' MRS. SYEDA TAHIRA SAFDAR, J.--- The petitioners through Revision Petitions bearing No,333 of 2002 and No,91 of 2003, assailed the judgment dated 31st August, 2002 of Additional District and Sessions Judge/Presiding Officer, 1st Labour Court, Quetta, and judgment dated 18th February, 2003 of Additional District Judge-1, Quetta, whereby the appeals preferred by 'both the parties against the judgment dated 19th July, 2001 of the Senior Civil Judge-I Quetta, were decided. As these petitions arising from the same judgment of the trial Court, therefore, to avoid any conflict in the findings both the petitions are decided through this common order.
2. In Civil Revision Petition No,333 of 2002 the petitioners Muhammad Rafiq and others felt dissatisfied with a part of the order dated 31st August, 2002 of Additional District and Sessions Judge/ Presiding Officer, 1st Labour Court, Quetta, whereby the relief for grant of mesne profit was allowed. The impugned order was questioned on the grounds that the appellate court without giving them any opportunity of being heard decided the appeal, thereby deprived them of their right. Further, the evidence, and the material available on record was not properly appreciated, which resulted in an erroneous decision. It was further agitated that in view of the pendency of Civil Appeal No,27 of 2002 before Additional District. Judge-I, Quetta there was no occasion for the Additional District and Sessions Judge/ Presiding Officer, 1st Labour Court, Quetta to pass a judgment in the matter, rather both the appeals were to be heard by one and the same court.
Further, the fact that an application for transfer of the case was already pending before the court was ignored, and no decision was made thereon in time. A prayer was made for setting aside of the impugned order or in alternate the impugned judgment be set aside, and the case be transferred to the Additional District Judge-I, Quetta, with a direction to decide the same afresh along with pending Appeal No,27 of 2001.
3. In Civil Revision Petition No,91 of 2003 the petitioners Muhammad Rafiq and ten others questioned judgment dated 19th July, 2001 of Senior Civil Judge-I, Quetta, whereby the suit filed by the respondents Nos.1 to 8 was decreed as prayed for, and, the judgment/ decree dated 18th February 2003 of Additional District Judge-I, Quetta, whereby their (petitioners') appeal preferred against the order was dismissed. Both the judgments were questioned by raising contention that the impugned judgments were passed in contravention of the facts and the law, while the findings based on surmises and conjectures, therefore. Not sustainable. Furthermore, the material and the evidence before the courts below were not properly appreciated, and the decision arrived was in contravention thereof. Further, the facts that the suit properties were partitioned in the lifetime of Haji Pir Muhammad, and respondents Nos.1 to 8 got their respective shares though duly established, in presence thereof no cause of action remained for filing of the suit, but it was ignored. Further, the will dated 12th November, 1995 executed by Haji Pir Muhammad was not properly appreciated, rather disbelieved despite the fact that it (will) was a registered document, duly tendered by the representative of the Sub-Registrar, Quetta, therefore, being a registered document the attesting witnesses thereof need not to be produced. But, the courts below failed to understand the law, thereby committed illegality. Furthermore, the concurrent findings of the courts below were based on miss-appreciation and misreading of the evidence, therefore, reappraisal of the matter was required by this court. It was prayed that both the impugned judgments be set aside, and the suit filed by respondents Nos.1 to 8 be dismissed.
4. The learned counsel for the parties placed their averments while jointly arguing both the petitions. The learned counsel for the petitioners stated that the plaint was defectively drafted, failed to describe the status of the legal heirs, and also the necessary details of the properties against which the claim was made. Further, the personal law applicable in the matter was not disclosed, and in absence thereof no order could be made for determination of the shares of the parties. The learned counsel further stated that non-production of one of the marginal witnesses of the will was due to the fact that he died prior to filing of the suit. Being a registered document, producing of its marginal witnesses was not necessary. The learned counsel referred to a criminal case wherein one of the plaintiffs Abdul Wahid while recording his statement admitted the fact of effecting of the partition between the parties in respect of the suit property, brought on record as Exh.D/1 and Exh.D/2, thereby contended that these documents were required to be considered, but ignored, thereby an error was committed. Furthermore, .The fact that in the lifetime of their father i,e, Haji Pir Muhammad, one of his sons namely Abdul Baqi died, which .Disentitled his legal heirs to inherit the left over property by Pir Muhammad, but the courts below failed to make any order to the effect. Further, the shares of the parties were also left undetermined, which was an error. It was contention of the . Learned counsel that if the fact of effecting of the partition was disbelieved, in such case whole of the property was required to be made subject-matter of the suit, but it was not done, therefore, no relief could be granted in favour of the respondents/plaintiffs.
5. The learned counsel objected valuation of the suit, which was termed as improper, but no findings were recorded thereon. Furthermore, the judgments of the courts below were non- speaking, and failed to fulfil the. Legal requirements, therefore, not sustainable. It was further contended that though separate appeals were filed against the judgment of the trial Court dated 19th July, 2001 by the parties, but wrong observations of the appellate court prejudiced their rights.
The learned counsel further contended that no decision was made on merits of the case, rather the findings were given without appreciation of the evidence, and the material on record. Furthermore, decree sheet was defectively prepared, therefore, needs rectification. The learned counsel was of the view that the suit failed if the questioned property determined to be Shamilat, as the remaining shareholders were not made party to the proceedings. 'But, while ignoring the law and the facts the suit was allowed, therefore, the decision of the courts below liable to be set aside with a direction for remand of the case to the trial Court for deciding it afresh after framing of proper issues.
6. In reply the learned counsel for respondents Nos.1 to 8 controverted the contentions raised by the counsel for the petitioners. The learned counsel contended that the execution of the will dated 12th November, 1995 was not free from all doubts, due to the fact that the alleged partition was described to be effected in the year 1984, but the will was executed years after. Further, though defendants' witness No,1 (D.W.-1) deposed that he witnessed execution of the will, which was stated to be written by Haji Pir Muhammad with his own handwriting in Urdu. But, in fact the will produced before the court was in English language and being a typed one, thereby destroyed its credibility. It was contention of the learned counsel that the will made in excess of 1/3rd of the property had no binding effect, except with consent of the parties. Furthermore, double share in no way can be given to a legal heir by way of a will, being an established principle. Therefore, the execution of the will if established even then it cannot be enforced. Furthermore, a legal heir cannot be deprived of his right of inheritance by executing a will. The learned counsel stated that the fact that the petitioners were receiving rent of some of the properties was established, which made the respondents entitled for the mesne profit, which was rightly granted to them by the appellate court, therefore, needs no interference.
7. The facts as revealed from the papers annexed with the petitions are that respondents Nos.1 to 8 being the plaintiffs filed a suit seeking declaration of their title being successors of Haji Pir Muhammad along with the petitioners/defendants, thereby entitled to get their share in the left over properties by the deceased Pir Muhammad, their predecessor. An order was also sought to the effect that the property being purchased by Abdul Baqi, and in possession of three of the plaintiffs, being his legal heirs, none other had any right therein. The prayer for a preliminary decree was to the effect that shares of the parties be determined, and rendition of accounts be made, and on partition possession be delivered to all the parties of their respective shares. Further, declaring the will as forged, and of no legal consequence was also prayed. A decree for their entitlement of mesne profit for the last three years was also included in the prayer.
8. In reply to the suit the present petitioners being defendants Nos. 1 to 11 not only objected maintainability of the suit, but prayed for its dismissal being filed beyond the stipulated period. On merits the blood relation existed between the parties was admitted, with a denial of existence of ownership in favour of Abdul Baqi, in respect of a piece of landed property claimed to be owned by Haji Pir Muhammad, therefore, devolved on all of his legal heirs. Though the properties detail whereof given in the plaint were admitted to be owned by their predecessor Haji Pir Muhammad, but in addition thereto it was their (petitioners') contention that in the lifetime of Haji Pir Muhammad the properties owned by him were partitioned, and respective shares were handed over to them (parties). Therefore, no claim left with the plaintiffs/ respondents Nos.1 to 8 in the properties purchased after the act of partition by Haji Pir Muhammad, which exclusively vests with them (replying defendants/present petitioners). Furthermore. The questioned will claimed to be validly executed on 12th November, 1995 by Haji Pir Muhammad was duly registered, therefore, in presence thereof no right remains in favour of the plaintiffs/respondents Nos.1 to 8.
9. The reply of the official defendant stated nil on merits of the case, rather disclosed the fact that a shop situated in Police Plaza was allotted in favour of Haji Pir Muhammad in the year 1986, who paid its monthly rent, and till date it never transferred in the names of any of the legal heirs,
10. In his reply defendant No,14 only sought dismissal of the suit to his extent, as he had been unnecessarily joined to the proceedings.
11. The trial Court framed issues, called for evidence of the parties and decided the matter vide judgment dated 19th July, 2001, thereby allowed the suit and decree was made in the terms; "It is declared that the plaintiffs are share-holders, being legal heirs of late Pir Muhammad in the property left mentioned in para No,5 and the defendants are restrained to dispose off alienating or transferring the property in any manner, the plaintiffs failed to prove that how much income the defendants are getting from the property in dispute, therefore, the relief of mesne profit is refused."
12. This judgment was questioned by the present petitioners by way of filing an appeal. But, a separate appeal was filed by the plaintiffs/respondents Nos.1 to 8 being aggrieved of the refusal of the relief for mesne profit. But, the appeals were decided by a common judgment dated 1st December, 2001, by Additional District Judge-I, Quetta, whereby the case was remanded to the trial Court for re-writing of the judgment to the extent of ascertaining the mesne profit. This order was questioned by respondents Nos.1 to 8 by way of filing a petition for revision of the decision, which was decided by this court vide judgment dated 16th April, 2002. The matter was remanded to the appellate court for a decision on merits in accordance with law. On remand the appeals were separately decided by the two courts. The appeal filed by Lal Bakht and others/ respondents Nos.1 to 8 was decided by the Additional District and Sessions Judge/ Presiding Officer, 1st Labour Court, Quetta vide judgment dated 31st August, 2002. As the mentioned appeal was only pertained to the prayer for mesne profit, which was refused by the trial Court, therefore, the appellate court confined its findings only to said extent, and allowed the relief. While the appeal preferred by the present petitioners Muhammad Rafiq and others was entertained, and decided by the Additional District Judge-I, Quetta vide judgment dated 18th February, 2003, who concurred with the findings of the trial Court.
13. Though there was some misconception on part of this court as well as by the appellate courts with regard to the filing of the second appeal by the other party, but this misconception in no way affected the merits of the case, because both the appellate courts recorded their findings while attending to the merits of the case. Therefore, it was merely an overlook of a fact, which does not vitiate the proceedings held, and the decision made by the appellate courts.
14. In the case in hand a right of inheritance in legacy of Haji Pir Muhammad, predecessor of the parties, was matter in issue. Respondents Nos.1 to 8 being the plaintiffs to the suit claimed their right in status of widow, sons, daughters and grandsons. Of Haji Pir Muhammad, while the petitioners being the defendants also maintained their status as of sons, daughters and widow of Haji Pir Muhammad. Therefore, to this extent there was no denial from either side about each others status, and the suit property being legacy of Haji Pir Muhammad, and their right of succession. But, the fact of effecting of partition of the properties, and separation of the shares and handing thereof to the parties by their predecessor i,e, Haji Pir Muhammad in his lifetime, was matter in issue. The petitioners asserted effecting of the partition, and handing over of their respective shares at described time, but the other side appeared with a denial. Further, the execution of will by the deceased was also matter of controversy between the two.
15. Keeping in view the pleadings of the parties as the right to succeed Pir Muhammad by both the parties was not a denied fact, but receiving their (plaintiffs') share in lifetime of their father Haji Pir Muhammad, on basis of partition, and confirmation of the fact by execution of a will, shifted the burden on shoulders of the petitioners/ defendants. In view thereof the act of partition was to be established at first instance, and execution of the will, confirming the act, would follow it. The petitioners/defendants produced three witnesses. D.W.-1 Badeen Khan and D.W.-3 Noor Khan for the purpose. Though both the witnesses deposed about effecting of the partition between the parties in lifetime of Haji Pir. Muhammad, but, their statements were mere assertions; therefore, needs corroboration from some other evidence. D.W.-2 Abdul Ghaffar, appeared as representative of Sub-Registrar Office, Quetta, produced the purported will as Exh:D 1-A, affirming it to be a registered document. The execution of this document was strongly contested by the respondents Nos.1 to 8 plaintiffs. Therefore, despite the fact that the will was a registered deed, some' more evidence was required for its corroboration, and to establish its authenticity. The marginal witnesses were not produced, rather one of them was described to be dead, while for the second one there was no reason.
16. As far as D.W.-1 Badeen Khan was concerned, he described himself to be present at the occasion, and witnessed the execution of the will. He stated that the will was written in his presence by Haji Pir Muhammad in Urdu with his own handwriting. But, his statement appeared to be contrary to the document present on record as Ex: D/1, which was in English language and also a typed one. In addition thereto at the time' of recording of his statement in 2000 the witness Badeen Khan described his age as 28 years, it reflects that he was hardly 12 years old at the time of execution of the will. Therefore, his presence at the relevant time had no logical explanation. The contradiction and variations appearing in his statement lessen his credibility. While D.W.-3 Noor Khan though narrated about effecting of the partition, but unable to show his presence at the relevant time, and witnessed the' process. There was no other evidence to the effect. Furthermore, during all these years no change was made in the revenue record, nor the respective shares of the parties were got recorded in their names at relevant time or thereafter. Therefore, the fact of physical partition of the suit property remained unproved.
17. The will Exh.D/1 being the basic document, therefore, needs deep probe and effect thereof. The perusal whereof reveals that the date of its execution mentioned as 12th November, 1995, after nine years of the alleged partition, which was described to be effected in the year 1984. The paragraph Nos.2 and 3 of the will stated the properties given to the first group consisting of the plaintiffs/present respondents Nos. I to 8. While the properties fell in the shares of the present petitioners second group, detail whereof provided in paragraph No,4 of the will. But, paragraph No,5 of the will described the details of some more properties which were asserted to be purchased by Haji Pir Muhammad later in time, after effecting of the alleged partition. Though the will speaks about effecting of the partition and describing the details of properties devolved on both the parties. But, to the extent of properties newly purchased only details thereof appeared in the deed, but to said extent there was no will by the executant. But, the material on record disclosed the fact that the properties described in paragraph .No,5 of the will remained in possession of the defendants/present petitioners on death of their father, and they enjoyed the benefits without having any will in their favour to the extent. Further, the petitioners have not denied this fact. Rather, they claimed the said properties to be devolved in their share.
18. Therefore, while noting down the above narrated facts the learned counsel for the petitioners was asked that the alleged partition was made in the lifetime of Haji Pir Muhammad, and the parties got their respective shares if established, but still the question remains to the extent of the properties purchased thereafter, details provided in paragraph No,5 of the will, to whom this property would devolve? The learned counsel was reluctant to reply. But, contended that they (petitioners) were in possession of the mentioned properties during lifetime of their father, therefore, no right left with the other party to said extent. If the contention of the learned counsel be relied, and partition of the properties and handing over the shares believed, in spite of the same the property, details whereof given in paragraph No,5 of the will, still remains being legacy of their predecessor, and a right to succeed exists in favour of all the legal heirs, and no one can be deprived thereof.
19. The burden rests with the petitioners, but they failed to discharge. The marginal witnesses of the will were not produced, nor any other witness in whose presence, the process of partition was held, appeared. The sole witness of the occasion D.W.-1 failed to confirm the deed. In addition thereto the signatures of Haji Pir Muhammad present on the will were not tried to be verified nor any signatures made in routine by Haji Pir Muhammad on some other documents were produced to enable the court to make comparison thereof. In absence of specific evidence, and material the purported will was not proved to the state of satisfaction. Neither the fact of the partition and delivery of the possession of the respective shares was established. On both counts the petitioners failed.
20. But as far as claim of mesne profit was concerned, the burden was on the plaintiffs/respondents Nos.1 to 8 to establish their entitlement. The respondents Nos.1 to 8 being the plaintiffs came forward with a plea that the defendants/present petitioners were utilizing the property, thereby receiving the rent, and the income incurred from the properties, therefore, they being legal heirs of the deceased also entitled for receiving of the profits for last three years as per their share. The trial Court refused the relief; but the appellate court allowed the same on appeal vide judgment dated 31st August, 2002. But, while granting the same the appellate court only relied on the oral evidence to the effect that the rent was being received by the petitioners, and the orchards were their (petitioners') source of income. But, the appellate court ignored that no evidence was available on the record to specify the amount/ profits received by the petitioners during all these years by utilizing the suit property.
21. The term mesne profit defined in section 2(12) Civil Procedure Code (C.P.C.), its reproduction would be beneficial:- "2(12) C.P.C. "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."
22. The onus was on the plaintiffs/respondents Nos.1 to 7 to establish the fact that the property was in wrongful possession of the petitioners/ defendants which make them entitled for mesne profit.
The only object of awarding of a decree for mesne profit is to compensate a person entitled to be in possession of a property, but being kept out of possession, thereby deprived from the profits arrived out of such property. But, it is also an established principle that a person who is not in wrongful possession of such property or in possession thereof as a co- B sharer before partition of the same, he cannot be made accountable for the profits earned during the period. Therefore, while deciding the question thereby assessing the mesne profit the person claiming only entitled to the extent whatever the person in wrongful possession has collected from the property or the amount which without wilful default he might have received. Therefore, some specific evidence was required initially to establish that the petitioners/defendants were in wrongful possession, and secondly they received the profits arriving therefrom.
23. In present case both the parties being the successors of Haji Pir Muhammad, therefore, entitled to inherent the legacy left by him. C Therefore, the fact that the left over property in possession of some of the legal heirs of the deceased, and being utilized by him would not amount to be in his wrongful possession. The established principle that the possession of a co-sharer of a joint property in absence of proof of ouster or exclusion of other co-sharer cannot term as wrongful possession. The principle behind it that the person who is not in wrongful possession cannot be accountable for the profits before partition. Furthermore, before physical partition it cannot be ascertained that which piece of the property would devolve in the share of which of the shareholder. In view of the same the petitioners and respondents Nos.1 to 7 were on same footings, and possession of the petitioners cannot be termed as wrongful, therefore, the plaintiffs/respondents Nos.1 to 8 at this stage cannot raise a claim for mesne profit. The appellate court failed to consider this legal aspect of the case, and wrongly arrived to the conclusion that they being the owners and co-sharers entitled for its mesne profit, amount whereof not determined, which was further an error.
24. In view of the above discussion the petitioners have failed to point out any illegality or irregularity in the judgments of the trial Court dated 19th July, 2001 and 18th February, 2003 of the Additional District Judge-I, Quetta, and needs no interference by this court, which are hereby upheld. Resultantly they failed in Civil Revision Petition No,91 of 2003.
25. But, as far as Civil Revision Petition No,333 of 2002 is concerned, the appellate court has failed to consider the legal requirement for grant of relief of mesne profit, and the evidence required for the purpose, erroneously arrived to the conclusion that the plaintiffs/ respondents Nos.1 to 8 were entitled for mesne profit, which is liable to be set aside. Therefore, the judgment dated 31st August, 2002 of Additional District and Sessions Judge/ Presiding Officer, 1st Labour Court, Quetta is hereby set aside.
26. In addition thereto it is observed that though the trial court in its judgment dated 19th July, 2001 decided issue No,3 to the effect that the plaintiffs are entitled to get their respective shares from the properties left by Haji Pir Muhammad as his legal heirs. But while making an order failed to include this relief in the final judgment. Further, the decree also failed to disclose the relief of partition and handing over of their respective shares, already prayed in the suit, despite the fact that positive findings were given in the judgment to the effect. Therefore, the mentioned reliefs must have been allowed, and included in the decree, but left by the trial court, and overlooked by the appellate court. Therefore, amending the decree sheet will be justified in the circumstances.
27. The decree dated 19th July, 2001 is ordered to be amended to the effect that after the words "paragraph No,5" the following sentence shall be added:-- "The plaintiffs are entitled to get their respective shares from the properties left by late Haji Pir Muhammad as his legal heirs through partition along with the defendants Nos.1 to 11."
' Amended decree sheet be prepared.
' The Revision Petitions bearing No,333 of 2002, and No,91 of 2003 are disposed of in the above terms. There shall be no orders as to costs: