P L D 1999 Lahore 200 (PLP)

NAJAM‑UL‑HASSAN KAZMI, J.‑‑‑This is first appeal, which arises from preliminary judgment passed by the learned Civil Judge, Faisalabad on 18‑12‑1997, in a suit for partition.

2. Respondent (Waris Ali) filed a suit seeking partition of land measuring two Kanals, two Marlas one Sarsahi, at Chak No.223/R.B., Fasil Street, Samundari Road, Faisalabad and for separate possession of his share of land measuring one Kanal, one Marla, 1/2 Sarsahi. It was maintained that land measuring two Kanals, 2 Marlas, one Sarshai bearing Khasra No.l5/3/1 was jointly owned by Lai Hussain alias Fazal Hussain and Ghulam Hussain son of Ghulam Rasul. Lai Hussain sold his share of one Kanal, one Marla, 1/2 Sarshai in favour of respondent (Waris Ali) vide sale‑deed, dated 21‑9‑1987 while Ghulam Hussain sold his share to Abdul Hafeez who in turn sold it to appellants (Muhammad Latif and 3 others). Claiming the property to be joint and appellants to be in possession in excess of their share, respondent applied for separate possession through partition.

3. The suit was resisted on the ground that the parties were not co‑sharers, land was not joint, the Court had no jurisdiction and that the respondent had no cause of action to maintain the suit.

4. Picking up the points where the parties were at variance, the learned Civil Judge, on 10‑7‑1975, framed the following issues:‑‑ (1) Whether the parties are not co‑sharers, if so, its effect? (2) Whether the statutory tenancy has been created between the parties, if so, its effect? (3) Whether this Court has got no jurisdiction to try this suit? (4) Whether the suit has not been properly valued for the purposes of court?-fee and jurisdiction? (5) Whether the suit is time‑barred? (6) Whether the suit is hit by principle of res judicata? (7) Whether the plaint is liable to be rejection under Order 7, Rule C.P.C.? (8) Whether the plaintiff is owner of property of Khasra No.15/3/1 and is entitled for its separate possession through partition?? " (9) Whether the plaintiff is entitled to recover Rs.12,000 per month as use and occupation of the disputed property from the defendants since July, . 1990? (10) Relief.

5. Respondent selected Ghulam Rasul Patwari, Dr. Muhammad Ilyas and Muhammad Ashraf who appeared as P.W.1 to P.W.3. Documents Exh.P‑1 to Exh.P‑14 were tendered in evidence. Appellants produced Aziz‑ur‑Rehman and Abdul Rehman as D.W.1 and D.W.2 and tendered in evidence documents Exh.D‑1 to Exh.D‑9.

6. The objections raised by the appellants in defence, did not find favour with the learned trial Court which after considering the evidence proceeded to pass a preliminary decree.

7. Learned counsel for the appellants argued that specific plots were purchased by the appellants and respondent and in result the property could not be treated to be joint nor the relationship of co‑sharers could be claimed. In the alternative, it was contended that if the property would be treated to be joint, then all the co‑sharers in the Khata will have to be impleaded as party and in their absence no fruitful results could be achieved nor the proceedings in isolation for the division of a portion of the Ihata could `continue. It was added that findings on Issue No.9, whereby exorbitant compensation was granted were based on no evidence as the learned trial Court had not based its decision on any evidence available on record.

8. In reply, learned counsel for the respondent argued that the property was joint, appellants were in possession of the land in excess of their share, no partition had ever taken place and consequently the suit being competent was rightly decreed. It was added that the appellants themselves challenged the sale‑deed of the respondent in a civil suit which was dismissed and the respondent was declared to be a bona fide purchaser of 1/2 share of the land. Regarding mesne profit/compensation for use and occupation. It was submitted that the amount awarded was reasonable, fair and equitable and in any case, the respondent would not object if this Court fixes any amount as reasonable mesne profit/compensation as admittedly the appellants are using the land following to the share of the respondent.

9. In the course of hearing of this appeal, we had the opportunity of going through the entire evidence with the assistance of learned counsel for the parties. We have also concentrated to the submissions made by learned counsel for the two sides.

10. Admittedly Lai Hussain alias Fazal Hussain and Ghulam Hussain son of Ghualm Rasul were owners of two Kanals, two Marlas and one Sarsahi bearing Khasra Nd.15/3/1, Lal Hussain alienated his share of one Kanal, one Maria and 1/2 Sarsahi in favour of Waris?Ali respondent, vide sale‑deed, dated 21‑9‑1987, Exh.P.8, while Ghulam Hussain sold his share to Abdul Hafeez who later alienated the same in favour of appellants (Muhamamd Latif and 3 others). We asked the learned counsel for the appellants to produce copy of the sale‑deed in favour of the appellants, which he did and it was observed from the document that the appellants had riot purchased any specific portion of the property, rather the sale in their favour was for a share in the joint property. It could not be proved that Lal Hussain and Ghulam Hussain had mutually separated their share, either through some settlement or through a decree of the Court. P. W.1, Ghulam Rasul Patwari deposed that Lal Hussain alienated the portion of land in favour of Waris Ali and that according to the Jamabandi, Latif etc. (appellants) and Waris Ali (respondent) were shown to be owner of 1/2 share respectively. the Revenue Record as well as the document of title, read with the other oral evidence on record, does not give the impression if the property was ever partitioned, either between Lal Hussain and Ghulam Hussain or between the appellants and respondent. On the contrary, the appellants themselves filed a suit to challenge the sale‑deed in favour of respondent. The suit was dismissed and in the judgment of the Civil Court dated 16‑2‑1993, it was held that respondent Waris Ali was bona fide purchaser to the extent of 1/2 of Killa No.15/3/1. This judgment was challenged in the High Court where too the appellants remained unsuccessful. Apart from this evidence, the appellants in their own evidence admitted that they were in possession of land in excess of land measuring one Kanal, one Maria, 1/2 Sarsahi, For this purpose', one can refer the statement of D. W.1 and D. W.2. Not only this, the case pleaded was that the appellants acquired the entire land from the previous owners, on lease basis and thereafter, purchased a part thereof. The evidence thus made it manifestly clear, that the land was joint, it was never partitioned, the appellants were possessing the A portion in excess of their share and the respondent was entitled to have the possession of the land to the extent of his share by the division of the property.

11. As regards the submission of learned counsel for the appellants that the other co‑sharers of the Khata should be impleaded as party in the suit; the same is not well‑founded. Reason being, that the dispute is pertaining to land measuring two Kanals, two Marlas, one Sarsahi which initially belonged to two persons, namely, Lal Hussain and Ghulam Hussain from them the title transferred to respondent and Abdul Hafiz and from Abdul Hafeez to appellants. Partition is being claimed of the property which initially belonged to the abovenamed two persons and presently held by the appellants and respondent in equal shares and, therefore, in the course of division of this property, the presence of other co‑owners in the Khata would neither be necessary nor 8 relevant. It is not the case that the two parties have purchased share in the Khata but the case is that the two sets of parties purchased share in the portion of land jointly held by Ghulam Hussain and Lal Hussain. In this view of the matter, the only necessary party to the suit were the appellants and respondent and none else.

12. The learned Civil Judge also took note of the circumstances referred to above and concluded that the property was still joint and that it required partition of the shares respectively held by appellants and respondent. There was no dispute as to the share, owned by the two parties in the joint property. Findings on issues Nos. l and 8 were, therefore, correctly recorded which, for the reasons above, we hereby confirmed.

13. In the course of hearing, another argument was raised by learned counsel for the appellants, to the effect that if the property is found to be joint and partition is approved the possession of the appellants should not be disturbed as he was initially lessee. This plea shall not be available to the appellants for the reasons the appellants denied the title of respondent, firstly through a suit for declaration to challenge the sale‑deed and thereafter, in the present case. If the lessee denies the title of landlord, it is the option of the landlord to either insist for the eviction through the normal course or to ask for possession through the Civil Court. It is. a settled principle that no one can approbate and reprobate C simultaneously nor a party can be allowed to blow hot and cold at the same time The appellants cannot be permitted to take contradictory positions. Having once denied the relationship of landlord and tenant the appellants cannot be permitted to now plead that their possession as tenant shall be protected. Evidence indicates that the respondent filed ejectment petition against the appellants which was resisted by denying tenancy. The ejectment petition was dismissed as point of jurisdiction was raised. The appeal filed by the respondent was withdrawn and thereafter the present suit was filed. Once the appellants had denied the tenancy, the respondent had the option to accept this position and file a suit for the recovery of possession, where the appellants cannot be permitted to take a contra stand by alleging that he was a tenant. Reference can be made to Mst. Zainab and others v. Fazal Dad and others PLD 1966 Lah. 1050, wherein it was observed that a tenant cannot deny title of his landlord but this provision is only for the benefit of the landlord and does not apply to a case where the landlord himself accepts the repudiation of the tenancy and treats him as trespasser. It was observed, that if the tenant denies the tenancy and the landlord files a suit in the Civil Court, the tenant cannot be allowed to raise the plea that he was a tenant. The relationship of landlord and tenant being based on contract, once the p contract is repudiated and the other party accepts it, the contract comes to an end and the relationship.of landlord and tenant based on contract ceases to exist while the owner can proceed against the tenant to recover possession on the basis of his title.

14. In the present case, the respondent proved beyond doubt that they were co‑sharer in the property, the property was joint and that it required partition. After the title stood established, the appellants cannot turn around and raise the plea of tenancy. The respondent will be legally entitled to get his share separated E and also the possession thereof through the decree of the Civil Court. The objection raised, to the jurisdiction of the Civil Court, being without .substance is, therefore,, repelled.

15. There is, however, some substance in the submission of learned counsel for the appellants that the compensation for use and occupation, awarded by the learned trial Court was not reasonable and that the evidence was not considered. We have ourselves considered the evidence. The plea of the appellants is that the lease amount was Rs.3,518 per annum, for two Kanals, two Marlas, one Sarsahi and in this way, 1/2 share of the lease money would be Rs.1,

759. Another plea was that the learned Civil Judge awarded compensation from July, 1990 i.e. beyond three years prior to the institution of the suit. The suit was instituted on 25‑5‑1995 and it was, therefore, claimed that the compensation beyond 25‑3‑1992 could not have been awarded.

16. It is true that the respondent could claim compensation for use and occupation, uptil three years before the institution of the suit and also from the date of institution of the suit till realization of possession. The grant of compensation beyond three years prior to the institution of the suit was not permissible. As regard the amount of compensation, we asked learned counsel for the appellants as what would be the reasonable amount of compensation which can be awarded. It was submitted that Rs.7,000 per annum would be reasonable and fair. We have found from the evidence, that the land in the vicinity, was leased out at annual rental of Rs.10,000 which appears to be reasonable. D.W.1 in his statement deposed that he was paying Rs.20,000 as rent for 2‑1/2 Kanals. the learned Civil Judge awarded compensation at the rate of Rs.7,000 per month which we do not approve. We are, however, of the view that the amount of Rs.10,000 per annum, shall be reasonable, fair and equitable, keeping in view the evidence on record and also the circumstances noted above. We, therefore, modified the findings on Issue No.9 and direct, that the respondent shall be entitled to recover compensation for use and occupation, of his share, at the rate of Rs.10,000 per annum from 25‑5‑1992 till realization of possession.

17. For the reasons above, this appeal is partly allowed to the extent of modification of compensation for the use and occupation. The preliminary decree to the extent of determining the shares of the patties, directing partition of the joint property and for separation of share is maintained and affirmed. The decree for payment of compensation is modified to the extent that the appellants shall be liable to pay compensation for use and occupation at the rate of Rs.10,000 per annum from 25‑5‑1992 till realization of possession.

18. Disposed of accordingly M.B.A./M‑930/L? ?????????????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.