ANWAAR HUSSAIN, J.---This writ petition is directed against judgment dated 03.05.2021 passed by learned Additional District Judge, Sahiwal who accepted civil revision of respondent No.1 and reversed order dated 19.01.2021 passed by learned Civil Judge 1st Class, Sahiwal whereby application under Section 7 of the Punjab Partition of Immovable Property Act, 2012 ("the Act, 2012") filed by respondent No.1 was dismissed. Orders dated 16.06.2021 and 22.06.2021 passed by the learned trial court to deposit interim mesne profits in the court as a consequence of judgment dated 03.05.2021 have been challenged as well.
2. Brief facts of the case are that respondent No.1 instituted a suit for partition and mesne profits under Sections 4 and 7 of the Act, 2012 against the petitioner alleging that the parties are real brothers and co-owners of a building measuring 01 Marla and 2 Sarsahi, which constitutes a shop, a room constructed thereon and a basement, forming part of Khewar No. 1837, Khatooni No 1860, Ihata No.7517/2; Bairoon Sorey Gali, Sahiwal (hereinafter "the suit property") in equal shares but the petitioner has rented out the same to different tenants and is receiving Rs.95,000/- monthly rent from the tenants but respondent No.1 is being deprived from 50% share of the mesne profits despite repeated demands by respondent No.1 upon the petitioner, which fell on deaf ears. Hence, the suit was instituted. Respondent No.1 also filed application under Section 7 of the Act, 2012 for payment of mesne profits during pendency of the suit ("the application").
3. The petitioner contested the suit by filing written statement, inter alia, asserting that he is the sole and real owner of the suit property and respondent No.1 is just a benamidar. He also filed written reply to the application. After hearing both sides, learned trial court dismissed the application vide order dated 19.01.2021. Feeling aggrieved, respondent No.1 filed revision petition, which was allowed by learned Additional District Judge, Sahiwal, vide judgment dated 03.05.2021, whereafter learned trial court passed order dated 16.06.2021 directing the petitioner for deposit of mesne profits in the court. Hence, this writ petition has been filed.
4. Learned counsel for the petitioner submits that in a suit for partition filed by respondent No.1, who is real brother of the present petitioner, in respect of the suit property, the learned revisional court below vide impugned judgment dated 03.05.2021, while setting aside order dated 19.01.2021 passed by learned trial court, has directed the petitioner to deposit mesne profits in terms of Section 7 of the Act without appreciating the fact that question of title was in dispute between the parties and pending adjudication before the civil court. It has been submitted that the learned revisional court has erred in appreciating the true import of Section 8 of the Act, 2012, which contemplates that when there is a disputed question regarding title or share in the immovable property, the court shall decide such question before proceeding further in the matter under the Act, 2012.
5. Conversely, learned counsel for respondent No.1 submits that Section 7 is independent of Section 8 of the Act, 2012 and the latter is not impediment, in the way of the court, for determination of mesne profits under Section 7 while exercising jurisdiction under the Act, 2012.
6. Arguments heard. Record perused.
7. The entire controversy revolves around the interplay of the two provisions of the Act, 2012 i.e., Sections 7 and 8 and following questions of law are required to be adjudicated in the instant petition: i. What is the true import of Sections 7 and 8 of the Act, 2012? ii. Whether Section 8 of the Act 2012 has an overriding effect qua Section 7 debarring the trial court from directing to deposit the Interim mesne profits pending the adjudication of the suit till dispute as to title or share under Section 8 is resolved?
8. In order to better appreciate the 'controversy and render opinion of this Court on the questions of law formulated hereinabove, it is imperative to examine the meaning and object of mesne profits under the law in general and the Act, 2012 in particular. Under the general law, the term mesne profits simply means rents or profits accruing during the rightful owner's exclusion from his property as defined under Section 2(12) read with Order II Rule 4 and Order XX, Rule 12 of Code of Civil Procedure Code, 1908 ("the C.P.C."). In Lucky Kochuvareed v. P Mariappa Gounder and others (AIR 1979 SC 1214), the Indian Supreme Court held that object of awarding a decree for mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property even though he was entitled to possession thereof. In addition to the provisions governing award of mesne profits under the provisions of C.P.C., the Act, 2012 has also envisaged protection to the owner seeking separate possession through partition under the Act ibid by not only defining the term 'nestle profits but also Contemplating separate provisions pertaining to both interim as well final determinations of the same by virtue of Sections 7 and 12 thereunder. In this regard, it is better to examine and understand the scheme of the Act, 2012, which lays down mechanism and procedure for the partition of urban immovable property. Section 3(1)(c) while defining "immovable property" for the purposes of the Act, 2012 excludes agricultural land from the scope of the Act, 2012. Section 3(1)(e) defines "mesne profits" as the approximate rental benefit which the co-owner in possession of the immovable property gains to the exclusion of any other co-owner during the pendency of the suit under the Act, 2012. Section 4 of the Act, 2012 contemplates that an owner of immoveable property may file a suit for partition impleading all co-owners. Section 5 of the Act, 2012 lays down procedural modalities for the service and appearance of the defendant. Section 5 also confers the power upon the court to proceed ex-parte in case of non-appearance of the defendant. Section 6 calls upon the defendant to file written statement within 30 days and failure of the defendant to adhere to subsection (1) of Section 6 is to be visited with penal consequences of subsection (2) thereof. Section 7 comes into play thereafter, which relates to determination of interim mesne profits by contemplating that the court, on the first date of hearing or as soon thereafter as possible, pending adjudication of the suit, direct the co-owner in possession of the immovable property, which is subject matter of partition, to deposit, on monthly or quarterly basis such interim mesne profits in the court as it may determine on account of share of mesne profits of the co- owner not in possession of the property. For the case of reference, Section 7 is reproduced as under: "7. Mesne profits pending adjudication.---(1) On the first date of hearing or as soon as thereafter, the Court may, pending adjudication of the suit, direct the co-owner, in possession of the immovable property, to deposit, either on monthly or quarterly basis, such interim mesne profits in the Court as it may determine on account of share of a co-owner not in possession of the property.
(2) If an order under subsection (1) is passed, the co-owner in possession of the property shall deposit the amount on or before the date fixed by the Court and, in the absence of any such order, on or before 15th of the month or the first month of the quarter for which the amount is due.
(3) If the co-owner fails to deposit the amount under this section within the time specified under subsection (2), the Court shall--
(a) in case he is plaintiff, dismiss his suit; and
(b) in case he is defendant, strike off his defence and in that event, he shall not be entitled to lead any evidence."
(Emphasis supplied)
On the other hand, Section 8 of the Act, 2012 states that where there is a dispute of title or share in the property, the court shall decide such question before proceeding further in the suit under the Act ibid. Such determination under sub-section (1) of Section 8 is to be deemed a decree in terms of the Code. Section 8 of the Act, 2012 is reproduced as under: "8. Question of title or share.--
(1) When there is a dispute as to the title or share in the immovable property, the Court shall decide such question before proceeding further in the suit under this Act.
(2) The determination of a question of title or share of the immovable property by the Court under subsection (1) shall be deemed to be a decree in terms of the Code."
It is the case of the petitioner side that Section 8 has an overriding effect on Section 7; however, it appears that the interpretation being rendered by the petitioner side is not convincing inasmuch as Section 7 calls upon the court to determine interim mesne profits pending adjudication of the suit. It is pertinent to note that Section 7 is an interim arrangement whereby the co-owner in possession of immovable property is to be directed to deposit in the court the interim mesne profits pending adjudication of the suit. On the other hand, where there is a dispute as to title or share, the court is to decide such question before proceeding further in terms of Section 8. This implies that the determination of the title or share under Section 8 is to be through a full-fledged trial as the same is to be deemed as a decree under the Act, 2012. The contention of the petitioner's side that whenever the dispute as to title or 'share is raised, Section 8 is to take precedence over Section 7 cannot be held to be an invariable position as the same would nullify the object of Section 7, which is to ensure as an interim arrangement that co-owner in possession of the property does not avail undue benefit by depriving the co-owner not in possession. Bare perusal of the provision indicates that purpose is to ensure that a person who is deprived of his possession, as well as income being derived from the property forming subject matter of the suit under the Act, 2012 can obtain such compensation by way of approximate rental of the suit property. It is noted that under Section 4 of the Act, 2012, an owner of immovable property is entitled to file a suit for partition against the co-owners, which implies that a plaintiff of suit for partition under the Act ibid, has to have ownership over the property sought to be partitioned. Therefore, ownership over the property is a necessary desideratum and condition precedent vesting locus standi in the plaintiff.
Once the suit has been filed, the procedure under Section 5 is to be triggered for service upon the defendant and his appearance. The appearance of the defendant is to be followed by the filing of written statement and consequences of failure to file written statement within the stipulated time.
Filing of written statement brings forth the case of both the parties before the court. This is followed by Section 7 of the Act, 2012. At this stage, flashback to the text of Section 7 is relevant which lays down that "on the first date of hearing or as soon as thereafter", the court may determine interim mesne profits. The term first date of hearing has not been defined in the Act, 2012. However, in terms of Section 15 of the Act, 2012 the provisions of the C.P.C. have been rendered applicable to the proceedings under the Act, 2012 albeit subject to the Act ibid. The term first date of hearing used in the C.P.C. has come for judicial interpretation wherein it has been held to be date of hearing when issues are to be framed. Reference is made to Haji Chaseetu and 9 others v. Sarwar Khan (1990 MLD 1368), Malik Riazullah v. Mst. Dilnasheen and others (2018 CLC 1569) and Sultan Ahmad Sheikh v. GETZ Pharma (Pvt.) Ltd. through Chief Executive Officer (2011 MLD 1944). Thus, the court in terms of Section 7 is obligated to determine interim mesne profits on the first date of hearing or as soon as thereafter. On the other hand, Section 8 envisages that the dispute as to title or share shall be decided first before proceeding further under the Act, 2012. It obligates the court to decide the issue of title or share first and thereafter proceed further in the suit. The use of words "proceeding further" needs to be seen in juxtaposition with the words "on the first date of hearing or as soon as thereafter" used in. Sections 8 and 7 respectively. While interim mesne profits are to be determined at the first date of hearing, the dispute as to title or share amongst the parties may arise in myriad manner variable with the facts of each case all of which may not be conceived and which requires full fledge trial. For instance, in a suit of partition between two or more parties, there may come up, a person not made party to the suit, with application under Order I Rule 10 of the C.P.C. for impleadment thereof and raise dispute as to title of all the prior parties to the suit. Similarly, the dispute as to title or share may arise between and/or amongst the existing parties to the suit. As a natural corollary, the stage of the suit at which such dispute as to title or share may arise can also vary and differ in each case. Even further to that, there may be cases in which the interim mesne profits under Section 7 is passed and subsequent proceedings of the suit move forward and, at a subsequent stage, the issue of title or share inter se the parties and/or some other party desirous to be made is raised. In such like situation, the interim mesne profits order under Section 7 would already have been passed. Therefore, the legislature does not seem to have intended to render the operational scope of Section 7 subservient to Section 8 or to ring-fence and put Sections 7 and 8 in a bracket or in other words to make applicability of Section 7 contingent upon Section 8, rather both of them operate independent of each other. Since Section 7 vests discretion in the court to determine mesne profits at the first date of hearing pending adjudication of the suit whereas Section 8 makes it imperative upon court to decide the issue to title or dispute before proceeding further in the' suit, therefore, it would be against the intention of the legislature and object of the Act, 2012 to circumscribe or put a lid of Section 8 on the discretion vested in the court under Section 7 by the legislature. The purpose is that the court considering the facts of each case may 'direct the deposit of interim mesne profits or deny the same pending adjudication of the suit to safeguard a party not in possession. Needless to mention that such discretion has to be exercised in a judicial manner by the trial court in each case depending upon the prima facie positions of the parties with respect to the co-ownership.
9. Mesne profits is also dealt with under the Act, 2012 by virtue of Section 12 as well and perusal thereof reinforces the discussion hereinabove inasmuch as Section 7 is an interim order whereby the court is to make an interim arrangement to the extent of mesne profits, which is tentative determination to be deposited in the court to the extent of share of the party not in possession of the property whereas under Section 12 of the Act, 2012, the court may award the mesne profits to a co-owner not in possession of the joint immovable property by deducting the same from the share of the co-owner in possession of the property or by directing the co-owner in possession of the property to pay the same to the co-owner not in possession of the property. Subsection (2) of Section 12 contemplates that while awarding the mesne profits at the conclusion of the trial, the court shall; take into account the interim mesne A profits deposited under Section 7 meaning thereby that the amount so deposited is to be adjusted while passing the final decree. Even on equitable grounds, it is not tenable that in the face of prima facie status of co-ownership having been brought forth, such co-owner not in possession is continued to be deprived from mesne profits and the other co-owner in possession is allowed to enrich himself unjustly by merely raising a dispute to title or share. This would provide an unsheathed sword in the hands of every co-owner in possession to continue to deprive the co-owner not in possession of mesne profits by raising title dispute in every case howsoever week. Therefore, such interpretation would defeat the object of Section 7 and trample over the intention of the legislature couched in the said provision of the Act, 2012.
10. Having opined that Section 8 of the Act, 2012 has no overriding effect qua Section 7, I would move on to apply the same to the instant case. It is on the record that the respondent who is plaintiff before the trial court is co-owner with equal share as per jamabandi for the year 2001- 2002, which makes it a prima facie case in favour of the respondent and on the basis of the same the revisional court has rightly held that the trial court failed in exercising its discretion in a judicial manner. If upon final adjudication of the matter, the petitioner succeeds to establish his case qua his real and sole ownership, amount so deposited as mesne profits can always be decreed in his favour, however if the petitioner fails and order under Section 7 is not in field, the respondent will be deprived of his due share thus constraining him to initiate further proceedings for execution/recovery of the same, hence, equity also leans in favour of the respondent in instant case and therefore, learned revisional court has rightly exercised the discretion, which requires determination of interim mesne profits under Section 7 of the Act, 2012 before proceedings further in the matter.
11. In view of the foregoing, the instant petition is dismissed being devoid of merits and the judgment of revisional court is upheld and resultantly orders passed by the trial court dated 16.06.2021 as well as 22.06.2021 in compliance with the judgment of the revisional court are also upheld.
Petition dismissed.