' MUNAWAR ALI KHAN, J.-This appeal is from the judgment of the learned Single Judge of this Court, dated 31-5-1982, whereby preliminary decree was passed and Mr. Abdul Matin, Advocate was appointed as Commissioner for the purpose of taking accounts, besides partitioning of the property and assessing the market value thereof.
2. The case of the respondents/plaintiffs, as reflected in the plaint, is to the following effect. The disputed plot bearing No, AM-71 with an area of 1,562 sq. Yards was purchased by late Shaikh Azizur Rehman husband of plaintiff Mst. Kulsoom Bi and other two plaintiffs Shaikh Muhammad Younis and Abdul Qadir, both sons of Shaikh Hafiz Muhammad Usman, in public auction held under Settlement Scheme No,
6. The said transfer of the plot in favour of the plaintiffs was authenticated first by P. T. O. No, 12516, dated 15-2-1962 and later by P. T. D No : KYC-022060, dated 6-10-1962.
Shaikh Azizur Rehman gifted his share of the disputed plot (1,113 sq. Yards) to his wife namely plaintiff Mst. Kulsoom Bi. However, the defendants who are from the same brother unauthorizedly occupied the disputed plot and continued to hold its possession despite repeated attempts of the plaintiffs to have them vacated the same. The defendants even raised katcha hutments on the said plot. As a last resort the plaintiffs served the defendants with notice on 14-9- 1971 but that too was not heeded by them and they did not vacate the plot. The plaintiffs, therefore, brought suit against the defendants with two-fold prayer namely, possession and mesne profits.
2. The suit was resisted by the defendants who took the plea that the suit was bad for misjoinder of parties and multifariousness and was not even otherwise maintainable According to them since they had occupied the plot individually and there was no community of interest they could not be joined together and proceeded against in the same suit. It was further pleaded by the defendants that court-fee paid by the plaintiffs was grossly inadequate and insufficient. They also raised the plea that the suit was not maintainable for want of service of notice on them under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958.
3. The learned Single Judge framed the following consent issues :-
(1) Is the suit bad for misjoinder and multifariousness of causes action, if so, its effect ?
(2) Is the suit as framed not maintainable in law ?
(3) Whether the court-fee paid is grossly inadequate and insufficient, if so, its effect ?
(4) Whether the suit is not maintainable for want of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958.
(5) Whether the suit is maintainable for the partition of the Plot No, A. M. 71, III-13-91, Artillery Maidan, Frere Road, Karachi.
(6) Whether the plaintiffs are not owners of suit plot?
(7) Have the defendants separate and independent rights and interest in respect of the respective premises in their occupation separately, if so, its effect ?
(8) Have the plaintiffs no cause of action against the defendants ?
(9) Whether the plaintiffs are entitled to claim possession of the suit plot ?
(10) Whether the plaintiffs are entitled to mesne profits, if so, at what rate and for what period ?
(11) What should the decree be ?
4. In support of their case, the plaintiffs examined one of -themselves namely Muhammad Younis and Jamilur Rehman. On behalf of defendants, besides defendants, Muhammad Ismail, Fida Ali, Allahwala and Nasiruddin have been examined. The learned Single Judge after considering the evidence led by the parties and the documents produced by them decreed the suit as mentioned above.
5. We have heard the learned counsel for the parties at great length and with their assistance have gone through the relevant documents.
6. It was first contended by the learned counsel for the appellants that although the issues were amended and in the wake of the amendment their number was increased to 11, the learned Single Judge gave findings only on 10 issues omitting to record any finding on amended issue No,
5. This issue is as follows : "Whether the suit is maintainable for the partition of the Plot No, A. M. 71, III-B-91, Artillery Maidan, Frere Road, Karachi?"
7. There is no doubt that no separate finding has been recorded on the above issue. But the question to be considered is if such omission operate to the detriment of the defendants. We have gone through the impugned judgment and have given our best thought to this point but we see no force in the argument that any prejudice has been caused to the defendants for the above reason.
It would appear that right from the commencement of the proceedings the learned Single Judge was conscious of the fact that beside other reliefs, the plaintiff has sought the relief of partition of the disputed property. Obviously he could grant such relief only when he was satisfied that suit was maintainable in respect of the partition. The impugned judgment shows that the learned Single Judge has discussed the point relating to partition in his discussion on issue No,
10. After taking ,note of the objection raised on behalf of the appellants that property cannot be partitioned and, therefore, no decree for partition can be passed, the learned Single Judge held :-"Considering the area of the plot and the shares of each of the co-owners, prima fade it cannot be determined now that the property is not capable of partition." He has also rejected the contention raised on behalf of the appellants that in view of Pacca houses having been constructed on the disputed plot, it was not possible to partition the property. The learned Single Judge held that in absence of evidence to show that the construction was made with approval of the owner and the Building Control Authority, such a construction could be ordered to be demolished by the concerned authorities.
' In view of the above discussion the learned Single Judge ultimately passed the following order :- "In these circumstances I will pass a preliminary decree for partition of the plot in suit in accordance with the specified shares by metes an bounds ' I, appoint Mr. Abdul Matin, Advocate as Commissioner for taking accounts, partition of the property and assessing the market value on the property on the date of filing the suit."
' Further order with regard to partition will obviously be passed in the light of the Commissioner's report after the same has been received by the learned Single Judge.. Thus it could not be argued that no finding has been recorded on the amended issue NO.
5. In our opinion this issue has been correctly decided by the learned Single Judge.
' The next argument of the learned counsel for the appellant centered round misjoinder of the defendants and multifariousness of causes of 'action.
' It was submitted by him that not only the act of occupying the plot by each defendant was independent of any other defendant's similar act but also all the defendants held possession of the specific portions of the said plot in their individual capacity and, therefore, they having no community of interest in the disputed property could not be lumped together in the same suit nor could they be proceeded against jointly. It was further averred by the learned counsel that the suit suffered from multifariousness as combining of the relief relating to partition of the disputed plot with other reliefs with regard to possession and mesne profits militates against Order II, rules 4, C. P.
C.
As provided in Order I, rule 3, C. P. C., such persons can be joined as defendants, against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if separate suits were brought against them, common questions of law or fact would arise. It is to be seen if in the instant case the defendants have been joined in accordance with the principle spelt out in the above provision of law. In this connection first all reference may be made to the evidence of Muhammad Unis, one of the plaintiffs. He has stated in his evidence that all the defendants hail from the same brotherhood (baradari) and had occupied the disputed plot at one and the same time. It is also in his evidence that defendant Muhammad Ismail had filed representative suit on behalf of the defendants in respect of the disputed plot challenging the auction in which they had purchased the plot. However, the said suit as well as the appeals arising therefrom were dismissed.
Although the defendant Muhammad Ismail has evaded giving a straight reply to the question if he had filed suit in respect of the disputed plot as an attorney of other defendants he stands exposed by a copy of the power-of-attorney produced by him which clearly shows that he was authorized by other defendants to pursue the litigations on their behalf. The defendants' another witness Allahwala has however candidly admitted that all the defendants occupied the disputed plot at a time. According to him even a majority of the defendants belong to the same caste. Thus his evidence lends direct support to the plaintiffs' case inasmuch as that the action of occupying the disputed plot by all the defendants was joint, as they belong to the same caste.
From the above evidence we are led to believe that the defendants who are from the same Biradari have not only occupied the disputed plot jointly but also have joined hands in fighting legal battles in respect thereof together. Therefore, we are of the view that they have been rightly joined as defendants. At this stage we would like to refer to the argument raised on behalf of the defendants that as some of them had purchased the plaintiff Abdul Qadir's share in the plot the reliefs of possession and mesne profits sought by the plaintiffs cannot be enforced, against them and as such they should have been dropped or else their joinder was unlawful. Undoubtedly some of the defendants have purchased the share of plaintiff Abdul Qadir in the plot and have thereby become owners. For that reason they could even he mentioned in the column of the plaintiffs but as has been rightly observed by the learned Single Judge that no person can be joined as plaintiff without hit consent. There is no evidence to show that after they purchased the share of plot belonging to plaintiff Abdul Qadir, their interest as to possession of the plot was restricted only to the purchased portion of the plot. Even if it may be so, still the plaintiffs have right to enforce the relief with regard to partition of the plot against them. Consequently their joinder as defendants was not unjustified and for the said reason they 'could not even be dropped.
' At this stage we may refer to the case-law cited at the bar. Reliance has been placed on three cases of Indian jurisdiction. The first in the series is reported as Laxmi Narayan v. Ramratan (1). In this case, in the suit for ejectment against several defendants who set up titles to different parts of a single plot of land, the view taken was that there was only one' cause of action and not several distinct and separate causes of action and as such the plaintiff was entitled to the recovery of possession of his land as a whole and not in fragments and it was a matter of indifference to him upon what grounds the different persons in possession might seek to justify the wrongful dispossession of what was his.
' In the other case reported as Rao Bahadur v. Ranganatham Chettiar (2) it was held : "The tendency of the later decisions both in England and in this country based on more or less similar provisions is to construe them liberally, and I think it may safely be stated, as a general rule, that where substantial common questions of fact are involved in different claims against different parties, their joinder in one suit will not be regarded as multifarious."
' The third Indian case on the same point is of Anukul Chandra'v. Bengal Province (3) wherein it was held : "It is now well settled that having regard to the provisions of Order I, rule 2 when common questions of law and fact are involved a suit impleading several defendants will not be multifarious only because the plaintiff's causes of action against the several defendants he has joined are different."
' In the Pakistani case reported as Michal Assely v. Abdul Sattar and Bros. (4), Qadeeruddin Ahmed, J. Had expressed his views as under :- ' Counsel for the defendant contended that these two causes of action could not be joined in one suit. These causes of action have arisen out of one contract, Exh.
7. If two suits had been instituted for the two claims, common questions of law and fact would have arisen in terms of Order I, rule 1, C. P. C. There is nothing in Order II, rule 3, C. P. C. Against joining such causes of action."
In view of the above authorities since same questions of law and fact would arise if separate suits were filed against the defendants in the instant case, joinder of parties as well as causes of action is in order and the objection of the defendants in this behalf is without force.
It was also contended on behalf of the defendants that combining of the relief of partition with other two reliefs regarding possession and mesne profits was in contravention of Order II, rule 4, C.
P. C. And as such illegal. Of course the said provision of law does not permit without leave of the court any cause of action to be joined with the suit for recovery of possession of immovable property excepting the claim for mesne profits or damages. But in the instant case it is an admitted position that the plaintiff had moved for amendment of the plaint, which was allowed and accordingly the relief with regard to partition was joined with other reliefs with permis-
(1) A 1 R 1924 Nag. 55 (2) AIR 1942 Mad. 334
(3) AIR 1947 Cal.. 374 (4) PLD 1960 (W. P.) Kar. 346 sion of the Court. Thus, the lacuna in this regard was rectified and the objection in this respect ceased to have any force.
' The next contenion of the learned counsel for the appellants was that since the appellants were in possession of the disputed plot from prior to its transfer to the phintiffs, they were not only entitled to notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 but also could not be ejected from the said plot except by an order of the Rent Controller having jurisdiction passed in rent proceedings instituted for that purpose. In reply to the above argument, the plaintiffs' Advocate submitted that the premises in dispute was neither a house nor a shop but merely a building site and, therefore, section 30 referred to above was inapplicable and the Rent Controller had no jurisdiction in the case. Obviously section 30 would be attracted if two conditions are satisfied : namely, first that the premises in question is a house or shop and second that the G defendants in possession though occupying the plot unauthorizedly have paid the rent and other public dues in respect of the said plot. In this connection reference may be made to the following authorities.
' According to the dictum laid down in the case of Ayoob and another v Afasjid-e-Noman ',1), the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is extended to a person who has occupied 'house' or 'shop' and not building site, authorizedly.
' The above case of Supreme Court has however been distinguished in the case of Muhammad Moosa and 2 others v. Shabir Ahmed and another (2) wherein it was held :- "No doubt the premises have been transferred to the respondents as open plots by the Rehabilitation Authorities but constructions have been raised thereon as early as 59;60, and they were being used for commercial and residential purposes at the time of transfer. Thus, the case would fall within purview of section 30."
' In the same case the learned Single Judge has also discussed the evolutionary changes that the word "possession" used in section 30 has undergone. According to him the latest definition includes even unauthorized possession provided that the rent and other public dues in respect of the house or shop have been paid by the occupant from the date of his occupation.
' In Mst. Safdar Bono and 4 others v. Inamul Hag and 2 others (3) the learned Single Judge of this Court expressed his views as under : "Section 30 of the said Act applies to house, shop, industrial concern, cinema house, or printing press. It does not apply to open plot of land. Thus, the appellant could not claim to be a statutory tenant of the plot in question under section 30 of the Said Act, nor any notice under section 30 was necessary for taking action against him for his eviction from the plot."
' In Subedar Muhammad Afzal v. Syed Nafis Ahmed and others (4) it was held : - "Section 30 of the Act extends protection to a person who is 'in possession of any evacuee house or shop or has been declared on or before the 20th day of December, 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August, 1947 in any
(1) 1973 SCMR 604 (2) 1984 CLC 3227
(3) 1984 CLC 2888 (4) PLD 1962 (W. P.) Lali. 45 industrial concern, evacuee house or printing press, which is transferred to any other person under the provisions of this Act . . . . . The case of Mistri Muhammad Sharif does not fall under any of the categories mentioned in section 30, as his tenancy rights are in respect of the site alone. He is not a tenant of the industrial concern known as the A. C. Engineering Works. It is clear, therefore, that Mistri Muhammad Sarif is not protected by section 30 of the Act."
The law laid down in the above authorities is that protection under section 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not available in case of open plot or building site. In the Sind case of Muhammad Moosa it has however been clarified that the benefit of above section is extended even in respect of building site or open plot if any structures even raised by the unauthorized occupants were in existence at the time of transfer of such building site or open plot.
It is also held in the said case that even unauthorized occupants of the plot or building site in question can qualify for the benefit of section 30 hereinabove provided they have cleared rent and other public dues in respect of the premises in their possession. Applying the above authorities it has to be examined as to what was the factual position of the defendants vis-a-vis the premises in their possession at the time of its transfer to the plaintiffs.
' According to plaintiff Muhammad Unis the premises transferred to them was a plot which was vacant at the time of its transfer to them. The P. T. D. Produced by him also shows that it was an open site. On the other hand the' case of the defendants, as is clear from the evidence of Muhammad Ismail, is that the defendants occupied the plot in 1947 or 1948 and that they had constructed hornets thereon. According to defendant Allahwalla, they had constructed Pacca houses. The defendants' witness, Nasiruddin has stated in his evidence that the defendants have been in possession of the plot since 1948. Reference may also be made to the observations made in the judgment, dated 26-2-1966 of the learned Additional District Judge, Karachi who had decided appeal arising from previous litigation between the parties.
' The learned Additional District Judge had made the following observations :- "At the request of the learned counsel for the parties, the site was inspected in their presence. On inspection it was found that there are hutments (Jhugis) on the plot in question, mostly made of mats poles and mudplaster site inspection shows that there are only two plots which have such poor temporary construction which have spoiled the beauty of other buildings in the locality. This haphazard and irregular construction on the plots does not fall within the definition of the clause cited by the learned counsel for the appellants. It is all temporary structure and they have put no permanent building on the plot."
' Two things are clear from the judgment of the learned Additional District Judge namely, first that when the plot in dispute was purchased by the respondents in open auction, the appellants were in occupation of the same, and second that the appellants had raised Katcha constructions on the said plot. It would appear that the said judgment was delivered in the appeal filed by the appellants from the judgment of the civil Court dismissing their suit in which they had challenged the auction under which the respondents had purchased the disputed plot. It would also appear that like the appellants' suit challenging the auction of the disputed plot, the two appeals first before the District Court and second before High Court were also dismissed.
After considering the evidence led by both the parties and the observations of the learned Additional District Judge referred to above, we have come to the conclusion that at the time of transfer of the disputed plot in favour of the respondents, the appellants were already in possession of the same and had even raised Katcha constructions thereon. There is however nothing to show that the appellants had paid rent and other public dues in respect of the premises in their possession. Accordingly even if the authority laid down in the Sind case of Muhammad Moosa referred to above is deemed to be applicable in the instant case, yet section 30 cannot be invoked by the appellants in their defence. Consequently their argument that they could not be ejected except by an order of Rent Controller is without any substance.
' Lastly the learned counsel for the appellants has taken serious exception to the finding arrived at by the learned Single Judge on the question of payment of court-fee. According to him the court- fee paid by the plaintiffs was grossly inadequate, as instead of paying the court-fee on the market value of the disputed plot at the time of filing the suit, they have paid the fee on the auction price paid by them nearly a decade ago. The learned counsel also attacked the deferment of payment of deficient court-fee as ordered by the learned Single Judge. In support of his contention he placed reliance on the case reported as Amir Ali v. Gul Muhammad (1), wherein the trial Court's direction to make good deficiency in court-fee after final disposal of suit was held to be without jurisdiction as the Court became functus officio after disposal of the case and, therefore, could not continue process of adjudication in procedural matters of the suit.
' It would appear that in the above-reported case the deficiency in court-fee was required to be made up after final disposal of the case. But that is not the case here. In the instant case the learned Single Judge has passed only a preliminary decree, entrusting the job of computing the J market value of the disputed property as it obtained at the time of institution of the suit to the Commissioner appointed for the purpose. This shows that further order with regard to payment of deficient court-fee would be made by the trial Court in the light of the Commissioner's report at the time of final disposal of the case. Such order could be made as with passing of preliminary decree the suit has not terminated but is said to be still pending. In this connection reference may be made to Muhammad Latif v. Muhammad Hafiz (2), wherein it was held :- "A partition suit in which only a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted at the time of the final decree.'
' Thus, since the case is said to be still pending the learned trial Judge could make appropriate order during pendency of the case with regard to payment of the deficient court-fee. The learned counsel's objection on the question of payment of court-fee is also without force.
' In view of the above discussion, the appeal has no merit and, therefore, it must fail. Accordingly we dismiss the appeal with no order as to costs.
(1) PLD 1968 Pesh. 106 (2) PLD 1954 FC 184