despite a dispute over property ownership, the petitioner must deposit interim rental profits in court. This ensures that the co-owner not in possession receives their fair share of the profits while the ownership dispute is resolved.

Stereo. H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Writ Petition No.9926/2021

Mehmood Idrees Versus Khalid Hussain etc.

J U D G M E N T

Date of Hearing:

20.10.2021

Petitioner by:

Mr. Tariq Zulfiqar Ahmed, Advocate.

Respondent No.1 by:

Mr. Tariq Muhammad Iqbal Chaudhry, Advocate.

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.

Brief facts of the case are that respondent No.1 instituted a suit

for partition and mesne profits under Sections 4 & 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 Khewat 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.

Writ Petition No.9926/2021

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”).

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.

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.

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.

Arguments heard. Record perused.

Writ Petition No.9926/2021

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:

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?

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 CPC”).

In Lucky Kochuvareed v. P Mariappa Gounder and other (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 CPC, 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 mesne 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

Writ Petition No.9926/2021

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 sub-section (1) of Section 6

is to be visited with penal consequences of sub-section (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 coowner not in possession of the property. For the ease 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 coowner, 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 coowner 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

Writ Petition No.9926/2021

(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

Writ Petition No.9926/2021

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 CPC 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 CPC 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

Writ Petition No.9926/2021

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 CPC 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

Writ Petition No.9926/2021

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.

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. Sub-Section (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 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

Writ Petition No.9926/2021

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.

(ANWAAR HUSSAIN)

Judge

Approved for reporting

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