P L D 1955 Lahore 31 (PLP)

AKHAQUE HUSAIN, J.‑The suit in which this appeal has been brought relates to a shop which admittedly belonged to one Maula Dad Khan, who, along with his family, resided somewhere in Africa and died, on the 4th of June, 1948. One Rahim ltakhsh had been appointed by Maula Dad to act as his mukhtar-e‑khas. It is admitted that before the partition of the Punjab in 1947 the shop in suit had been let out to a Hindu tenant who before leaving this country in 1947 sold the goods ii, the shop and delivered the possession of the shop itself to a refugee who in his turn made 'over the goods and the show to the defendant Abdul Hafeez. The last‑named applied to the Custodian of the Evacuee Property for allotment of the shop and also the confirmation of the sale of the goods to him ; but, while the latter prayer was granted, the former relief was refused by the Deputy Custodian. The five original plaintiffs to this suit were Maula Dad's widow Mst. Hakam Bibi, Bashir Ahmad and Nazir Ahmad, his sons, and Msts. Fazeelat Begum and Hajra Begum his daughters. Besides these, Maula Dad also left surviving him as his heirs another son named Muhammad Iqbal and two more daughters, namely, Msts. Resham Begum and Sardar Begum. The present suit was filed by Rahim Bakhsh as the mukhtar of the plain tiffs on the allegation that the five defendants, Abdul Hafeez, Hameed, Rasheed, Habeeb and Shaukat are trespassers and a decree for ejectment and Rs. 1,316‑4‑0 as damages and com pensation for the use and occupation of the shop was sought against them. One written statement was filed by the defend ant Abdul Hafeez and another by the remaining four defendants. On the pleas raised by the defendants the following seven issues were framed in the trial Court :‑ (1) Whether the power of attorney in favour of Rahim Bakhsh had not been executed by plaintiffs Nos. 1, 4 and 5 and was not duly registered ? (2) Whether Muhammad Iqbal son, and Fatima and Resham Bibi daughters of Maula Dad are not necessary parties ? (3) Whether Bashir Ahmad\ and Nazir Ahmad, plaintiffs Nos. 2 and 3 are minors and Mst. Hakam Bibi, plaintiff No. 1 was competent to appoint Rahim Bakhsh as their mukhtar acting as their guardian ? (4) Whether the defendant's possession of the shop was not illegal and they were lawful allottees or tenants and had been paying rent ? (5) If issue No. 4 is found in the negative, to what amount the plaintiffs were entitled as compensation for use and occupation and from whom ? (6) Whether defendant No. 1 was not in possession of the shop. If so, since when, and with what effect ? (7) Relief. All the issues, except a part of the third issue, were decided in the plaintiff's favour. Under the third issue it was held that since Bashir Ahmad had attained majority before the institution of the present suit, his mother Mst. Hakam Bibi was not competent to execute on his behalf the mukhtarnama in favour of Rahim Bakhsh. Bashir Ahmad's name was, there fore, ordered to be struck off .from the array of the plaintiffs in the plaint. A decree for possession of the shop was passed against all the defendants, and various amounts by way of compensation for occupation of the shop during different periods were awarded against the defendants. Thus Rs 1 324 were decreed against Abdul Hafeez for the period from the 21st of July 1948 to the 5th January 1951, out of which defendants Nos. 2 and 3 were made jointly liable for Rs. 140 and defendants Nos. 4 and 5 for Rs.

130. Rs. 682 were also decreed against defendants Nos. 2 and 3 for the period between the 6th January 1951 till the date of the decree and Rs. 341 against the defendants Nos. 4 and 5 for the same period. Abdul Hafeez has not appealed and the present appeal was filed by the remaining four defendants. A number of grounds against the trial Court's decree were half‑heartedly raised by the learned counsel for the appellants before us. It was argued that a part of the rent had accrued during the lifetime of Maula Dad and no suit could be filed for its recovery unless the plaintiffs obtain a succession certificate. Maula Dad died on the 4th of June 1948 and rent has been decreed only from the 21st of January 1948. Moreover, the defendants Nos. 2 and 3 have been made liable for rent only from the 15th of August 1950 and the defendants Nos. 4 and 5 from the 15th of April, 1950. Abdul Hafeez alone has been made liable for rent before the 15th of April, 1950, and he has not appealed against the decree against them. Similarly there is no substance in the contention that the present suit is barred by the provisions of O. XXII, r. 9 C. P. C., because the rent for the period for which Maula Dad had brought a suit in his lifetime and which suit abated on account of his death‑has not been decreed in this suit. Nor is there any substance in the contention that a reference should be made to the Custodian as evacuee interests are involved in this suit. An application was made by Hafeez Brothers under section 9 of Act VII of 1948 in respect of this shop and the goods therein to the Deputy Custodian, Lyallpur, and was rejected in so far as it related to the building of the shop, with the remarks : "The building belongs to a Muslim. The petitioner has not settled about tenancy with him". The contention that the plaintiffs should apply under the Rent Restriction Act as the appellants are tenants is equally futile. The learned Civil Judge has found the appellants to be trespassers and nothing was said by their learned counsel to displace that finding. The only point seriously urged in support of this appeal was that since admittedly all the heirs of Maula Dad were not parties to the suit, no decree for the share of the absentee co‑sharers in the shop as well as in the amount of compensa tion can be passed. So far as the question of ejectment of the defendants from the hop is concerned, it is now settled law that one or several co‑owners or tenants‑in‑common can sue to eject a trespasser without impleading all the co‑owners or A tenants‑in‑common as parties to the suit vide Ramzan Ali v. Basharat Ali (105 P R 1901), Budha Singh v. Sant Singh (A I R 1926 Lah. 544), Lachhman Singh v. Mst. Chattar Kaur (A I R 1927 Lah. 663), Ganga' Rain v. Relu (A I R 1933 Lah. 999), Ram Charan v. Bansidhar (A I R 1942 All. 358), Maganlal Dulabhdas v. Bhudar Pur shottam (A I R 1927 Bom. 192), Currimbhoy & Co. v. L. A. Creat (A I R 1930 Cal. 113), Baghuraj Singh v. Bishen Tenary (A I R 1916 Pat. 26), Ramunni Kitav, v. Kunhayan (A I R 1935 Mad. 125), Ambika v. Rameshwar (A I R 1946 Oudh 221) and Pitamberdas v. Bhawanilal (A I R 1932 Sind 220). The reason of the rule is that since trespass is a wrong t6 another's possession, any person who is in possession, actual or constructive, can sue to eject a trespasser and every co‑sharer has interest in, and possession over, every particle of the joint property insomuch so that when the property is in the actual possession of one co‑sharer his possession is deemed to be the possession of the other co‑sharers as well. Since a co‑sharer's interest and possession extends to the entire joint property he is entitled to eject a, trespasser from the whole of it in cases where this rule has been deviated from it was overlooked that in the absence of a partition there is no specific portion of the property which a co‑sharer: can recover as his own and no one can be compelled to co‑share joint property with a stranger or trespasser. The considerations which apply to a suit for ejectment of a trespasser also apply to a suit for damages and com pensation against him. Every co‑sharer, in the absence of a statutory provision or contract to the contrary, is entitled to realise, although not to appropriate, the profits of the joint property. Whenever one co‑sharer is in exclusive possession P of the whole or part of the joint property he is liable to account for it to his co‑sharers to the extent to their shares. Similarly when he realises damages or compensation from a trespasser he is deemed to have done so on his own behalf as well as on behalf of his co‑sharers who are entitled to receive from him their shares in the amount so realised. There is thus no principle to debar one or more co‑sharers from suing a trespasser for damages or compensation for use and occupa tion. This was so ruled in Ram Charan v. Bansidhar (A I R 1942 All. 358.) with which I respectfully agree. For the above reasons I would dismiss this appeal with costs. B. Z. KAIKAUS, J.‑I agree. A. H. Appeal dismissed.