ABUL INAM, J.- The brief facts given rise to the filing of this Suit are that, Plaintiff No. 1 who is father of other plaintiffs and defendants No. 1 to 4 who, in the year 1957, Electrical Contractor of M/s. Pakistan Construction Company (Pvt.) Limited (hereinafter called PCCL') which was originally cited as defendant No, 5 in this suit and subsequently the name of PCCL was declared from the plaintiff.
Certain amounts became due and payable by the said PCCL to /plaintiff No. 1 in respect of services rendered by plaintiff No. 1 for the said Company and in lieu of payment of such amounts, PCCL offered a plot of land bearing No. L-2, Modern Colony. Manghopir Road, Karachi, admeasuring 450 sq. Yds. With construction thereon to plaintiff No. 1. In addition to adjustment of the amount due and payable by the PCCL to the Plaintiff, certain additional amount was also required to be paid by the plaintiff to the PCCL. The plaintiff No. 1 accepted the offer of the PCCL and accordingly the aforesaid plot of land with construction thereon was agreed to purchase by plaintiff No. 1 from PCCL but out of love and affection for Mst. Sardar Begum, wife of plaintiff No. 1. The plot in question with construction thereon was purchased by the plaintiff No. I in the name of his said wife who expired in the year 1975. The possession of the Bungalow constructed on the aforesaid plot of land was handed over by PCCL to the plaintiff in the year 1958. Thereafter the plaintiff No. I started living in the same along with other plaintiffs, his wife and the defendants No. I to4. Lt is the case of the plaintiff that all the title documents in respect of the said house are in possession of defendant No.1. By efflux of time, the plaintiff No. I arranged marriages of all his daughters and sons arid also carried.
Out additional constructions from-time to time. Till December 1991. The plaintiff No. 1 used to live in the said house along with defendants No. I to 4 but the said defendants refused to maintain the plaintiff No. 1 who by then, on account of old age was leading a retired life, and started creating problems for the plaintiff No. 1 as a result whereof in December. 1991 Plaintiff No. 1 left the said house and started living with plaintiff No. 7. Lt has been averred by the plaintiff in the plaint that the house in question is actually ow ned by and belongs to plaintiff No. 1 who had paid the entire sale consideration to PCC and his wife Mst. Sardar Begum was a benami owner of the same. Ever since December. 1991, the plaintiffs including plaintiff No. 1. Have demanded their share in the house and on failure of Defendants No. I to 4 to do so Legal Notice of Demand dated 28-8-1993 was served on defendant No. 1 to 4 by the advocate of plaintiff No. I. The reply of such legal notice sent by defendant No. 1 to 4 amounts to admission of claim of the plaintiffs, lt has further been stated by the plaintiffs in the plaint that defendants No. I to 3 addressed a letter to the said PCCL and accepted that all the plaintiffs and defendants No. 1 to 4 being the legal heirs of Mst. Sardar Begum and shareholders of bungalow in question. In so far as defendant No. 4 is concerned, by addressing a letter to PCCL independently, the said defendant has also admitted that there are eleven share holders in the said house after the death of Mst. Sardar Begum wife of Plaintiff No.1. The claim on the said house has further been advanced by plaintiffs on the plea that ages of defendants No.1 to 4. In the years 1957-58 were 22 years. 20 years. 17 years and 12 years respectively and as such the said defendants were school going children or helping the plaintiff No. I in his business and as such assertion in respect of the sale price of the said house to the PCCL in untrue. The defendants No. 1 to 4 were served and have filed their written statement wherein it has been inter alia stated:
(a) The suit is barred by limitation:
(b) The purchase and payment of sale consideration of the house in question by the plaintiff No. 1 has been denied in toto by the said defendants.
(c) That the house in question was purchased by defendants No. L2 and 3 out ol their ow n funds in the name of their mother Mst. Sardar Begum out ot love and affection and as such Mst. Sardar Begum was estensible owner bf the house in question and defendants No. 1,2 and 3 are actual owners of the same.
(d) That additions in the house in question have been carried out by defendants No. 1.2 and 3 at their own expense and the taxes in respect of the same have always been paid by them.
(e) After the death of Mst. Sardar Begum, in a family meeting, it was agreed by all the plaintiffs and defendant No. 4 that the house in question was purchased by defendants No. 1. 2 and 3 in the name of their mother Mst. Sardar Begum and as such it was agreed upon by all the legal heirs of Mst. Sardar Begum that defendants No. 1, 2 and 3 are actual owners of the house in question.
On the pleadings of the parties, following issues were famed:- "1. Whether the suit is barred by limitation?
2. Whether the plaintiffs and defendants No. 1 to 4 are successor-in-interest in respect of the suit property after the death of Mst. Sardar Begum and therefore are entitled to their shares in the suit property as per law?
3. Whether the defendants No. 1.2 & 3 are entitled to the exclusive possession and ownership of the suit property in their own right ?
4. Whether the plaintiffs are entitled to claim partition of the bungalow in question?
5. What should the decree be?"
2. The plaintiff examined himself as Ex.1. And defendant No. 1, Defendant No. 4 were examined as Ex.2 and Ex.3. The defendants in support of their case also examined one Muhammad Din and Ahmed Din as Ex.5.
3. I have heard Mr. Khalil-ur-Rehman, learned counsel for the plaintiffs and written notes of arguments have, been Tiled by Mr. S. Ashfaq H. Rizvi, learned counsel for the plaintiffs.
4. My findings on the aforesaid issues are as follows:
5. Before I proceed to discuss the aforesaid issues I deem it proper to mention here that the plaintiffs in this suit have, inter alia, claimed mesne profit in respect of-the suit property from January. 1991 till the execution of the decree Rs. 10.0(30.00 per month. A perusal of the above issues which were framed by consent of the advocates for the parties, reveals that no issue on the point of mesne profit was framed by the Court. On the other hand perusal of the evidence brought on record by the plaintiffs reveal that except a bald statement of plaintiff No. 1 claiming Rs. 10.000.00 per month as mesne profit, no evidence has been brought on record by the plaintiffs to prove their alleged claim of mesne profit. Had there been any evidence on record in respect of mesne profit the Court would not have been powerless to frame such an issue even at the time of arguments.
Since there is no evidence worth its name on record in respect of alleged claim of mesne profit I have refrained myself from framing an issue on this point.
Issue No.1 This issue on the point of limitation was framed on the basis of plea of limitation taken by the defendants Nos. 1 to 4 in their written statement and such the burden to prove that the suit is barred by limitation is on the said defendants. Mr. Khalil-ur-Rehman, leamed counsel for the defendants, did not advance any argument on the point of limitation and as such it appears that the said issue was dropped by the defendants Nos.1 to 4. It may, however, be stated that Article 127 of the Limitation Act, 1908, provides a period of 12 years for a suit by a person excluded from joint family property to enforce a right to share therein and limitation for filing such a suit is to be reckoned from the date when the exclusion become known to th^ plaintiff. In the instant suit, it is the case of the plaintiffs that plaintiff No. 1 who is father of defendants Nos. 1 to 4 left the suit property in December, 1991 and started living with plaintiff No. 7 as defendants Nos. 1 to 4 Have refused to maintain the plaintiff No. 1 by not providing proper food, clothing, medical treatment, etc. To the plaintiff No.1. In my view, the period of limitation for filing this suit would start to run from December, 1991 as this is the date whens exclusion from right to share in the suit property became known to the plaintiffs. Such being the position, the suit is not barred by limitation.
Issue Nos. 2 & 3.
It is an admitted position that the suit property even today stands in the name of Mst. Sardar Begum who was wife of plaintiff No. 1 and mother of other plaintiffs and defendants Nos. 1 to 4.
Contradictory claims have been made by the plaintiffs and defendants Nos. 1 to 4 in respect of actual ownership of the suit property inasmuch ass the case of the plaintiffs is that the suit property was purchased by plaintiff No. 1 in the name of Mst. Sardar Begum out of his own funds on account of love and affection which the plaintiff No. 1 has for his wife. On the other hand, the case of defendants Nos. 1 to 4 is that the suit property was purchased by them out of their own funds in the name of their mother i.e. Sardar Begum due to love and affection and as such the said defendants are the actual owners of the suit property. There is word against word. The plaintiff No. 1 who has examined himself as Ex: 1 has in categorical terms stated in his examination-in- chief by way of affidavit-in-evidence that in the year 1957 he was electrical contractor of defendant No. 5 M/s. Pak Construction Company (Pvt.) Limited, who had constructed the suit property and the same was purchased by him from his own funds in the name of his wife Mst. Sardar Begum because of love and affection that he has for his said wife. It has further been stated by the plaintiff No.1 in his examination-in-chief that as per the record of defendant No. 5 the suit property still stands in the name of late Mst. Sardar Begum and defendants Nos. 1 to 3 addressed letter to defendant No. 5 stating therein that all the plaintiffs and defendant Nos.1 to 4 are shareholders in the suit property after the death of Mst. Sardar Begum. The plaintiff No. 1 was extensively cross-examined by the leamed counsel for the defendants Nos. 1 to 4 but he struck to his guns and the statement of plaintiff No. 1 to the extent of purchase of suit property by him in the name of his wife could not be shaken. In so far as writing of letters by-defendants Nos. 1 to 3 to defendant No. 5 admitting share of the plaintiffs and defendant Nos. 1 to 4 in the suit property is concerned, the plaintiff No. 1 failed to bring anything on record in this respect.
6. On the other hand, the defendants Nos. 1 and 4 who examined themselves as Ex. 2 and 3 respectively have also categorically stated before the Court that the suit property was purchased by defendants Nos. 1 to 3 in the name of their mother out of their own funds and that the said defendants are the actual owners of the suit property. The defendant No.1 has also filed allotment order of the suit property in the name of Mst. Sardar Begum as Ex.2-C, payment receipts as Ex.2-D/1 to 2-D/3 and other documents viz. Tax payment receipt, challan etc. All of which are in the name of Mst. Sardar Begum.
7. As stated above there is word against word in respect of purchase of the suit property in the name of Mst. Sardar Begum; The plaintiff No. 1 claims that suit property was purchased by him out of his own funds in the name of his wife whereas the defendants Nos. 1 to J claimed to have purchased the same out of there own funds in the name of their mother. None of the party made any attempt t examine defendant No. 5 to prove their respective contentions. It is an admitted position that the property in question was purchased as far back as in 1958 and the recorded owner of the same i.e. Mst. Sardar Begum, died in the year 1975. The defendants Nos. 1 to 3 did not take any step for mutation of the suit property in their own name after the death of their mother in case Also. Sardar Begum was the ostensible owner of the same and defendants Nos. Lt to 3 were its actual owners. Another aspect of the matter is that the defendants Nos. 1 to 3 in this suit without filing a counter-claim in respect of their ownership of the suit property cannot be granted any relief. The version of defendants Nos.1 to 3 is not believable inasmuch as defendant No. 4 has himself admitted during the course of his cross-examination that a letter was written by him to defendant No. 5 from whom the house in question was purchased in the name of Mst. Sardar Begum requesting the said defendant not to transfer the suit property in the name of any individual as after the death of Mst. Sardar Begum there are 11 legal heirs of the said deceased/owner. Such being the position, I am of the opinion none of the parties have been able to establish the factum that the suit property was purchased by them from their own funds in the name of Mst. Sardar Begum out of love and affection and as such I have no option but to hold that the plaintiffs and defendants Nos. 1 to 4 are successors-in-interest of Mst. Sardar Begum in respect of suit property and are, therefore, entitled to their respective shares according to Muslim Personal Law. Accordingly, issue No. 2 is answered in affirmative and issue No. 3 is answered in negative.
Issues Nos. 4 and 5 ln view of my above findings, the plaintiffs are entitled to claim partition of the suit property. Since the suit property is not capable of conveniently partitioned, I pass a preliminary decree declaring that the plaintiffs and defendants Nos. 1 to 4 are entitled to their respective shares according to Muslim Personal Law in the same and appoint Nazir of this Court to sell the same and distribute its sale proceeds among the legal heirs of Mst. Sardar Begum according to their respective shares as enshrined in the Muslim Personal Law of the parties. The Nazir of the Court is further directed to ascertain future mesne profits in respect of the suit property from the date of decree till the actual sale of the same. There will, however, be no order as to costs.