Judgment Sheet

IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD

Second Appeal No. 24 of 2011

Appellant              :    Bibi Amirunnisa Wd/O late Syed Ali Asghar Shah,

                                    through Mr. Arbab Ali Hakro Advocate.

Respondents

No.1 to 5               :    (1) Syed Ghulam Hyder Shah alias Umaz Shah.

                                         S/O Syed Nawaz Ali Shah.

                                    (2) Bibi Amirunnisa Wd/O Syed Nawaz Ali Shah.

(3) Syed Ghulam Mohiuddin  S/O Syed Nawaz Ali    

     Shah.

(4) BibiIram D/O Syed Nawaz Ali Shah.

(5) Bibi Sanam D/O Syed Nawaz Ali Shah,

                                          through Syed Ghulam Hyder Shah, Advocate.

Respondent No.6 :  Pakistan State Oil, called absent.

            Date of hearing    :   11.11.2019.

J U D G M E N T

NADEEM AKHTAR, J. – First Class Suit No.323/2006 filed by the appellant against the respondents for possession, mesne profits and permanent and mandatory injunction in respect of corner commercial plot measuring 8,375 sq. ft., including PSO Uzma Petroleum Service and building constructed thereon, out of Revenue Survey No.137/4, situated in Ghulam Hyder Shah Colony, Deh 25 Dad, Kazi Ahmed Road, Nawabshah (‘suit property’), was decreed by the learned trial Court vide judgment and decree dated 09.03.2009 and 13.03.2009, respectively, as prayed by the appellant ; and, Civil Appeal No.10/2009 filed by respondents 1 to 5 against the said judgment and decree was dismissed by the learned appellate Court vide judgment and decree dated 28.01.2011 and 03.02.2011, respectively, whereby the above decree of the learned trial Court was maintained to the extent of possession of the suit property, but was set aside in respect of mesne profits. Through this second appeal, the appellant has impugned the findings of the learned appellate Court to the extent of reversal of the decree for mesne profits.

2.         Relevant facts of the case are that the above Suit was filed by the appellant claiming to be the sole and absolute owner of the suit property by virtue of a registered sale deed executed in her favour by the previous owner on 19.12.1998 and mutation in pursuance thereof in the record of rights vide entry No.1586 dated 30.12.1998. It was stated by her that a Suit bearing F.C. Suit No.48/1999 was filed against her and respondent No.6 by respondents 1 to 5, seeking declaration that they are the owners of the suit property and the registered sale deed in favour of the appellant was illegal and void, and also for cancellation of the said registered sale deed in her favour ; and, the said Suit was contested by the appellant, whereafter it was dismissed on merits by the trial Court vide judgment and decree dated 16.08.2006 and 24.08.2006, respectively. In her plaint, it was alleged by the appellant that during pendency of her above Suit, respondents 1 to 5 took over possession of the suit property illegally and forcibly, whereafter they started altering and damaging the construction standing thereon. In this background, the above Suit was filed by the appellant against the respondents for declaration, possession, mesne profits and permanent and mandatory injunction.

3.         After filing of the written statement by respondents 1 to 5 in the above Suit, six issues were settled by the learned trial Court whereafter the parties led their respective evidence. It was observed in the judgment by the learned trial Court that by dismissing F.C. Suit No.48/1999 filed by respondents 1 to 5, title of the appellant in respect of the suit property was upheld by the trial Court ; Civil Appeal No.90/2006 filed by respondents 1 to 5 against dismissal of their above Suit was dismissed by the learned appellate Court, and Second Appeal No.12/2007 filed by them against the above concurrent findings was also dismissed by this Court on 22.05.2008 ; the above facts were admitted by defendant No.1 (present respondent No.1) in his evidence ; the said defendant / respondent had claimed that respondents 1 to 5 had filed a Civil Petition for Leave to Appeal before the Hon’ble Supreme Court against dismissal of their Suit and appeals, but he could not prove that the said petition had actually been filed or was pending before the Hon’ble Supreme Court. In view of the above, the appellant’s Suit was decreed by the learned trial Court, as prayed by her, by holding that she had successfully proven her claim / title in respect of the suit property.

4.         As noted above, the decree passed by the learned trial Court was maintained by the learned appellate Court, except for mesne profits to the appellant, which have been declined. It was held in the impugned judgment by the learned appellate Court that though mesne profits were claimed by the appellant in her plaint at the rate of Rs.100,000.00 per annum from November 2005 till delivery of possession of the suit property to her, she did not specifically demand the same in her evidence, and no separate issue was settled in this behalf. It was further held that the appellant had failed to adduce any evidence with regard to mesne profits and the same have not been calculated or determined by the trial Court on the basis of evidence. In view of the above findings, it was held by the learned appellate Court that the appellant had failed in proving her claim of mesne profits made in the plaint. It may be noted that the request of the appellant’s counsel to remand the case to the trial Court for determination of mesne profits, was declined by the learned appellate Court.

5.         I have heard learned counsel for the parties at length and have also examined the material available on record. Perusal of the appellant’s plaint shows that in paragraphs 7 and 8 thereof she had specifically pleaded the fact about taking over possession of the suit property by respondents 1 to 5 illegally and forcibly and her right and entitlement to claim mesne profits from them, and she had made specific prayer (b) claiming mesne profits from them at the rate of Rs.100,000.00 per annum from November 2005 till delivery of possession of the suit property to her. The appellant’s witness had deposed that the said respondents had never paid any mesne profits or rent to the appellant, but in his cross-examination he was not confronted by the said respondents with regard to the appellant’s claim of mesne profits. Though no separate issue with regard to mesne profits was settled by the trial Court, but issue No.5 “Whether plaintiff is entitled for the relief claimed?”, in my humble opinion, was sufficient to cover the claim of mesne profits. Therefore, to this extent I do not agree with the learned appellate Court. However, the finding of the learned appellate Court that mesne profits were granted by the learned trial Court without any proper calculation or determination appears to be correct. It is well-settled that before deciding the question or quantum of mesne profits, the Court has to record a finding that the plaintiff is the lawful owner of the subject property and the defendant was in unauthorized possession thereof or had kept the plaintiff out of its possession ; once the Court comes to the conclusion that defendant was in unauthorized possession of the property claimed by the plaintiff or it was he who was instrumental in depriving the plaintiff of possession and enjoyment of his property, the defendant would be liable to pay mesne profits to the plaintiff ; and, in such eventuality the Court will have to determine mesne profits on the basis of the evidence on record or after holding such inquiry as may be necessary.

6.         In the instant case, it was established that the appellant was the lawful owner of the suit property and respondents 1 to 5 had taken over its possession forcibly and illegally, therefore, there was no doubt that the said respondents were liable to pay mesne profits to the appellant under Rule 12 of Order XX CPC read with Section 2(12) CPC. To this extent findings of the learned trial Court were proper and correct. However, in view of the well-settled principle discussed above, learned trial Court was required to ascertain and determine the quantum / rate of mesne profits on the basis of the evidence on record or after holding such inquiry as would have been necessary, which exercise was not undertaken by the learned trial Court. The learned appellate Court was not justified in declining the request made on behalf of the appellant to remand the matter to the trial Court for ascertaining and determining mesne profits, especially when the title of the appellant in respect of the suit property had already been established and findings in this behalf had attained finality.

7.         In view of the above discussion, the impugned judgment and decree are hereby set aside and the decree for mesne profits passed by the learned trial Court is restored. However, as the quantum / rate of mesne profits were not ascertained and or determined by the learned trial Court, the matter is remanded to the learned trial Court only to the extent of ascertaining and determining the quantum / rate of mesne profits on the basis of the evidence on record or after holding such inquiry as may be necessary. The entire exercise shall be completed by the learned trial Court strictly in accordance with law within three (03) months from receipt of this judgment.

8.         Foregoing are the reasons of the short order announced by me on 11.11.2019 whereby this appeal was partly allowed with no order as to costs.

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                                                                                                                   J U D G E