1994 PLP 482 (CLC)

Muhammad Ashraf Hijazi Respondent. Date of hearing: 27th October, 1992., This civil revision has arisen out of a suit brought by the petitioner, Muhammad Amin, for specific performance of an agreement to sell certain immovable property. The agreement was entered into by two persons, namely, Muhammad Ishaq and Riaz Ahmad. The petitioner filed a suit for specific performance of the said agreement which was decreed by a Civil Judge of Lahore. Judgment and decree passed by him were challenged before the District Judge, Lahore, who accepted the appeal, set aside the judgment and decree passed by the learned Civil Judge and remanded the suit to him for fresh decision. Earlier, the petitioner had taken possession of the disputed property in execution of the decree passed by the learned trial Court. After the remand of the suit by the learned District Judge as aforesaid, the respondents who are legal representatives of the said Muhammad Ishaq and Riaz Ahmad made an application for restoration of possession of the disputed property contending that the decree where under the possession was delivered to the petitioner had been set aside. Their application was accepted by the learned Civil Judge. His order in this behalf was challenged by the petitioner by means of an appeal which was decided by the learned District Judge. The learned District Judge took notice of the statement made by Muhammad Ishaq. As already stated, he was one of the persons who had allegedly agreed to sell the disputed property. He had admitted that agreement had been entered into, as alleged by the petitioner. It was held by the learned‑ District Judge that in view of his confession Muhammad Ishaq was not entitled to get possession of his share in the property in question who according to him had 15/48th share therein. The learned District Judge, therefore, modified the order of the learned Civil Judge and allowed the application of the respondents to the extent of the rest of the property, namely 33/48th share therein. Feeling aggrieved by the order of the learned District Judge the petitioner has come up in revision to this Court.

3. Learned counsel for the parties have different versions to present. According to the petitioner the disputed property consisted of a piece of land bearing some servant quarters which were demolished by him and a double storey building was constructed thereon by him. Plea raised by learned counsel for the respondents is that the petitioner had simply made first floor on the said quarters but did not raise the whole building afresh. It is not disputed that Muhammad Ishaq was not entitled to get his share in the disputed property in view of the aforementioned statement made by him.

4. Now both sides want to get possession of the property in question. The petitioner offers to pay mesne profits to the respondent to the extent of 33/48th share in the property. This offer is also being made by the respondents other than legal representatives of Muhammad Ishaq. It is not disputed that presently possession of the property in dispute is with the petitioner. Learned counsel for the petitioner submits that 33/48th share of the respondents, other than those of Muhammad Ishaq, hereinafter referred to as the contesting respondents cannot be separated. Learned counsel for the contesting respondents, however, submits otherwise. In this connection he relies on the report of a Local Commissioner who was appointed by the learned trial Court. Learned counsel for the petitioner does not accept the report of the Local Commissioner saying that the petitioner was never afforded an opportunity to raise objections against the said report which, according to him, is incorrect. It is not denied by learned counsel for the respondents that the objections of the parties were not invited in respect of the report of the Local Commissioner. I am, therefore, not inclined to rely on it.

5. When I asked the learned counsel for the respondents as to what is the rental value of the disputed property, he submitted that it was about Rs3,500 per mensem. According to learned counsel for the petitioner it was about Rs.3,000 per mensem. Taking the rent as Rs.3,000 per mensem, the share of the contesting respondents comes to Rs.2,063 per mensem.

6. In the circumstances spelt out above, I feel that, for the present, the petitioner should remain in possession of the disputed property provided he deposits Rs.2,063 per mensem with the learned trial Court and the sum so deposited is paid to the respondents in case of the ultimate failure of the petitioner. This deposit shall be made by the petitioner right from the date on which he got possession of the disputed property under the decree which was set aside by the learned District Judge. The arrears including those for the current month, shall be deposited by the petitioner within two months. As for the future, the said sum, including the amount for the month of November, 1992, shall be deposited by the petitioner with the learned trial Court before the 15th day of the month following the one for which it would `all due. In case of any default, the petitioner shall be liable to surrender possession of the whole building to the respondents. This civil revision is disposed of accordingly, with no order as to costs. H.B.T./M‑682/L. Order accordingly.