P L D 1988 Peshawar 125 (PLP)

Q. Ghulam Rauf for Petitioners. Q. Abdur Rashid for Respondents. Date of hearing: 5thJune, 1988. The suit house was formerly evacuee property. It was permanently transferred in favour of the parties to this revision petition in equal share. The parties are real brothers inter se. After the permanent transfer the suit house was in possession of the parties to the extent of 1/4th share by the 3 petitioners herein and 3/4th share by the respondent Mushtaq Ahmad. The three petitioners herein claiming that actually they were entitled to be in possession of 3/4th share of the suit house claimed compensation for user amounting to Rs.6,000 from January 1972 till the decision of the suit filed in the Court of Senior Civil Judge, Abbottabad against their 4th brother Mushtaq Ahmed respondent. This suit was contested by the said respondent and the learned trial Judge after framing issues from the pleadings of the parties and recording evidence as produced by‑them, decreed the suit of the petitioners for recovery of the amount of compensation for use and occupation of the suit property at the rate of Rs.400 per month from January 1972 till the delivery of possession by judgment dated 14‑1‑1980. Respondent Mushtaq Ahmed feeling aggrieved filed an appeal in the Court of District Judge, Abbottabad which was accepted on 12‑11‑1981 and the judgment and decree granted by the trial Judge was set aside and the suit of the petitioners herein was dismissed. Hence the present revision petition by Fazal Karim and others plaintiffs of the suit.

2. I have heard learned counsel for the parties who have also led me through the record of the case.

3. The admitted facts of the case are that the suit house is jointly owned by the parties who are real brothers inter se; that no partition has yet taken place; that the petitioner, Fazal Azim and respondent Mushtaq Ahmed were in possession of the suit house. It could not, therefore, be stated that as how much share of the suit house was in possession of each of the aforesaid two co‑sharers. Even otherwise there is no evidence on the record to show that any of the co‑sharers had been dispossessed of his share by the two co‑sharers who were in actual occupation of the suit house. It is well‑settled that in case of co‑sharers if a decree for mesne profits or for compensation is to be passed, it must first be found that there was dispossession. In order to award mesne profits as against a co‑sharer, there must be a finding of actual ouster, and that mere excess of enjoyment does not in itself amount to an ouster. In the case in hand not an iota of evidence has been produced to show that the co‑owners who had filed the suit, were dispossessed or ousted from possession of the suit house in any way by respondent Mushtaq Ahmed. There is also no finding of ouster in the absence of which the decree could not be passed. I will, therefore, hold that the suit of the petitioners for compensation for use of the suit house was incompetent and misconstrued. In arriving at this conclusion I will draw support from the case of Majid Mia v. Munshi Mia AIR 1926 Calcutta

860. Consequently I will uphold the impugned judgment of the learned District Judge and will dismiss this revision petition with no order as to costs. A.A./632/P Revision dismissed.