1. ' This revision application arises out of the judgments passed by the two Courts below.
2. ' Briefly the facts of the case are that the present respondent had filed Civil Suit being Suit No,615 of 1982 seeking the reliefs of declaration, possession, mesne profits, injunction and damages. In the suit, the case of the respondent/plaintiff is that she was allotted a plot bearing No,A/406 in Ashraf Nagar Housing Scheme (now known as Paposh Nagar), Karachi by the then Pakistan Refugees Rehabilitation Finance Corporation, which is now succeeded by the present applicant and is hereinafter referred to as the Corporation. According to the plaintiff, she had paid the lease money and ground rent on 1-1-1980 and a sub-licence was registered in her favour by the Corporation on 6-5-1980. The plaintiff has also contended that consequently she received the possession of the demised plot. However, on 30-5-1981, the respondent was served with a notice of cancellation by the Corporation on the grounds that the said plot had been previously allotted to Mrs. Hashim Raza, that the said plots were reserved for ex-employees of the Corporation and that the respondent was already in occupation of a house in Karachi. The said notice was replied to by the respondent on 6-7-1981 and the order of cancellation was passed on 15-7-1981. The, present respondent then filed the above-said suit. The suit was decreed on 21-11-1985 by IIIrd Senior Civil Judge, Karachi.
3. However, the learned trial Court allowed mesne profit at the rate of Rs,8 per day from cancellation of the plot till filing of the suit in addition to the relief prayed for in this respect at the rate of Rs,100 from the date of institution of suit till handing over of possession, Being aggrieved, the Corporation filed the appeal being Civil Appeal No,6 of 1986, which was dismissed by IVth Additional District and Sessions Judge, Karachi (West) vide judgment dated 31-10-1987. However, the learned lower appellate Court also while passing the judgment varied the amount of mesne profit granted to the respondent and allowed her the same at the rate of Rs,100 per day from the date of allotment till possession. The Corporation ,then filed this revision application, which was firstly dismissed for non-prosecution on 26-5-1991 but restored on 1-3-1991.
4. ' I have heard the learned counsel for the parties. At the very outset Mr. Mahmood Iqbal, the learned counsel for the applicant/Corporation has stated that he will press this revision application only on the issue of mesne profits and not on two other issues. The learned counsel for the applicant has submitted that the two Courts below have erred in allowing this issue in favour of the present respondent in absence of evidence on the record except the oral word of the respondent. He has also submitted that the two Courts below have misinterpreted the phrase "mesne profit" as defined in section 2(12) of Civil Procedure Code. The learned counsel has further submitted that in these circumstances the finding given by the two Courts below allowing mesne profit to the respondent would be an exercise of jurisdiction not vesting in the same.
5. ' Repelling the above contentions, Mr. Muhammad Tasneem, the learned counsel for the respondent has submitted that in the first instance the prayer in the present revision application is outside the scope of section 115 of Civil Procedure Code inasmuch as the finding of the two Courts below on the issue of mesne profit is a concurrent finding of fact and this Court in exercise of revisional jurisdiction cannot re-open the said question. He has further pointed out that the revisional jurisdiction can be exercised in exceptional cases only where the lower Courts have exceeded the limits of their jurisdiction or have acted with material illegality or irregularity. He has placed reliance on the case of Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53.
6. He has also referred to the case of Muhammad Bukhsh v. Kadir Bukhsh 1986 SCMR 412. The learned counsel has also relied on the case of Mst. Shireen Bai v. Mst. Kulsoom Bai PLD 1980 Karachi 296.
7. ' As regards the quantum of mesne profits, the learned counsel for the respondent has conceded that the judgment of the lower appellate Court, to the extent that he has allowed the mesne profit at the rate of Rs,100 per day from the date of allotment till possession, is beyond the scope of the prayer made in the suit and that he would be satisfied if the judgment and decree of the two Courts below are amended to the extent that the respondent be allowed the relief as prayed.
8. ' I have given anxious consideration to the submissions made by the learned counsel for the parties. In the first instance, it may be observed that there is no cavil about the proposition of law that this Court while exercising revisional jurisdiction cannot interfere with the concurrent findings of the two A Courts below except when decision is based on no evidence, inadmissible evidence or is so purverse as to cause grave injustice as held in the above cited Supreme Court case of Kanwal Nain v. Fateh Khan. In the present case I have examined the record and proceedings of the two Courts below. The record shows that on the pleadings of the plaintiff in paragraph 5 of her plaint she had admitted that she was put in possession, of demised plot after the registration of sub- licence on 6-54980. Again in paragraph 8 of the plaint, the respondent states that in consequence of the cancellation order, she was dispossessed by the present applicants. The applicants in their written statement have not denied the fact asserted in paragraph 8 of the plaint to the extent of dispossession of the respondent. The respondent in her own evidence has also admitted that after having received possession she had been in possession of the demised plot for more than four years, whereas the order of cancellation of is passed only after 14 months of the registration of sub-licence. This contention of the respondent goes to belie her case as set up in the case as she was dispossessed by the applicants in consequence of cancellation order as according to her own evidence even after the issuance of cancellation order she had remained in possession of the demised plot for about three years. In these circumstances it was incumbent upon the respondent to have produced evidence on record to show as to from what date she was dispossessed or by whom she was dispossessed because she would be entitled to claim mesne profit from the person who had come in wrongful possession of the said property, The two Courts below have not discussed this aspect while dealing with the Issue No,5 pertaining to mesne profit. Mesne profits have been defined in section 2(12) of Civil Procedure Code which reads as under; "(12) `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."
9. In view of above definition of mesne profits, it is clear that the same is recoverable only from the person in wrongful possession of such property. In my view, therefore, it would be in the interest of justice that the case be remanded allowing both the parties a further opportunity to lead evidence on Issue No,5.
10. ' With the above observations, I allow this revision application, set aside the judgment of the two Court below on Issue No,5 whereas the judgment on other issues is maintained. The matter is accordingly remanded to the trial Court with the direction to allow the parties to lead evidence on Issue No,5 only and then give finding on this issue afresh. However, there will be no order as to costs.