' ALI BAQAR NAJAFI, J.---This regular first appeal is directed against the judgment and decree dated 11-4-2002 recorded by the learned Civil Judge 1st Class, Rawalpindi, whereby he decreed the suit of the plaintiffs/respondents and a preliminary decree in the following terms was passed:--
(1) Plaintiffs are declared to be joint owners in suit property to the extent of 1/2 shares.
(2) They are entitled to decree in rendition of accounts regarding suit property since institution of this suit till final decision of suit.
' Mr. Mukhtar Ahmad Chaudhry, Advocate was appointed local commissioner to visit the spot for proposing the partition of the suit property. He was also directed to get accounts from defendant No,1, work out the accounts and submit his report as to how much amount was due against defendant No,
1. Fee was to be paid by the plaintiffs.
2. Briefly, the facts giving rise to the filing of this Regular First Appeal are that the property bearing No,105A and B commonly known as Capital Cinema situated at Bank Road, Rawalpindi was acquired by respondent No,1, Syed Khurshid Anwar, Mrs. A. Ghafoor, and Syed Mumtaz Hussain vide deed of exchange registered at No,344, Book No,1, Volume No,80 at page 398 in the office of Joint Registrar, Rawalpindi on 13-4-1955. The shares of the parties in the suit property are as follows:--
(a) Plaintiff No,1 1/6th
(b) Plaintiffs Nos.2 to 11 1/3rd
(c) Defendants Nos.1 to 3 1/3rd
(d) Defendants Nos.4 to 8 1/6th ' The plaintiffs and the defendants are in possession of the joint property and the affairs of the said property have been managing by defendant No,
1. The income being derived from the cinema business and income including business and rental income has been under the control of defendant No,1 but he has been paying meager amount to the plaintiffs from time to time and he has always avoided to render proper accounts in order to pay the due shares of the plaintiffs in the business and as such it was derived and appropriated by him. The plaintiffs called upon the defendants to effect partition for separation of shares of the plaintiffs. Defendant No,1 was also called upon to render accounts and to pay up the share of plaintiffs but in vain. The plaintiffs sought decree for possession by partition of 1/2nd share in the suit property, rendition of accounts and for recovery of amount found due be passed in favour of the plaintiffs and against the defendants. The suit was contested by the defendants stating therein that it is not maintainable in its present form; the plaintiffs were estoppped by their words and conduct. Defendant No,1 through his written statement submits that Cinema was running in loss and other partners were not prepared to share the losses and requested the answering defendants to run the cinema and to invest the money all by himself and prayed for dismissal of the suit. The learned trial court framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether proper court fee is not affixed? OPD
(3) Whether defendant No,1 is entitled to get special costs? OPD
(4) Whether Cinema is not partitionable? OPD
(5) Whether legal heirs of Begum A. Ghafoor have not been impleaded correctly? OPD
(6) Whether property in dispute is joint property of the parties, if so, what are legal share of parties? OPP
(7) Whether the plaintiff is entitled to get possession of 1/2 share of suit property through partition against defendants as prayed for? OPP
(8) Whether the plaintiff is entitled to get decree for rendition of accounts and for mesne profits against defendants as prayed for? OPD (8.A) Whether plaintiffs are estopped by their words and conduct to bring this suit? OPD (8. B) Whether defendant No,1 has spent from his own pocket on construction, renovation, repairs, development, improvements and replacement of machinery etc., as detailed in schedules A, B & C? OPD-1.
(9) Relief.
3. Both the parties adduced their respective evidence oral as well as documentary. The learned trial court after hearing the parties passed the judgment impugned herein.
4. Learned counsel for the appellant/defendant No,1 contends that the Military Estate Officer has not been arrayed as necessary party; that there is no discussion on schedules A, Band C which were relevant for the issue No,8-B and the learned trial Court erroneously decided the said issue; that no specific amount was claimed; that issue No,8 is relating to the decree for rendition of account and for mesne profit which has been wrongly decided in favour of the plaintiffs; that the defendant No,1 was not empowered to run any business, therefore, there is no liability of the appellant; the trial court has failed to exercise jurisdiction vested in it while deciding the case; that findings of the learned trial court on all the issues are not sustainable in the eyes of law and liable to be set aside; that the procedure adopted by the trial court in deciding the suit in question is also illegal and in violation of provisions of C.P.C.; that the learned trial court has acted in grave illegality in passing the decree of rendition of accounts against the appellant; that the remedy was the recovery of amount and not rendition of account. Places reliance on PAKISTAN INTERNTIONAL AIRLINES CORPORATION . KARACHI MUNICIPAL CORPORATION CORPORAION through Chairman /Administrator, Karachi and another (PLD 1994 Karachi 343).
5. On the other hand, learned counsel for the respondents has vehemently opposed the appeal by submitting that admittedly, they are co-sharer in the joint property, a commercial cinema; that partnership is still intact; that nothing was paid to the respondents-plaintiffs; that the respondents are either co-sharer, or co-owners; that the appellant could only manage the property but nothing was paid; that the appellant either acted as an agent or principal under sections 182, 186 and 213 of the Contract Act; that the appellant was bound to run the business under the customary law; that the commission will work out the amount on the basis of original documents.
4(sic). We have heard the learned counsel for the parties and perused the available record.
5(sic). The status of the partners is admitted as co-owners; therefore, the first part of decree that plaintiffs/respondents are entitled 1/2 shares is not seriously challenged. The second part of the decree regarding rendition of accounts of suit property since institution is under challenge. The dispute is the claim in the profit of commercial cinema and related business, which according to the appellants, went in losses and even then some shares have been paid. It means that the claim of the respondents in the profit is true. As far as the settlement of the account is concerned, it can be made with the mutual consent of the partners/sharers at any time or at the time of conclusion of the partnership. Even otherwise, the status of a co-sharer who is running the affairs of commercial business is either an agent or a principal.
6. In a suit for rendition of account the plaintiff is required to establish (a) partnership (b) share of each member in the partnership (c) profit or loss (d) type of business (e) duration of partnership
(f) accounts.
7. If this criteria is applied respondent/plaintiff has established the business of commercial cinema which had earned some profit or even loss at the end of the day which can be ascertained on the basis of accounts. The finding of the trial court on issue No,8-B is based on evidence and an admitted position. Since a commission has been appointed to work out the accounts, therefore, no illegality is committed by the trial Court. The agent of the co-sharer running a joint business is that of an agent having authority either expressly or impliedly who is bound to render proper accounts to his principal on demand, as mentioned in sections 182, 186 and 213 of the Contract Act.
8. Even otherwise, the claim is not merely on the enjoyment of the immovable-property simplicity for which an ascertained claim of a specific calculated amount should have been filed.
9. The learned trial court has rightly appreciated the legal as well as factual points and therefore, no interference is called for.
10. In view of what has been stated above, the RFA is dismissed leaving the parties to bear their on costs.