1. ' This is a suit for possession partition and manse profits, Sheikh Azizur Rehman the late husband of plaintiff No,1 and plaintiff No,2 and Abdul Qadir purchased Plot No,AM 71 Sheet A.M. Measuring 1562 square yards, Karachi under settlement scheme. P.T.D. and P.T.O were issued in their favour.
2. Thereafter, Azizur Rehman gifted his share in the said property admeasuring 1113 square yards to his wife, the plaintiff No,1, and her name was duly mutated in the records of City Survey, Karachi. The defendants are members of one Baradri who have according to the plaintiffs illegally taken possession of the afore-stated plot without consent and permission of the plaintiffs and Sh.Azizur Rehman. The suit was filed for possession and manse profits by all the three co-owners mentioned above but during the pendency of the suit on 11-6-75 Abdul Qadir sold his share in the land to defendants No,1, 13, 14, 19, 20 and 21. The plaint was, therefore, amended and Abdul Qadir's name was struck off and newly purchasers were added as defendants. The plaintiffs, therefore, added prayer for partition of the property amongst the co-owneRs, The defendants Nos.2 to 4, ,6 to 14 and 16 to 18 filed the written statement in which besides tricking preliminary legal objections relating to the maintainability of the suit denied the title of the plaintiffs. It was alleged that the property could not have been transferred to the plaintiffs under the settlement scheme. It was further stated that the suit is bad for want of notice under section 30 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958. It was further averred that the plaintiffs have failed to identify the respective tenements occupied by the defendants which premises have been in existence since much before 20th December, 1958. It was denied that the plaintiffs are entitled to eject the defendants or claim manse profits. On the basis of the pleadings the following issues were framed:--
(1) Is the suit bad for misjoinder and multifariousness? If so, what effect?
(2) Is the suit as framed not maintainable in law?
(3) Is the court-fee paid grossly inadequate and insufficient/If so, to what effect?
(4) Is the suit not maintainable for want of notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958?
(5) Are the plaintiffs not the owners of the suit plot?
(6) Have the defendant's separate and independent right and interest in respect of their premises which each one occupies? If so, to what effect?
(7) Has the \plaintiffs no cause of action against the defendants?
(8) Are the plaintiffs entitled to possession of the suit plot?
(9) Are the plaintiffs entitled to manse profits?
(10) What 'should the decree be?
3. ' ISSUE NO,1,--Muhammad Ismail D.W.1 has stated that the whole plot is in occupation of the defendants who belong to the same Baradri. It was also stated by him that no other person except the members of his Baradri are in occupation of this plat. The defendants had filed a representative suit against the plaintiffs which was dismissed. The defendant Muhammad Ismail in that representative suit had challenged that the auction of plot in suit held on 17-10-1961 in pursuance of which the plot was transferred to the plaintiff and P.T.O. was issued was illegal and without jurisdiction. It was prayed that injunction may be issued .against them not to recover rent from them or eject them from the plot. This suit was dismissed and even an appeal filed against this judgment was also dismissed. Mr. Abrar Hassan the learned counsel for the defendants stated that defendants Nos. 1, 13, 14, 19, 20 and 21 have purchased the shares of Abdul Kadir and are, therefore, co-owners with the plaintiffs. In these circumstances no relief can be sought against defendant and either they should be dropped or joined as a plaintiffs. No party can be joined as ._a plaintiff without his consent and in "'these circumstances he can be added as a defendant. The question of dropping them does not arise because ultimately the plain tiffs are seeking partition of the property to which these defendants being the co-owners are necessary parties. Under Order I, rule 3 all persons may be joined in respect of dispute in which common questions of law and facts are involved. The relief sought arises out of the same act or transaction or series of transactions and, therefore, in order to avoid multiplicity of proceedings the defendants have properly been joined in this action. The learned counsel for the defendants has also pointed out that there is misjoinder of causes of action but it does not seem to be correct as Order II, rule 3, C.P.C. provides that a plaintiff ' may unite in the same suit several causes of action against the same defendants jointly. In the present case there are common questions of law and fact involved and, therefore, there is no misjoinder of causes of action. In this regard Mr.Khalilur Rehman has referred to AIR 1924 Nag. 55; PLD 1976 Quetta 1 and PLD 1968 Dacca 185. In view of the above discussion I need not dilate upon these authorities and my findings on this issue is in the negative.
4. ' ISSUE NO,2.-- Mr.Abrar Hassan the learned counsel for the defendants has contended that as the suit is barred by Settlement Scheme and that transfer could not have been made to the plaintiffs, the plaintiffs are not entitled to file the suit. The question of plaintiffs entitlement and the transfer made by the Settlement Authorities was agitated by the defendants in the suit as stated above which has been decided against them. The same issue, therefore, cannot be agitated now in these proceedings. Abdul Qadir one of the co-owners has sold his share in the property to defendants Nos.1, 13, 14, 19, 20 and 21. Suit for partition is, therefore, maintainable against them. My finding on the issue is in the negative.
5. ' ISSUE NO,3.--The plaintiff have valued the suit on the auction price at which they had purchased it in the year 1962. They have valued it at Rs,2,71,000 and paid ad valorem court-fee. The plaintiffs have stated that the price of the land between 1962-72 had remained the same. The defendants have however, stated that the property is of a higher value but no evidence has been led to prove the market value. However, on preliminary decree for partition being granted, a Commissioner will be appointed who will determine the value of the property in the year 1972 when the suit was filed and the plaintiff will be bound to pay court-fee according to that valuation.
6. ' ISSUE NO.4.--The plaintiffs had purchased the property and P.T.O. was issued in their name. Their name has also been mutated in the records of right in the City Survey record. The property purchased from the Settlement Department was described as building site. It is, therefore, clear that section 30 of the Displaced Persons' Compensation and Rehabilitation Act, 1958 will not apply to such property. Reference may be made to 1973 SCMR 604. Mr.Abrar Hassan the learned counsel for the defendants has relied on PLD 1962 Lah. 45 but in view of the afforested Supreme Court authority it is of no force. My finding is in the negative.
7. ' ISSUE NO.5.--P.T.O. and P.T.D. were issued in favour of the plaintiffs. Even defendants Nos.1, 13, 14, 19, 20 and 21 have purchased the share of property of Abdul Kadir and are the co-owners of the property. The P.T.O., P.T.D., extract from property register and the deed of conveyance made by Abdul Kadir in favour of Muhammad Ismail, Mr.Yousuf, Mohammad Adris, Muhammad Younus, Mst.
8. Zubaida Begum and Muhammad Yamin who are all defendants clearly proves that the plaintiffs are the co-owners of the property. My finding is that plaintiffs are co-owners of the property.
9. ' ISSUE NO.6.--The defendants can be divided in two categories one who are co-owners and the others who are being treated by the plaintiffs as trespasseRs, Issue No,6 will however relate only to the co-owners because such defendants who are neither the transferees nor the purchaser of the property cannot merely by virtue of occupation claim to have an independent right and interest in respect of premises occupied by them unless they plead adverse possession which has not been pleaded. So far the co-owners are concerned they have got a share and independent right and interest in the property itself. The question for consideration will be whether in view of Exh.11 a sketch plan showing private partition, rights of all the co-owners will be governed by the terms of that document. Exh.11 was executed on 20-12-1974 by the three transferees. It is entitled "proposed sub- division of Plot No,71 A.M. Artillery Maiden, Karachi" and is duly signed by all the three transferees. It shows private partition of the property specifying the shares of all the three co-owners by meats and bounds. The share of Muhammad Younus is adjacent to Plot No,
72. Thereafter, is the share of Sh.Abdul Kadir and after that the entire area has been given to Mst.Kulsoom Bibi who owns 1,113 square yards. Abdul Kadir owned 230 Square yards and Muhammad Younus 219.Square yards. The portion allocated to Sh.Abdul Kadir is 140.10" x 14.8". The area jointly comes to 1562 square yards.
10. After this alleged private partition the shares allocated to each co owners do not seem to have been recorded in the property register of the City Survey. Even in the sale-deed executed by Abdul Kadir the area of 230 square yards has been mentioned but in the schedule of property there is no reference to this petition and the boundry has been given in the following manner: ' North by Plot No,72, South by Plot No,7 ' East by Nallah. West by Hashim Gazdar Road.
11. ' This shows that Sh. Abdul Kadir had not made any reference to this partition nor anywhere specified that his share in the property to be conveyed is located in the middle portion of Exh.11. The expression middle portion I am using only for the reason that in Exh. 11 on one side is the plot of Kulsoom Bibi and on the other is of Sh. Muhammad Younus. Except the document Exh.11 there is no other evidence to show that the parties had agreed to partition the property in terms of this document. If the parties had effected a private partition then besides the proposed sketch plan there should have been some other document also which may be in the nature of a declaration by the parties or a proper recording in the records of City Survey. Even the plaintiffs have not produced any notice which they or either of them as owner of a particular property may have issued to such defendants who are trespasseRs, The plaintiffs and the purchasers have, therefore, no separate and independent share in the plot in dispute and the same can be determined only at the time of partition of the property.
12. ' ISSUE NO.7.--In view of the discussion on the above issues the plaintiffs have cause of action.
13. ' ISSUE NO. 8.--As discussed above the plaintiffs, defendants 1, 13, 14, 10, 20 and 21 are co-sharers having specific share. The plaintiff No, 1 owns 1113 Square yards of land in the said plot the plaintiff No, 2 owns 219 square yards and defendants 1, 13, 14, 19, 20 and 21 jointly own 230 square yards. Rest of the defendants have failed to show in what capacity or under what legal right they are in possession of the plot. Mr.Abrar Hassan the learned counsel for the defendants has contended that they have been in possession and have built permanent construction with electric and water connection and are having their ration cards and, therefore, their possession cannot be disturbed.
14. The grant of electric connection or issuance of a ration card does not vest any right in the property.
15. In the facts and circumstances of the case as the plaintiffs have made out a valid title to the property they are entitled to possession of their share in the property.
16. ' ISSUE NO. 9.--The plaintiffs have claimed manse profits but they have not specified the share and the amount which each of the said defendants would be liable to pay these circumstances the plaintiffs are entitled to manse profits, the rate and the period and amount shall be determined by the Commissioner who will be appointed in the case.
17. ' ISSUE NO. 10.--Mr.Abrar Hassan the learned counsel for the defendant relying on PLD 1975 Lah. 1393 has contended that the property cannot be partitioned and, therefore, no decree for partition can be passed. Considering the area of the plot and the shares of each of the co-owners prima facie it cannot be determined now that the property is not capable of partition. Mr.Abrar Hasan the learned counsel has 'contended that as the defendants have their Pucca houses it is not possible that the property may be partitioned. Such defendants who \have been held to be trespassers merely by raising construction which not authorized cannot frustrate the right of the owner to seek possession and partition. There is nothing in evidence to show that the construction made is with the approval of the owner and the Building Control Authority. In the absence of such approval these constructions can be ordered to be demolished by the relevant authorities as well. In these circumstances I will pass a preliminary decree for partition of the plot in suit in accordance with the specified shares by metes and bounds. I further decree that the plaintiffs will be entitled to possession of their share of property. The plaintiffs will also be entitled to manse profits from the defendants who after accounts are taken by the Commis sioner are found liable to pay to the plaintiffs. I, therefore, pass a preliminary decree for accounts against the defendants. I appoint Mr. Abdul Mateen, Advocate as Commissioner for taking accounts, partition of the property and assessing the market value of the property on the date of filing the suit. The defendants to bear the cost of suit.
18. Preliminary decree passed.