MEHMOOD IDREES vs KHALID HUSSAIN Ss — 2023 YLR 1362 LAHORE-HIGH-COURT-LAHORE

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MEHMOOD IDREES VS KHALID HUSSAIN Ss. 7 & 8---Mesne profits---Question of title---Respondent/plaintiff filed suit for partition of suit property as co-sharer of joint property in possession of petitioner / defendant--- Courts below directed petitioner/defendant to deposit interim mesne profit---Plea raised by petitioner/defendant was that respondent/ plaintiff did not have title in suit property---Validity---Discretion under S. 7 of Punjab Partition of Immovable Property Act, 2012, was vested in Trial Court to determine mesne profits at the first date of hearing pending adjudication of the suit whereas S. 8 of Punjab Partition of Immovable Property Act, 2012, had made it imperative upon Court to decide the issue to title or dispute before proceeding further in the suit---Such would be against the intention of the Legislature and object of Punjab Partition of Immovable Property Act, 2012 to circumscribe or put a lid of S. 8 of Punjab Partition of Immovable Property Act, 2012, on the discretion vested in Trial Court under S. 7 of Punjab Partition of Immovable Property Act, 2012, by the Legislature---Purpose was that the Court considering facts of each case could direct deposit of interim mesne profits or deny the same pending adjudication of suit to safeguard a party not in possession---Such discretion was to be exercised in a judicial manner by Trial Court in each case depending upon prima facie positions of parties with respect to co-ownership---Respondent/ plaintiff was co-owner with equal share as per Jamabandi for the year 2001-2002, which had made it a prima facie case in favour of respondent/plaintiff---Lower Appellate Court in exercise of revisional jurisdiction had rightly held that Trial Court failed in exercising its discretion in a judicial manner---If upon final adjudication of the matter, petitioner/defendant would succeed to establish his case regarding his real and sole ownership, amount so deposited as mesne profits could always be decreed in his favour---If petitioner/defendant would fail and order under S. 7 of Punjab Partition of Immovable Property Act, 2012, was not in field, respondent/ plaintiff would be deprived of his due share thus constraining him to initiate further proceedings for execution/ recovery of the same---Equity also leaned in favour of respondent/plaintiff and Lower Appellate Court in exercise of revisional court rightly exercised the discretion, which required determination of interim mesne profits under S. 7 of Punjab Partition of Immovable Property Act, 2012, before proceedings further in the matter---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

MEHMOOD IDREES vs KHALID HUSSAIN Ss — 2023 YLR 1362 LAHORE-HIGH-COURT-LAHORE

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