' MAULVI ANWARUL HAQ, J.- On 8-9-2003, respondent No.l (hereinafter to be referred to as plaintiff) filed a suit ' against the appellants and remaining 1 respondents. It was mentioned in the plaint that the plaintiff is owner of land measuring 1346 Kanals, 16 Marlas, fully described in para 1 of the pliant, with reference to Register Haqdaran Zamin for the years 1967-68 and Mutation No. 1590 attested on 9-10-1983. The defendants in the case agitated the matter of cancellation of allotment of their vendor/predecessor-in- interest by filing Writ Petitions Nos.231 and 232 of 1969 against order dated 20-10-1969 of Additional Settlement Commissioner (Lands), Sheikhupura. The case was remanded by this Court vide order dated 2-9-1971. The case was reheard and the Additional. Commissioner
(R) exercising powers of Settlement Commissioner, Lahore Division vide judgment dated 30-7-1986 upheld the cancellation of 817 units as also the transfer of 799 units out of the said land in favour of Mst. Aifirao Bi and its transfer by the said lady in favour of the plaintiff. Similarly, another judgment passed on'the same day, cancellation of 4608 units and allotment of 4019 units from the said land in favour of Mst. Amrao Bi and its transfer in favour of the plaintiff was upheld, The defendants filed Writ Petitions Nos.322/R and 323/R of 1986 in this Court which were dismissed on 22-1-2002. Civil Appeals Nos.781 and 782 of 2002 were dismissed by the Honourable Supreme Court of Pakistan on 20-6-2003. The defendants, however, are continuing in occupation of the land illegally and without any authority while the plaintiff had not been getting any thing from the land. He was not only entitled to the possession of the land but also compensation for use and occupation for the previous three years at the rate of Rs.5,000 per Acre/per Year. A decree for possession and for recovery of Rs.25,50,000 was accordingly prayed for. Only the appellants contested the suit and filed written statement on 19-12-2003. The plea taken by them was that they had entered in the land under lawful title, whereas the plaintiff has no title better than them. Although not so specific but the impression which one gets from the written statement is that the said contestants have pleaded that the possession has been continuing under stay by various Courts and could not be termed as wrongful. Following issues were framed by the learned trial Court:- .
' Whether the defendants are in illegal occupation of the disputed property? OPP
(1) Whether the defendants are liable to pay Rs.25,50,000 to the plaintiff on account of use and occupation of the disputed property? OPP
(2) Whether the plaintiff is owner of the disputed property and the defendants have no nexus with the title of the disputed property? OPP
(3) Whether the defendants are no trespassers and they are in possession of the disputed property on account of valid and legal grounds? OPD
(4) Whether the plaintiff is entitled to the relief claimed for? OPP
(5) Relief.
Evidence of parties was recorded. All the issues were answered in favour of the plaintiff and the suit was decreed vide judgment and decree dated 30-9-2004.
2. Mr. Ijaz Feroze, Advocate, learned counsel for the appellants had tried to argue that notwithstanding the earlier litigation culminating in the apex Court, suit for possession was not competent, rather a suit for partition ought to have been filed. According to him, the suit was not maintainable. He has,.However, vehemently urged relying upon a judgment in the case "Messrs R.C.D. Ball Bearing Limited v. Sindh Employees Social Security Institution, Karachi" (PLD 1991 SC 308) that the periods of time during which the stay orders issued by this Court and the Honourable Supreme Court of Pakistan were in force, the possession of his client cannot be termed as wrongful within the meaning of section 2(12), C.P.C. And the decree for mesne profits could not have been passed. According to the learned counsel, the possession was delivered in execution of the impugned decree on 7-12-2004. Syed Muhammad Javed Rizvi, Advocate, learned counsel for the plaintiff contends with reference to the revenue records on the file of the learned trial Court that specific land was allotted to Mst. Amrao Bi and consequently gifted to the plaintiff and the possession of this specific land was delivered to him in execution of the decree without any objection from the appellants or other judgment debtors. He referred to the judgment dated 20-6- 2003 of the Honourable Supreme Court of Pakistan (Exh.P.7) to urge that the possession of the defendants has been held to be unauthorized. He relies on a Division Bench judgment of this Court in the case "Mst. Naseema Salahuddin and 2 others v. Mst. Daulat Fatima and 4 others" (PLD 2004 Lah. 103).
3. We have gone through the records of the learned trial Court with the assistance of the learned counsel for the parties. The facts as to the acquisition of title in'the suit-land by the plaintiff and absence thereof in the defendants stand judicially determined in the settlement hierarchy then by this Court and ultimately by the Honourable Supreme Court of Pakistan. The cancellation of the excess units and thereafter allotment of the land in favour of Mst. Amrao Bi and then ultimate, transfer in favour of the plaintiff was upheld after considering all available contentions raised by the learned counsel for the parties vide judgment Exh.P.7.
4. So far as the said first contention of the learned counsel for the appellants is. Concerned, Exh.P.8 is a copy of Mutation No. 1590, attested on 9-10-1983, whereby Mst. Amrao Bi gifted away the suit- land to the plaintiff. The entire land forijis a single Khata exclusively owned by Mst. Amrao Bi and then by the plaintiff. With reference to this mutation Register Haqdaran Zamin for the years 1967-68 Exh.P.3 contains the entire description of the suit-land which is a single Khata owned by single person i.e. The plaintiff. It is settled by all present that the impugned decree for possession of the suit-land has been executed and the possession has been delivered to the respondent No.l without any objection by any of the defendants/judgment debtors in this case. There is no material on record to support the contention of the learned counsel for the appellants that there was some joint land which needed to be partitioned. We, therefore, do not find any force in the said contention of the learned counsel.
5. Coming to the said main contention of the learned counsel for the appellant, we find that the land was cancelled and allotted to Mst. Amrao Bi and further gifted to the plaintiff as far back as in the year 1983. Cancellation, further transfer and gift in favour of the plaintiff was upheld by this Court as well as by the apex Court. We also find that the learned counsel for the respondent has correctly stated regarding the observation of the Honourable Supreme Court of Pakistan. It has been observed in para. 15 of the judgment (Exh.P.7) that the allottee whose allotment has been cancelled would be deemed to be in unauthorized possession of the land. Section 2(12), Cr.P.C.
Defines "mesne profits"- of property to means "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but such not include profits due to improvements made by the person in wrongful possession". In the said case of Messrs R.C.D. Ball Bearing Ltd. , their lordships considered the provisions of section 23 of West Pakistan Employees Social Security Ordinance, 1965. It was held that the employer was undoubtedly liable to pay contributions under the said law, but so far as a penalty by way of increase under section 23 of the said Ordinance, is concerned, the same would not be payable during the currency of stay orders issued by High Court for the reasons that it would not constitute a failure on the part of the employer to pay the contribution.
6. In the present case, it having been proved that the defendants were continuing in possession without any title and as such being in wrongful possession are liable to pay the mesne profits as defined in the said section 2(12), C.P.C. It is not a penalty, rather, a refund of actual benefits received. The judgment cited by the learned counsel for the respondent in the said case of Mst.
Naseema Salahuddin and two others, fully covers the present case. We, therefore, do find that the appellant and other defendants were liable to pay the mesne profits. So far as the amount awarded is concerned, the same has not even been questioned. The claim is supported by "Naqsha Jharr Paidawar" (Exh.P.l) and the statement of P.W.l, who prepared the said document (Exh.P.l) as also the statement of the plaintiff and there is not rebuttal on record.
7. Having thus examined the records in the light of the-submissions made by the learned counsel for the parties, we do not find any force in this RFA which accordingly is dismissed. However, the parties are left to bear their own costs. The records of the learned Court below be returned back immediately.
Appeal-dismissed.