1. ' MUSHIR ALAM, J.--- Appellant has challenged the judgment and decree, dated 7-1-2003 passed by 2nd Senior Civil Judge, Jacobabad whereunder the suit of the plaintiff/respondent for partition, separate possession and permanent injunction was decreed, at the same time claim for mesne profit was declined. The respondents have also preferred cross-objections in terms of Order XLI, rule 22, C.P.C. Challenged the order of the learned Court, below whereby claim for mesne profit was declined while decreeing the suit for partition and separate possession.
2. ' Brief facts leading to the instant appeal as well as to cross-objection appears to be that the appellant respondent are brother inter se. It was claimed in the plaint that, the plaintiff is owner of 50% share in respect of the property bearing C.S. No,159 Ward No,4 D.C. Chowk, Jacobabad, popularly known as Green Land Hotel, herein after referred to as subject property. It was claimed that the defendants/appellant herein have leased out the subject property reaping benefits to the exclusion of the plaintiff. It was asserted that despite demand raised through legal notice, the defendants have not cared to share the profit and/or partition of the suit property.
3. ' Defendant filed the written statement. It was not disputed that plaintiff had 50% share in the subject property. It was however, denied that the plaintiff had any share in the construction. It was asserted that construction over the plot was raised by the defendant and other brothers. It was further pleaded that pursuant to a family settlement in the lieu of plaintiff share in the subject property and estate left behind by their father, the plaintiff was given 7 shops, one bungalow and plot 4000 square yards at Shandadkot. It was also alleged that the defendant has disposed such property to other persons. As regards notices, it was stated that said notices was geared to cause undue harassm ent did not merit any consideration.
4. ' On the pleadings of the parties following issues were framed:--
(1) Whether the suit is not maintainable at law?
(2) Whether this Court has got no jurisdiction?
(3) Whether the plaintiff has got no cause of action to file the present suit?
(4) Whether the plaintiff is owner to the extent of 50 Paisa share in the suit property. If yes, is he entitled to separate possession with mesne profit? If yes, to what extent at what rate and for what period?.
(5) Whether the share of the plaintiff in the suit property is already satisfied out of the family property at Shandadkot, privately. If yes, its effect?
(6) What should be decree be?
5. ' The plaintiff examined himself and so also one Muneer Ahmed. The defendant examined himself and one Ahmed Ali Khan.
6. ' As regard maintainability of suit, it was concluded by the Court while deciding issue No,1 that since the defendant is in possession of the subject property as co-owner, therefore, the suit for settlement of account could have been filed and not for mesne profit. Suit for mesne profit was accordingly held to be not maintainable. It appears that the Issues Nos.2 and 3 were not contested by the parties.
7. ' As regards 'Issue No,4, learned Court below arrived at a conclusion that the plaintiff is owner to the extent of 50% share in the subject property. It was also held that the plaintiff is entitled to partition and separate possession. However, since while deciding Issue No,1, it was concluded that suit for mesne profit is not maintainable, therefore, claim based on mesne profit was declined.
8. ' Issue No,5, it appears has framed on the defence raised by the defendant that plaintiff has already received his due share in the family property as detailed in the written statement. Learned Court did not agree to such defence for the reason that no evidence in support of such plea was led before the Court. Consequently, the suit was decreed for partition and separate possession, relief for mesne profit rejected. Preliminary decree was ordered to be prepared.
9. ' It was contended by Mr. Muhammad Anwar Durrani, learned counsel for the appellant that besides the plaintiff and defendant, their deceased father Haji Lakhmir, had left other legal heirs and parties to the suit. According to him, parties to the suit were merely Benami, without joinder of other legal heirs suit was bad for non-joinder of necessary parties. It was further stated that plaintiff never claimed any settlement of account, therefore, learned trial Court had rightly dismissed the claim Of mesne profit. Mr. Durrani seriously challenged the title of the plaintiff, According to him, plaintiff has not shown that as to how he acquired the suit property. In support of his contention he has placed reliance on Mst. Jamila Begum v. Awan Ulnas and, others PLD 1978 Lah.
10. 1376.
11. ' As regard contention of Mr. Durrani, that the plaintiff has not shown his source of acquiring subject property. It was urged by Mr. Hamid, that plaintiff has proved through evidence Exh.43, the extract from property register to show that plaintiff is owner of 50% share in the subject property. He urged that the construction over the suit property was raised by their deceased father the construction was completed in the year 1996. Their father died in the year 1998. It was contended that the defendant did not produce any evidence to show that the construction was raised by the defendant out of his resources.
12. ' Responding to the objections as to non-joinder of necessary parties, he contended that, one of the brothers of the parties appeared for the defendant, who neither claimed any right in the suit property nor applied for his joinder in joinder of any other legal heir. It was, therefore, urged that a party having full knowledge of the claim in suit cannot resist decree on plea of non-joinder, in support he has placed reliance on Shafqatullah and others v. District and Sessions Judge, Noshera 2001 SCM R 274.
13. ' As regards assertion of learned counsel for the appellant, that the plaintiff was merely Benami, Mr. Hamid contended that such plea was not raised in the written statement. It cannot be allowed to be raised in appeal. Mr. Han-lid Bhurgri supported the impugned judgment on the issue of division and separate partition of the plaintiff's share.
14. ' As regard cross-objection to challenge the judgment of the Court below, declining relief of mesne profit. It was contended that claim for mesne profit as against the co-owner or the joint owner can very well be maintained, there is no bar under law to make such claim. In support he has placed reliance on Mt. Mohankuar and others v. Bhagatram and others AIR 1993 Nag. 316, Raghubans Narain Singh v. Khub Lai Singh AIR 1931 PC 209; Babburu Basavayya v. Babburu Guravayya AIR 1951 Mad. 938 and Atta Muhammad v. Sahibzada Manzoor Ahmed and others 1992 SCM R 138, Mr. Hamid, learned counsel for the respondent, contended that admittedly the appellant/defendant is running business to the exclusion of the plaintiff. According to him, once the plaintiff has proved his title over the suit property to the extent of 50% share. It has also been established that he is being unjustly denied his share out of income therefore, the plaintiff is very much entitled to claim mesne profit. Which claim was declined by the learned trial Court, without any cogent reason. Respondent under circumstances seek reversal of judgment to the extent of mesne profit.
15. ' Mr. Durrani, learned counsel for the appellant, objected to the very maintainability of the cross- objections. He urged that cross-objections, could only be filed by the defendants in suit in case any judgment or decree is passed against them and not by a party who is in suit. According to him, plaintiff in suit if aggrieved by judgment and decree could only challenge the same by filing appeal and not otherwise. However, he was not able to substantiate such arguments by any precedent.
16. ' I have heard the arguments and perused the record. Claim of the plaintiff/respondent that he is owner to the extent of 50% share in the subject property was not displaced by the defendant.
17. Plaintiff in support of his claim had, produced extract from the Property Register Exh.43. Such claim was neither refuted nor disputed in cross appellant/ defendant, in his evidence admitted that subject property was purchased by his father in his name and in the name of plaintiff/respondent in equal share. What the defendant disputed was that, the construction over the plot in question was raised by him along with other brothers. The plaintiff did not contribute any amount towards construction. To a specific question put to Mr. Durrani, by the Court as to what evidence was led to prove that the investment to raise construction was made by the defendant or his brothers he candidly admitted that no such evidence was led. It has also come on the record that the property was purchased by the late father in the respective name of the plaintiff and defendant and father died in the year 1998 and hotel commenced operation in 1997 a year before his demise. Defendant failed to adduce any evidence to substantiate the plea of raising construction out of his own resources. In absence of evidence on such score, learned trial Court rightly arrived at the conclusion that the plaintiff and defendants are co-owners in the suit property including the construction to the extent of 50% each.
18. ' As regard, challenge to the judgment and decree, on the score of non-joinder of necessary parties. Prom the record if is evident that the plaintiff and the defendant are the co-owner to the extent of 50.% each, there is nothing on record to show that there are any other claimants to the suit property. Even one of the brothers of the plaintiff, namely Ahmed Ali appeared in the witness- box, he never claimed any hostile claim in the suit property. He only supported the unsubstantiated claim of the defendant that the construction was raised by the defendant and other brothers. NO evidence was produced to support claim investment over construction either by the defendant or him. Therefore, it appears from the record that at least one of the brothers of the parties was in complete know of the legal proceeding and the claim of the plaintiff, he chose not to make any counter or hostile claim against the parties to the suit nor made any effort to join the proceedings.
19. Appellant cannot be allowed to hold brief of a party who is not interested to contest the claim in suit. There was no impediment in the way of any of the legal heir of late Lakhmir or, for the matter in the way of appellant to apply for their joinder as party to the proeeedings. Appellant has not shown any prejudice to him on account of non-joinder of any other legal heir, therefore, suit cannot be defeated on such count.
20. ' Only defence taken by the appellant/defendant, to resist the claim in suit, appears to be that the plaintiff/respondent was paid his due share in the said property.. It was asserted that plaintiff was given properties including shops, plots and bungalow in Shandadkot. In cross-examination the appellant/defendant deposed "I have got no documentary evidence which may indicate the plaintiff was given shops, bungalow and plot of Shandadkot. In view of his share in the suit property". It was further deposed "I do not remember city survey numbers of the shops, bungalow and plot given to the plaintiff in (lieu) of his share in the suit property. It is incorrect to say that the plaintiff has not received shops, bungalows and plot at Shandadkot, for his share in the suit property. " , The defendant was not able to substantiate his defence plea based on exchange of property at Shandadkot in lieu of plaintiff's share in the suit property. Therefore, no exception to judgment direction preparation of preliminary decree could be taken.
21. 'Once entitlement of the plaintiff '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. Learned trial Court has rightly passed a preliminary decree. Preparation of preliminary decree will facilitate the Court to pass final decree for the partition of the suit property and in case partition of the suit property is not possible by metes and bound then the trial Court may sell and dispose of the property by putting it to an open auction with Option to the parties to the suit, to match the highest offer and if the circumstance so permit limited auction between the parties to buy out the share of other may be ordered.
22. ' Therefore, finding no discrepancy, non-reading or misreading of the evidence the appeal is dismissed.
23. ' Now adverting to cross-objection in order to appreciate contention of Mr. Durrani, learned counsel for the appellant, Order XLI, rule 22, C.P.C. Is reproduced as follows:--
22. Upon hearing, respondent may object to decree as if he had preferred separate appeal:-- (1).
24. Any respondent, though he may not have appealed from any part of decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross- objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service or within such further time as the Appellate Court may see fit to allow.
25. Form of objection and provisions applicable thereto.--- (2) Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
26. ' On bare reading of the above provision, it is clear that any of the respondents in appeal, irrespective whether they where plaintiff or defendant before the trial Court, may prefer cross- objections. Such cross-objections are for all intent and purposes is treated and tried as an appeal.
27. Only limitation to maintain cross-objections provided is that such cross-objections are to be filed within 30 days from the date of service of notice of appeal.
28. ' From the record it appears that the instant appeal was admitted for regular hearing on 8-4-2003 and notice was ordered. On 23-4-2003, when other applications were fixed in Court Mr. Bhurgri learned counsel for the respondents had already filed cross-objection on 18-4-2003 even before the service was effected. Therefore, the objection of the appellant as to maintainability of cross- objection being misconceived is rejected.
29. ' Now adverting to the merits of the claim of mesne profit, section 2(12), C.P.C. Defines mesne profit as follows:-- "Section 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 therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
30. 'On reading of above definition, it is clear that any person in possession of the property enjoying benefit therefrom to the exclusion of rightful owner is liable to pay rent or mesne profit.
31. ' 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 case 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.
32. ' 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.
33. '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.
34. For the foregoing reasons, the appeal filed by the appellant was .Dismissed and the cross- objections by the respondent were allowed.