044. The Learned Commissioner has been paid fee of Rs. 200 already only tentatively. The learned Commissioner is allowed commission fees at the rate of 2-1/2% on the total amount of mesne profits. Rs. 200 already paid to the Learned Commissioner should be deducted from the total amount of commission fees."
On the basis of findings as above, final decree was passed on 22.3.1980 in the sum of Rs. 1,07,044-11-00 which has been challenged as above in the presentproceedings.
Mr. M.M. Aqil Awan appearing on behalf of the appellants has urged as follows :—
(i) Filing of suit for mesne profits in the year 1970 was barred by the provisions of Order 2, Ride 2, C.P.C. in view of the earlier proceedings in Suit No. 5 of 1946.
(ii) The impugned judgment and decree for mesne profits shows that the primary ingredients for grant of mense profits were neither alleged nor established by the respondents.
(iii) The report of the Commissioner, is illegal and beyond scope of reference/preliminary decree.
Elaborating his first submission, the learned counsel for the appellants has urged that the respondents has filed Suit No. 5 of 1946 for possession and mesne profits in respect of the subject land. The mesne profits were claimed with effect from 15.7.1937. The matter was contested and by Judgment dated 30.4.1956, the suit was decreed with cost for possession of land. According to the learned counsel, the prayer for grant of mesne profits is to be treated to have been declined. The learned counsel further submits that the observation contained in the Judgment dated 30.4.1956 permitting the respondents to file separate suit for mesne profits could not lawfully be granted and in any event, cannot be considered a justification for bye-passing or circumventing the provisions of Order II, Rule 2, C.P.C. The learned counsel in support of his submission has referred to Judgments in the case of
(a)             (GoswamV Gordhan Lalji Mahraj v. Bishamber Nath (AIR 1927 Allahabd 716);
(b)             Channappa Cirimalappe Golad v. Sagalkot Bank, (AIR 1942 (29) Bombay 338 and
(c)             Province of East Pakistan v. Upendra Narayan Lala and others (1970 DLC 817).
Instead of referring to each of the above referred cases cited by the Learned Counsel for the appellants, suffice to observe that the dictum laid down in the above cases is not applicable to the present case for the reason that the facts involved in the present case are different from those in the cited Judgments. Indeed the provisions or Order II, Rule 2, C.P.C. would have barred the respondents from brining fresh suit for mesne profits if such prayer had not been made in the earlier proceedings. It is significant to note that the respondents had specifically pleaded the necessary details and sought decree for specific performance in Suit No. 5 of 1946. The provisions of Order n, Rule 2, C.P.C. manifestly do not apply to the present case. As regards grant of permission to bring separate suit for mesne profits, through the reason to justify such observation has not been stated in the Judgment dated 30.4.1956, the logic for such observation is not for from reason since the respondents would have been entitled to mesne profits up to the date of restoration of possession and though a decree for mesne profits could have directly been passed by the learned Senior Civil Judge who had passed Judgment dated 30.4.1956, he had considered it more appropriate to permit filing of separate proceedings in that behalf. Any view contrary to the above would amount to entrapping the respondents into technicalities. Any step which advances justice can always be adopted and in the absence of specific powers and procedure, inherent powers can always be invoked. Reference may be made to the Judgment in Imtiaz Ahmad v. Ghulam All (PLD 1963 SC 382), herein following observation was made which has consistently been followed:
 .................. the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy................... system which by giving effect to the form and not the substance defeats substantive rights (and) is defective to the extent."
The Learned Civil Judge, in exercise of inherent powers vesting in the Court, could permit filing of separate suit. Obviously the direction for Sling separate suit had brought inconvenience, if any, to the respondents who would have got their relief much earlier and in the very proceedings when decree for possession was passed. Moreover, another reason which might have weighed with the learned Civil Judge for putting the respondents' to another round of litigation could be that grant of mesneprofits would have resulted in passing preliminary decree and for such reason decree for possession would have been delayed exposing appellants to long-period and obviously, larger amount of mesne profits. In any event, a B party cannot be made to suffer on account of act of the Court. The Judgment dated 30.4.1956 was affirmed up to the stage of second appeal by a Bench of the erstwhile High Court of West Pakistan and in the event of any illegality, the judgment dated 30.4.1956 would not have sustained. The point urged by the learned Counsel for the appellants, thus, is without force and is repelled.
In support of next contention, the learned Counsel has first referred to definition of the term mesne profits as appearing in Section 2(12) of the Code of Civil Procedure which for the sake of convenience is reproduced as foDows :-
"(12)'mesne profits' of property means those profits which the person  in wrongful  possession  of such  property  actually received or might with ordinary deligence has received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession :"
It is submitted by the learned counsel that in order to claim mesne profits, a plaintiff is required to show that the subject property was in wrongful possession of another person and cannot include profits due to improvements made by such person. It is urged by the learned Counsel that the two affidavits Exh : 28 and Exh : 31 did not contain even an averment that the subject land was in wrongful possession of the appellants. The learned Counsel has referred to Judgment in the case of House Building Finance Corporation v. Mrs. Sarwar Jehan reported in (PLD 1993 Karachi 21), wherein it was held that mesne profits are recoverable only from the person in wrongful possession of the subject property.
The affidavits Exh. 28 and Exh. 31 are to be read alongwith plaint which was duly ve ified arid the othei 'documentary evidence as has come on record. The plaint in Suit No. 105 of 1870 in Paragraphs 2, 7, 8 and 9 contains reference to previous proceedings in Suit No. 5 of 1946 and the pleadings and Judgment in such proceedings have been produced in evidence. The above documents do show tr-at the appellants were found to have trespassed over the subject land and were in wrongful possession thereof. The decree for possession Tvas passed in consequence of the said finding. The pleadings and the evidence, in the present case, thus sufficiently establish that the appellants were in unauthorit 8d and wrongful possession of the suit property and were cultivating the same earning profits therefrom. The learned Counsel for the appellanc, therefore, is not correct in asserting that there was no material before that learned CiviJ Judge, who has passedthe impugned Judgment and decree, to hold that the appellants were in wrongful possession of the subject land. As regards ;he judgment in House Building Finance Corporation case, cited by the learned Counsel, the peculiar facts involved therein make it distinguishable. However, the dictum laid down by the learned Single Judge of this Court who had decided the abovecited case supports the respondents in the present case for the reason that the appellants were in wrongful possession of the subject land arid the mesne profits are recoverable from them. As to the second aspect of the arguments that the respondents cannot have the profits which were earned due to the improvements made by the appellants, I may note that there was no evidence on the record to show that the appellants had carried out any improvements. In the result, I do not feel inclined to upset the impugned Judgment and decree on the basis of second contention of the learnedCounsel for the appellants.
3. As to his final contention, the learned Counsel submits that the local Commissioner had admittedly failed to give any notice to the parties before inspection of the subject land. It is further urged that the learned Commissioner had relied on the data provided to him by Khan Muhammad and Pir Bux who were owners of land in the adjoining deh. The learned Counsel submits that the absence of any material to show that owners of land in the same deh were not available, reliance cannot be placed upon the figures provided by the abovenamed landowners. The Learned Counsel further submits that the report of the Learned Commissioner has mechanically been followed in drawing the final decree. It is further urged by the learned Counsel for the appellants that evidence regarding quantum of mesne profits should have been recorded by the Court itself and the date collected by the Commissioner on the basis whereof report was prepared could not be taken into account. The grievance further urged by the Learned Counsel for the appellant is that the said course adopted by the learned CivilJudge amounts to abdication of the powers of Court in favour of the Commissioner. The learned Counsel in support of his above submission has referred to the following judgments :
1.                   Muhammad Bakhsh v. Nazim Din (PLD 1978 Lahore 31).
2.                   Muhammad Juman and others v. Mst. Aqlan and 2 others (PLD 1980 Karachi 108).
3.                   N.M. Khan and others v. Dr. Abdur Rauf and others (1980 SCMR 528).
4.                   Land   Acquisition    Collector,    Abbottabad    and    others    v. Muhammad Iqbal and others (1992 SCMR 1245).
In the first case, it was held that the law does not allow delegation of powers by the Court to the Local Commissioner to decide material issues and that the report of the Commissioner cannot be considered to be final. It is merely in the nature of proceedings of an inquiry, for the information of the Court after which the Court is bound to give its own findings (s) on each and every issue. In the present case, however, the material issues were decided by the Court itself and the Commissioner was appointed only to collect information with regard to the mesne profits as could be granted to the respondents. The cited judgment, therefore, does not help the appellants.
In the second case, the request by one of the parties for inspection of subject land to determine as to who was in possession thereof was declined and the contention questioning such order was repelled in the following terms by Zafar Hussain Mirza, J. (as he then was):
"8. Mr. Fazeel lastly contended that the impugned orders are bad in law as the request of the applicants for inspection of the land to determine as to who was in possession thereof submitted under Order XVIII, Rule 18, C.P.C. was not considered by the trial Court and was rejected for uncogent reason by the Appellant Court. I find no substance in his contention. It is well-settled that a Court only decides a matter on the basis of evidence on record and not on its view or impressions evidence and in the matter of possession of agricultural land such  inspection will be of no value. AM enquiry conducted at the site by a Court would obviously be improper and contrary to law unless the parties agree to be bound by such procedure."
The above judgment also does not help the appellants.
In the third case, the local Commissioner appointed for demarcation if boundary line, had proceeded to devise a more equitable way of dividing he house which was not approved, being in deviation of the direction issued >y the Court. Such contention, patently, has no bearisig in the present case.
In the last case, local Commissioner was appointed for assessment of unount of compensation under Section 28 of Land Acquisition Act. Jbviously Section 23 of the Land Acquisition Act invests such power unto he Court, and therefore, it was held by the Honourable Judges of the Supreme Court that appointment of local Commissioner for determination of :ompensation amounted to abdication of the power of the Court in favour of Commissioner which was improper and illegal. Again, this case does not ipply to the present matter since the Court had lawfully exercised its power o hold that the appellants were liable formesne profits and after submission if report by the Commissioner, the learned Civil Judge had applied his mind o the terms of the report. As to the question of notice, suffice to observe that he Commissioner had not issued notice to either of the parties. The equirement for issuance of such notice would have become important, had he report of the Commissioner been taken on record and adopted within urther proceedings. In the present case the Commissioner had examined dmself and could be cross-examined by both or either of the parties. Indeed le was cross-examined by the learned counsel for the appellants. The record urther shows that all the parties were provided ample opportunity to lubmit their objections to the report of the Commissioner. However, despite 'equirement of rule 131(2) Sindh Civil Courts Rules no objections were filed ind the report having been found to be proper and lawful was approved by he learned Civil Judge through order dated 22.1.1980. The above-referred >rder dated 22.1.1980 shows that the report was not adopted mechanically ind the appellants had rather failed to avail the opportunity to question the same during the proceedings. In appeal, party cannot be permitted to fill up acunas and its short-comings. What is required to be see is as to whether on lie material available before the Court, the finding was properly and lorrectly reached ? The learned counsel for the appellants has failed to showiny such defect or error in the impugned judgment and decree. I may )bserve here that the mesne profits have been allowed to the respondents by he learned Civil Judge for a period of 3 years prior to date of institution of he suit. In my view, the respondents would have been entitled to mesne >rofits for the period of 3 years prior to institution of the earlier Suit No. 5 of 1946 i.e. from 31.7.1946 since possession of the subject land was delivered to he respondents on 29.4.1971 and in view of the permission granted to the •espondents vide Judgment dated 30.4.1956 for filing separate suit for mesne >rofits, such period ought to have been treated as period of suspension of the profits, such period ought to have been treated as period of suspension of th{ right to sue for mesne profits. I have refrained from modifying the decree or the said ground since the respondents hti'w aot filed any cross-objections.
In the result, the appeal fails which is hereby dismissed. However, the respondents shall not be entitled to any cost for the present proceedings since no one had appeared on their behalf at the time of hearing.
(K.K.F.)                                                                            Appeal dismissed

PLJ 2011 Karachi 88
Present: Irfan Saadat Khan, J.
MUHAMMAD ZAFAR SIDDIQUI and 2 others--Plaintiffs
versus
MUHAMMAD QAMAR SIDDIQUI and another--Defendants
Suit No. 1600 of 2009, decided on 12.10.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 12--Partition Act, (IV of 1893), S. 4--Partition among co-sharers--Principle--Recovery of mesne profits--Plaintiffs were co-sharers in suit property who sought partition of the same and also sought recovery of mesne profits from defendants for using the property in excess of their share--Validity--Both the parties were co-owners to the extent of 50% of property, there was nothing on record to show that there was any other claimant to the suit property--No rebuttal on the part of defendants, being available on record, therefore, no exception to judgment directing preparation of preliminary decree could be taken--Entitlement of plaintiffs to suit property was established, therefore, partition and division of property could not be denied, unless it was shown that such property was incapable of division and partition--Once it was established and Court had come to the conclusion that person was entitled to any right or share in the property and he was being deprived of use of such right or share in the property by other person, then the owner, who was out of possession or enjoyment, such person was entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof--Plaintiffs were entitled to mesne profit to the extent of their shares/right or interest in the property--Plaintiffs had filed a chart of determination of mesne profits but that could not be considered as a positive evidence led by plaintiffs without certainty as to the actual income or benefit derived by plaintiffs in enjoyment of the suit property--Decree in terms of O.XX, R.12, C.P.C., was ordered to be prepared and after holding such inquiry as could be necessary, the final decree could be prepared--High Court directed that no mesne profit could be calculated beyond the period of three years from the date of filing of suit--Suit was decreed.           [P. 92] A & B
PLD 1994 SC 874; PLD 1978 SC 89 and PLD 1986 Pesh.19 ref.
Ms. Nahid Naz, Advocate for Plaintiffs.
Nemo for Defendants.
Date of hearing: 7.10.2010.
Judgment
This suit for rendition of accounts, recovery of mesne profits, separate possession and permanent injunction has been filed by the plaintiffs with following prayers--
(i)         pass judgment and decree for partition of the suit property i.e. triple story bungalow on Plot No. B-106, Block-I, measuring 400 sq.yds. situated at NorthNazimabad, Karachi in two parts one part comprising 200 sq yds and the other comprising 200 sq yds by metes and bound so as one part comprising 50% shares each of the suit property vests in and becomes exclusive property of the plaintiffs and in the event this Hon'ble Court comes to the conclusion that the partition/division of the suit property is not possible then order for the sale of the suit property through open auction to highest bidder to satisfaction of plaintiff and Court and distribution of the sale proceeds thereof between the plaintiffs and the defendants according to their respective shares be passed.
(ii)        pass judgment and decree against the defendants jointly or severally requiring them, to pay the plaintiffs a sum of Rs. 64,37,840 towards their shares in the income, rents/mesne profits of the suit property, from March, 1996 to October, 2009 and further mesne profits at the rate of Rs. 1,38,088 per month with 10% annual increase from November, 2009 till partition and/or delivery of separate possession of the portion of the plaintiffs in the suit property and or sale and payment of the plaintiffs' shares in the sale proceeds of the suit property.
(iii)       the defendants be ordered to render the accounts of the income, profits of the suit property which they derived from the accrued garden of the suit property from the date of their exclusive possession till the decision of the suit.
(iv)       permanent injunction restraining the defendants from selling, alienating disposing of or creating any third party interest in the suit property.
(v)        grant any other relief or reliefs which this Hon'ble Court may deem just and proper in the circumstances of the case.
(vi)       grant costs of this suit.
Briefly stated the facts of the case are that the father of the plaintiff namely Muhammad Dawood Siddiqui son of Molvi Muhammad Noor expired in Karachi on 1-12-1996. The deceased was the owner of the House No. B-106, Block-I. North Nazimabad, Karachi and it is a triple storey house built on plot measuring 400 Sq. Yards. At the time of death, the deceased left behind him as his following legal heirs:--
(a)        Ms. Jamila Khatoon widow of the deceased.
(b)        Ms. Rehana Khatoon wife of Muhammad Saleem Khan and daughter of the deceased.
(c)        Mr. Muhammad Zafar Siddiqui son of the deceased.
(d)        Mr. Muhammad Qamar Siddiqui son of the deceased.
(e)        Mrs. Rukhsana Hussain wife of Dr. Shahid Hussain and daughter of the deceased.
(f)        Mr. Muhammad Badar Siddiqui son of the deceased.
Jamila Khatoon widow of the deceased also expired on 26-3-2004 leaving behind three sons and two daughters as mentioned above. After the death of deceased Muhammad Dawood all the legal heirs including Jamila Khatoon participated in mutation proceedings and obtained heir-ship certificate wherein the names of all persons have duly been mentioned. After the death of the mother of the plaintiffs and two defendants, Plaintiff No. 1 approached the Defendants Nos. 2 and 3 for partition of suit property but the defendants on one pretext or the other lingered on the matter. Legal notices in this regard were also sent by plaintiffs to the defendants but of no avail. The matter, thereafter, was referred to Reconciliation Committee (Masalehati Anjuman) 1UC-6 but no amicable settlement took place, hence the present suit.
Learned counsel for the plaintiffs submitted that the plaintiffs tried their level best to settle the matter amicably and made hectic efforts to persuade the defendants for partition of the suit property and distribution of the same amongst the plaintiffs and defendants who are legal heirs of the deceased persons. She submitted that though at number of occasions the plaintiff and the defendants agreed that amicable settlement would be made but on one rhyme or reason the defendants created hurdles by loitering on the matter.
However, no amicable settlement took place between the parties. She further submitted that in order to avoid lengthy legal proceedings the plaintiffs approachedMasalehati Council for amicable settlement, however, in spite of making promises by the defendants neither the suit property was vacated nor the plaintiffs were given their due share in the said property. She submitted that it has specifically been mentioned in the report of said Masalehati Council to deposit the file of property with the said Council but the said file was never given. As per learned counsel, the Defendant No. 1 whenever called by the said council, not only used to insult and humiliate the plaintiffs but also remained absent on various occasions. As per the learned counsel plaintiffs have tried their level best for amicable settlement of the matter and to convince the defendants to give due legal share in the said property to all the legal heirs but the defendants were neither cooperating with them nor were ready to give the due legal shares to the other legal heirs of their deceased father. Lastly, she submitted that a number of opportunities were provided to the defendants to appear before this Court but they failed to appear and have not filed their written statements. She prayed that the suit may be decreed as prayed. In support of her contentions she relied upon the cases reported in PLD 1994 SC 874, PLD 1978 SC 89 and PLD 1986 Peshawar 19.
I have heard the learned counsel for the plaintiff and have also perused the record. It is an admitted fact the Defendant Nos. 1 and 2 are the real brothers of the plaintiffs. It is also an admitted position that they are entitled for shares in the property left by their deceased father. Perusal of the record reveals that summon in this case were ordered to be issued by A/R on 16-3-2010 for 16-4-2010, however, as no written statements were filed by them they were debarred from filing the written statements vide order dated 7-5-2010. On 26-11-2009 Defendant No. 2 appeared in person and requested for sometime to file written statement, which request was allowed but no written statement was filed by the defendants thereafter.
From the perusal of the record it is evident that plaintiffs and defendants are the co-owners to the extent of 50% of property, there is nothing on record to show that there are any other claimants to the suit property. There is no rebuttal on the part of defendants therefore no exception to judgment direction preparation of preliminary decree could be taken. It is a trite law that once entitlement of the plaintiffs to the suit property is established, the partition and division of the property cannot be denied, unless of course, it is shown that such property is incapable of division and partition.
It is therefore ordered that preliminary decree for partition and division of suit property be prepared Nazir is directed to take possession of the suit property and in case partition of the suit property is not possible by metes and bound then to sell the property by putting it to an open auction with an option to the parties to the suit to match the highest offer and if the circumstances so permit limited auction between the parties. Nazir's fee is fixed at Rs. 25,000. All other expenses are to be recovered from the auction amount if any otherwise from the parties to the suit according to their shares.
So far the question of mesne profit is concerned, it is a settled proposition of law that once a person establishes and the Court comes to the conclusion that person is entitled to any right or share in the property and is being deprived of use of such right or share in the property by the other person then the owner, who is out of possession or enjoyment, becomes entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof as the case may be. Hence, in my view, the plaintiffs are entitled to mesne profit to the extent of their shares/rights or interest in the property. Though the plaintiffs have filed a chart of determination of mesne profit but that could not be considered as a positive evidence led by the plaintiffs without certainty as to the actual income or benefit derived by the plaintiffs in enjoyment of the suit property. Hence it would meet the ends of justice if decree of mesne profit in terms of Order XX Rule 12, C.P.C. is prepared and after holding such enquiry as may be necessary, the final decree may be prepared. However no mesne profit may be calculated beyond a period of three years from the date of the filing of the present suit. The plaintiffs are also entitled to the costs.
The suit in the above terms stands disposed off.
(R.A.)  Suit decreed.

PLJ 2011 Karachi 88
Present: Irfan Saadat Khan, J.
MUHAMMAD ZAFAR SIDDIQUI and 2 others--Plaintiffs
versus
MUHAMMAD QAMAR SIDDIQUI and another--Defendants
Suit No. 1600 of 2009, decided on 12.10.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 12--Partition Act, (IV of 1893), S. 4--Partition among co-sharers--Principle--Recovery of mesne profits--Plaintiffs were co-sharers in suit property who sought partition of the same and also sought recovery of mesne profits from defendants for using the property in excess of their share--Validity--Both the parties were co-owners to the extent of 50% of property, there was nothing on record to show that there was any other claimant to the suit property--No rebuttal on the part of defendants, being available on record, therefore, no exception to judgment directing preparation of preliminary decree could be taken--Entitlement of plaintiffs to suit property was established, therefore, partition and division of property could not be denied, unless it was shown that such property was incapable of division and partition--Once it was established and Court had come to the conclusion that person was entitled to any right or share in the property and he was being deprived of use of such right or share in the property by other person, then the owner, who was out of possession or enjoyment, such person was entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof--Plaintiffs were entitled to mesne profit to the extent of their shares/right or interest in the property--Plaintiffs had filed a chart of determination of mesne profits but that could not be considered as a positive evidence led by plaintiffs without certainty as to the actual income or benefit derived by plaintiffs in enjoyment of the suit property--Decree in terms of O.XX, R.12, C.P.C., was ordered to be prepared and after holding such inquiry as could be necessary, the final decree could be prepared--High Court directed that no mesne profit could be calculated beyond the period of three years from the date of filing of suit--Suit was decreed.           [P. 92] A & B
PLD 1994 SC 874; PLD 1978 SC 89 and PLD 1986 Pesh.19 ref.
Ms. Nahid Naz, Advocate for Plaintiffs.
Nemo for Defendants.
Date of hearing: 7.10.2010.
Judgment
This suit for rendition of accounts, recovery of mesne profits, separate possession and permanent injunction has been filed by the plaintiffs with following prayers--
(i)         pass judgment and decree for partition of the suit property i.e. triple story bungalow on Plot No. B-106, Block-I, measuring 400 sq.yds. situated at NorthNazimabad, Karachi in two parts one part comprising 200 sq yds and the other comprising 200 sq yds by metes and bound so as one part comprising 50% shares each of the suit property vests in and becomes exclusive property of the plaintiffs and in the event this Hon'ble Court comes to the conclusion that the partition/division of the suit property is not possible then order for the sale of the suit property through open auction to highest bidder to satisfaction of plaintiff and Court and distribution of the sale proceeds thereof between the plaintiffs and the defendants according to their respective shares be passed.
(ii)        pass judgment and decree against the defendants jointly or severally requiring them, to pay the plaintiffs a sum of Rs. 64,37,840 towards their shares in the income, rents/mesne profits of the suit property, from March, 1996 to October, 2009 and further mesne profits at the rate of Rs. 1,38,088 per month with 10% annual increase from November, 2009 till partition and/or delivery of separate possession of the portion of the plaintiffs in the suit property and or sale and payment of the plaintiffs' shares in the sale proceeds of the suit property.
(iii)       the defendants be ordered to render the accounts of the income, profits of the suit property which they derived from the accrued garden of the suit property from the date of their exclusive possession till the decision of the suit.
(iv)       permanent injunction restraining the defendants from selling, alienating disposing of or creating any third party interest in the suit property.
(v)        grant any other relief or reliefs which this Hon'ble Court may deem just and proper in the circumstances of the case.
(vi)       grant costs of this suit.
Briefly stated the facts of the case are that the father of the plaintiff namely Muhammad Dawood Siddiqui son of Molvi Muhammad Noor expired in Karachi on 1-12-1996. The deceased was the owner of the House No. B-106, Block-I. North Nazimabad, Karachi and it is a triple storey house built on plot measuring 400 Sq. Yards. At the time of death, the deceased left behind him as his following legal heirs:--
(a)        Ms. Jamila Khatoon widow of the deceased.
(b)        Ms. Rehana Khatoon wife of Muhammad Saleem Khan and daughter of the deceased.
(c)        Mr. Muhammad Zafar Siddiqui son of the deceased.
(d)        Mr. Muhammad Qamar Siddiqui son of the deceased.
(e)        Mrs. Rukhsana Hussain wife of Dr. Shahid Hussain and daughter of the deceased.
(f)        Mr. Muhammad Badar Siddiqui son of the deceased.
Jamila Khatoon widow of the deceased also expired on 26-3-2004 leaving behind three sons and two daughters as mentioned above. After the death of deceased Muhammad Dawood all the legal heirs including Jamila Khatoon participated in mutation proceedings and obtained heir-ship certificate wherein the names of all persons have duly been mentioned. After the death of the mother of the plaintiffs and two defendants, Plaintiff No. 1 approached the Defendants Nos. 2 and 3 for partition of suit property but the defendants on one pretext or the other lingered on the matter. Legal notices in this regard were also sent by plaintiffs to the defendants but of no avail. The matter, thereafter, was referred to Reconciliation Committee (Masalehati Anjuman) 1UC-6 but no amicable settlement took place, hence the present suit.
Learned counsel for the plaintiffs submitted that the plaintiffs tried their level best to settle the matter amicably and made hectic efforts to persuade the defendants for partition of the suit property and distribution of the same amongst the plaintiffs and defendants who are legal heirs of the deceased persons. She submitted that though at number of occasions the plaintiff and the defendants agreed that amicable settlement would be made but on one rhyme or reason the defendants created hurdles by loitering on the matter.
However, no amicable settlement took place between the parties. She further submitted that in order to avoid lengthy legal proceedings the plaintiffs approachedMasalehati Council for amicable settlement, however, in spite of making promises by the defendants neither the suit property was vacated nor the plaintiffs were given their due share in the said property. She submitted that it has specifically been mentioned in the report of said Masalehati Council to deposit the file of property with the said Council but the said file was never given. As per learned counsel, the Defendant No. 1 whenever called by the said council, not only used to insult and humiliate the plaintiffs but also remained absent on various occasions. As per the learned counsel plaintiffs have tried their level best for amicable settlement of the matter and to convince the defendants to give due legal share in the said property to all the legal heirs but the defendants were neither cooperating with them nor were ready to give the due legal shares to the other legal heirs of their deceased father. Lastly, she submitted that a number of opportunities were provided to the defendants to appear before this Court but they failed to appear and have not filed their written statements. She prayed that the suit may be decreed as prayed. In support of her contentions she relied upon the cases reported in PLD 1994 SC 874, PLD 1978 SC 89 and PLD 1986 Peshawar 19.
I have heard the learned counsel for the plaintiff and have also perused the record. It is an admitted fact the Defendant Nos. 1 and 2 are the real brothers of the plaintiffs. It is also an admitted position that they are entitled for shares in the property left by their deceased father. Perusal of the record reveals that summon in this case were ordered to be issued by A/R on 16-3-2010 for 16-4-2010, however, as no written statements were filed by them they were debarred from filing the written statements vide order dated 7-5-2010. On 26-11-2009 Defendant No. 2 appeared in person and requested for sometime to file written statement, which request was allowed but no written statement was filed by the defendants thereafter.
From the perusal of the record it is evident that plaintiffs and defendants are the co-owners to the extent of 50% of property, there is nothing on record to show that there are any other claimants to the suit property. There is no rebuttal on the part of defendants therefore no exception to judgment direction preparation of preliminary decree could be taken. It is a trite law that once entitlement of the plaintiffs to the suit property is established, the partition and division of the property cannot be denied, unless of course, it is shown that such property is incapable of division and partition.
It is therefore ordered that preliminary decree for partition and division of suit property be prepared Nazir is directed to take possession of the suit property and in case partition of the suit property is not possible by metes and bound then to sell the property by putting it to an open auction with an option to the parties to the suit to match the highest offer and if the circumstances so permit limited auction between the parties. Nazir's fee is fixed at Rs. 25,000. All other expenses are to be recovered from the auction amount if any otherwise from the parties to the suit according to their shares.
So far the question of mesne profit is concerned, it is a settled proposition of law that once a person establishes and the Court comes to the conclusion that person is entitled to any right or share in the property and is being deprived of use of such right or share in the property by the other person then the owner, who is out of possession or enjoyment, becomes entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof as the case may be. Hence, in my view, the plaintiffs are entitled to mesne profit to the extent of their shares/rights or interest in the property. Though the plaintiffs have filed a chart of determination of mesne profit but that could not be considered as a positive evidence led by the plaintiffs without certainty as to the actual income or benefit derived by the plaintiffs in enjoyment of the suit property. Hence it would meet the ends of justice if decree of mesne profit in terms of Order XX Rule 12, C.P.C. is prepared and after holding such enquiry as may be necessary, the final decree may be prepared. However no mesne profit may be calculated beyond a period of three years from the date of the filing of the present suit. The plaintiffs are also entitled to the costs.
The suit in the above terms stands disposed off.
(R.A.)  Suit decreed.

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