International Lawyer Law Firm

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.