P L D 2025 Balochistan 60
Before Shaukat Ali Rakhshani, J
MUSHTAQ AHMED and 6 others ---Petitioners
Versus
FOUZIA NAWAZ and 14 others ---Respondents
Civil Revision No. 723 of 2022, decided on 29th October, 2024.
(a) Specific Relief Act (I of 1877)---
----Ss.42, 8 & 54 ---Civil Procedure Code (V of 1908), S.12(2) & O.VII, R.2--- Suit for
declaration, partition, possession, rendition of accounts, mesne profit and permanent
injunction--- Possession of the property by other successors ---Admission as to right of legacy
of respondent/ plaintiff except mesne profit ---Claim of mesne profit by co- sharer ---Scope ---
There was admission as to right of share of respondent in the legacy left by the predecessor, however, only decree of mesne profit was assailed as the courts below did not determine the mesne profit specifically ---Validity ---Mesne profits are typically granted to a person, who
has been dispossessed of a property by someone through wrongful possession as defined under S.12(2) of C.P.C., however, as a general rule one co- sharer cannot claim mesne profit
against other co -sharer in possession of a joint property on the principle that every co- sharer
is deemed to have lawful right on every bit of such property unless severance takes place, but
an exception arises, when a co -sharer in possession excludes or ousts the others, thereby
depriving them of their rightful share of the property's benefits, profits and rents ---Right of
share of respondent in the legacy left behind by her predecessor had not been disputed, except assailing the decree of mesne profit ---Evidence on record entitled respondent No.1
and other legal heirs of the predecessor to have share in the legacy left by him, which had rightly been appreciated by the Trial Court with reasons and upheld by the Appellate Court. which required no interference except to the extent of mesne profit ---Admittedly respondent
was living with petitioners and her expenses were also borne by them ---Trial Court while
deciding the matter had not specifically determined and calculated the mesne profit due thereof, thus, the decree was not executable---Decree to the extent of mesne profit could not be altered and amended because the decree had neither been challenged by respondent or any other legal heir nor cross objections thereof had been filed by them ---High Court in exercise
of its revisional jurisdiction partially allowed the civil revision by maintaining the judgments and decrees, however, decree to the extent of mesne profit was set aside.
Muhammad Rafiq v. Bibi Asifa 2013 CLC 1446; Mahmood Ali Khan v. Hamid Ali
and others (C.P.L.A. No.83- K of 2014); Muhammad Anwar v. Dr. Gohar Ali 2007 CLC 621
and Gul Banu v. Shahnaz Banu 2023 CLC 861 rel.
(b) Civil Procedure Code (V of 1908) ---
----S.12(2) ---Mesne profit ---Meaning and purpose ---In civil law mesne profit refers to the
profits and benefits derived by a person in wrongful possession of a property and the very object of awarding a decree for mesne profit is to compensate the person, who has wrongly been kept out of possession, even though he was entitled to possession thereof and deprived of the enjoyment and potential profits from the property.
Sheraz Ahmed for Petitioners.
Muhammad Ali for Respondent No. 1.
Ameer Zaman Jogezai, A.A.G. for the State.
Date of hearing: 18th October, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The petitioners have put in the captioned Civil
Revision Petition against the judgment and decree dated 12.02.2022 ("impugned judgment")
passed by learned Civil Judge -VI, Quetta ("Trial Court"), whereby suit filed by respondent
No.1 was decreed as well as against the judgment and decree dated 19.09.2022 ("impugned judgment") handed down by learned Additional District Judge, X, Quetta ("Appellate
Court"), whereby appeal filed by the petitioners was dismissed and impugned judgment of
the Trial Court was upheld.
2. Unfurled facts of the case are that a suit for declaration, partition, possession,
rendition of accounts, mesne profit & permanent injunction was filed by respondent No.1,
which was contested by defendants Nos.1 to 4, 6 to 9 by means of filing written statements, whereas defendants Nos.5, 10 to 20 were proceeded against ex- parte, which led the Trial
Court to frame five issues, whereafter in order to establish the case, respondent No.1 produced four witnesses as well as got recorded her own statement, whereas in rebuttal, the petitioners produced two witnesses and Mushtaq Ahmed (Defendant No.1) got recorded his statement as attorney for defendants Nos.1 to 4 and 6 to 9.
3. The Trial court on conclusion of trial, decreed the suit in favor of respondent No.1
vide impugned judgment dated 12.02.2022, which was upheld by the Appellate Court in appeal filed by the petitioners vide impugned judgment dated 19.09.2022, hence this petition.
4. Heard. Record sussed out with the able assistance of learned counsel for the
adversarial parties, which reveals that a suit for declaration, partition, possession, rendition
of accounts, mesne profit and permanent injunction was filed by respondent No.1 with the
assertion that the petitioners and private respondents are legal heirs of Muhammad Nawaz
(late), who left behind certain properties mentioned in paras Nos. 2 and 3 of the plaint, which
requires to be shared amongst the legal heirs of Muhammad Nawaz late. The petitioners and respondents contested the suit on legal and factual premises, thus out of the divergent
pleadings, the Trial Court framed the following issues;
"Whether late Muhammad Nawaz left legacy / following properties and plaintiff and
defendants Nos.1 to 9 are joint sharer in the properties of their predecessor ?
a) Property bearing Khasra Nos.404, 424, 425, Ward No.45, Khewat No.245,
Khatooni No.349 measuring 4158 sq. ft. Tehsil City, District Quetta.
b) Property bearing Khasra Nos. 1003, 1004, Ward No.29, Khewat No.433, Khatooni No.809, Tappa Urban 3, Tehsil City, District Quetta measuring 21826 sq. ft.
ii. Whether the plaintiff and defendants Nos. 1 to 9 are share -holders in the following
properties of predecessor of the parties?
c) Property bearing Khasra Nos.404, 424, 425, Ward No.45, Khewat No.245, Khatooni No.349 measuring 4158 sq. ft. Tehsil City, District Quetta.
d) Property bearing Khasra Nos. 1003, 1004, Ward No.29, Khewat No.433, Khatooni No.809, Tappa Urban 3, Tehsil City, District Quetta measuring 21836 sq. ft.
iii. Whether the plaintiff is entitled for the profit earned by the defendants Nos.1, 3 to 8 from suit properties including flour mills/chakkis, Warid Telecom Tower and shops rented out till the decision of the suit?
iv. Whether the plaintiff is entitled for the relief, she claimed for?
v. Relief, if any? "
5. The Trial Court on conclusion of trial decreed the suit of respondent No.1 in the
following terms;
"12. Since the core issues have already been resolved in favour of the plaintiff hence the suit filed by the plaintiff is hereby decreed and the plaintiff is entitled for the masne profit of rented houses/shops, flour mills, Warid Telecom Tower from January 2019. The defendant No.21 is directed to partition the suit properties between the legal heirs of Haji Muhammad Nawaz i.e. plaintiff and defendants Nos. 1 to 9 as per their sharai shares. There is no order as to cost."
6. Muhammad Arshad Bilal (PW -1) and Shahab- ud-Din (PW2) affirmed the fact that
rent of a flour mill, shop having a double shutter, house situated at Alamdar Road, Quetta
and of tower of a Warid Telecom Company is being received by Muhammad Ramzan (Defendant No.3). Defendant No.3 also admitted that respondent No.1 has not received a single penny from the income and rent of the properties in question since 2014. Mushtaq Ahmed petitioner No.1, being attorney for petitioners Nos.2 to 7 during cross -examination
replied as infra;
7. In Civil law mesne profit refers to the profits and benefits derived by a person in
wrongful possession of a property and the very object of awarding a decree for mesne profits
is to compensate the person, who has wrongly been kept out of possession, even though he was entitled to possession thereof, and deprived of the enjoyment and potential profits from
the property. Section 2 (12) of the Code of Civil Procedure, 1908 ("C.P.C.") provides the
definition of the mesne profit, which reads as under;
"2 (12) "mesne profits" of property means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession".
8. Mesne profits are typically granted to a person who has been dispossessed of a
property by someone through wrongful possession as defined under section 2(12) of C.P.C., however, as a general rule one co -sharer cannot claim mesne profit against other co -sharer in
possession of a joint property on the principle that every co- sharer is deemed to have lawful
right on every bit of such property unless severance takes place, but an exception arises, when a co -sharer in possession excludes or ousts the others, thereby depriving them of their
rightful share of the property's benefits, profits and rents. This view can be reinforced from the judgment of this Court in the case titled as "Muhammad Rafiq v. Bibi Asifa" (2013 CLC 1446), wherein it was held that a co- sharer in possession of jointly owned property cannot be
held liable for mesne profits to other co- sharers unless there is proof of ouster or exclusion.
9. The apex court in an unreported judgment titled as "Mahmood Ali Khan v. Hamid Ali
and others (CPLA No.83- K of 2014) has categorically addressed the issue of mesne profits
among co -sharers. The relevant portion whereof reads as under;
"We are also of the view that the respondents who had occupied by the subject property at the time of death of deceased Khawaja Azmat Ali are liable to pay mesne profits to the other legal heirs. We will therefore direct the trial Court that before distribution of the sale proceeds received from the petitioner to the respondents as per their sharia share he should deduct Rs.3000/ - per month as subject property for first
five years, from the death of late Khawaja Azmat Ali, Rs.4000/ - per month for the
next five years and Rs.5000/ - per month for further period up to date from the share
of the respondents Nos. 2, 4 and 5 and distribute this amount of respondents according to their share as per Shariah in the inheritance of their late father."
Likewise, the Sindh High Court in the case of "Muhammad Anwar v. Dr. Gohar Ali"
(2007 CLC 621) delineated as under:
"Contention of Mr. Durrani, learned counsel for the appellant that the defendant/respondent being co- owner cannot claim mesne profit is not substantiated
by any law. Plaintiff who claims mesne profit has to show that he is owner of the
property and that the defendant is in wrongful possession, thereof, Even a co- owner
may be in wrongful possession, when he occupies the property to the exclusion of the
other rightful co- owner. In such ease the co- owner in possession to the exclusion of
other co -owner may be held liable to the extent of his unauthorized or hostile
occupation possession or enjoyment thereof.
Once a person establishes and Court comes to a 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
property by the other person, then the owner who is out of possession or enjoyment
becomes entitled to claim those profits actually received by person in unlawful possession or enjoyment of such part thereof as the case may be. Therefore, the conclusion of the learned Court that suit for mesne profit is not maintainable while deciding Issue No.1 cannot be sustained and is accordingly set aside."
Where there is clear and convincing evidence to show the actual profit or income
derived out of such property by the person who is enjoying and reaping benefit out of
its use, the Court may award such claim of profit that is derived or is capable of deriving out of such use and enjoyment by the person who is held to be in unauthorized use. The person claiming and establishing any right or share in the
property may be entitled to claim profit or mesne profit to the extent of his share or
right and interest in the property. In the instant case plaintiff has not led any
convincing evidence as to determine with certainty the actual income or benefit derived by the defendant in authorized possession or enjoyment or that the property was capable of fetching. Such situation is redressed by awarding decree of mesne
profit by directing preparation of decree for mesne profit in terms of Order XX, Rule
12, C.P.C. and after holding such enquiry as may be necessary the final decree may be
prepared. Cross -objection stands allowed let the decree for mesne profit be also
prepared along with preliminary decree for possession and partition as ordered by the
learned trial Court."
Similarly, in the case of "Gul Banu v. Shahnaz Banu" (2023 CLC 861), the Sindh
High Court reiterated the above view. For ease of reference, relevant Para No.13 of Gul Banu's case is reproduced herein below;
"13. It gleans from appraisal of the foregoing that the tenancy agreements introduced on record by the plaintiff's attorney does not germane to the said property. But this is not the claim of the plaintiff. The moot plea of the defendants is that they are not enjoying any benefits from the said property rather they are residing in it being legal heirs of late Abdul Shakoor Khan. Contention of learned counsel for the defendant that the plaintiff being co -owner cannot claim mesne profit is not substantiated by any
law. As stated earlier, a person who claims mesne profit, he has to show that he is owner of the property and that the defendants are in wrongful possession, thereof, therefore in my humble view for all intent and purposes, even a co- owner (who may
be related to the claimant) may be in wrongful possession of a property if he occupies the subject property to the exclusion of the other rightful co- owner(s). In such a case
the co -owner in possession to the exclusion of other co- owner will however be held
liable to the extent of his unauthorized or hostile occupation possession or enjoyment thereof to the extent of the share of the claimant. Once a person establishes and court comes to the conclusion that the person was entitled to any right or share in the property and he is being deprived of such right or share in the property by the other person, then even the partial 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."
10. The right of share of respondent No.1 in the legacy left behind by their predecessor
Muhammad Nawaz (late) has not been disputed, except assailing the decree of mesne profit. The evidence on record entitles respondent No.1 and other legal heirs of Muhammad Nawaz (late) to have share in the legacy left behind him, which has rightly been appreciated by the Trial Court with reasons and upheld by
the Appellate Court, which requires not to be interfered with for it suffers from no error of
law and fact, except to the extent of mesne profit. In the instant case, admittedly respondent No.1 was living with petitioners and her expenses were also borne by them. Moreso, the Trial Court while rendering the impugned judgment has not specifically determined and
calculated the mesne profit due against
the petitioners and defendant No.3, henceforth in absence thereof, the decree would not be
executable. At this stage, the decree to the extent of mesne profit cannot be altered and
amended because the decree has neither been challenged by respondent No.1 or any other legal heir nor cross objections thereof have been filed by them.
11. The petitioners have assailed the concurrent findings arrived at by the fora below,
which neither suffers from misreading of evidence nor have they travelled beyond their jurisdiction or had mis -exercised their powers, except to the extent of mesne profit, thus I am
not inclined to exercise jurisdiction as contemplated under section 115 of C.P.C. to set at naught the impugned judgments of the Trial Court and Appellate Court.
12. For the foregoing reasons, the petition is partially allowed
by maintaining the impugned judgments and decrees, however, the decree to the extent of
mesne profit is set -aside with no order as to cost.
Decree sheet be drawn accordingly.
SA/139/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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