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Civil Suits Nos. 144 of 1966 and 109 of 1967, decided on 7th December 1967.

Surrender of Tenancy‑Relinquish ment of tenancy without surrender of possession‑Does rot operate as surrender of tenancy.

Noor Bhai Jaffari & Sons v. Syed Riazuddin Ahmad P L D 1959 Kar. 616 eel.

, S. 2 (10)‑‑Mesne profits for wrongful possession‑Such mesne profits should be awarded on basis of actual profits received by wrong‑doer or which he might have received with ordinary diligence‑No material being available to ascertain such profits‑Basis for such assessment‑‑Rent according to prevailing rates for like lands or which it actually fetched.

The correct rule is that mesne profits should be awarded on the basis of actual profits which the wrong‑doer received or which he might have received with ordinary diligence. Where, however, there is no material available to ascertain the profits actually received by the wrong‑doer, or which he might with diligence have received, the rent according to the prevailing rates for like lands or the rent which the land in dispute actually fetched, is treated as safe basis for assessment of the mesne profits.

Grudas Kundu Choudhury and others v. Kumar Hamendra Kumar Roy A I R 1929 P C 360; Harry Kefipson Gray and another v. Bhagu Mian and others ( I 929‑30) 57 I A 105 and Secretary of State for India in Council v. Saroj Kumar Acharlya Choudbry and others (1934) 62 I A 53 rel.

Pirbhu Dial v. Ram Chand and others (1904) 39 P R 27; Rue Khan v. Ghulam Muhammad A I R 1924 Lab. 643; Mul Raj v. Inder Singh and others A I R 1928 Lah. 554 and Kirpa Ram Brij Lal v. Municipal Committee, Amritsar and others A I R 1929 Lab. 547 distinguished.

Grish Chander Lahiri v. Shashi Shikhareswar Roy I L R 27 Cal. 951 (P C); Province of Bengal v. Heirs of Sachindra Kumar Roy A I R 1943 Cal. 125 and Boman Abadan Irani v. Jehangir J. Mobed P L D 1967 Kar. 449 ref.

O. XX, r. 12 (e)‑Mesne profits‑ Inquiry‑Provisions of O. XX, r. 12 (c) relate only to pro cedure and not to suggestion of Court‑Parties filing consent statement for appointment of Commissioner to demarcate and fix boundaries of disputed plot, and defendant agreeing to deliver possession after such demarcation‑Inquiry as to mesne profit subsequent to date of institution of suit, held, may with convenience, in circum stances, be dispensed with.

Ordinarily, the Court should direct an enquiry as to mesne profits from the date of the institution of the suit. But it is com. Patent to the Court to dispense with this enquiry, and to pass a decree finally determining the amount of means profits payable subsequent to the institution of the suit, if it is not necessary to make such an enquiry. The Provisions of Order XX, rule 12, C. P. C. directing an enquiry as to mesne profits, relate only to procedure and not to the suggestion of the Court.

Vella Veeran Chetti v. V. Veeran Chetti and another A I R 1938 Mad. 727 and Geneshi Lal Sharma v. Sm. Snehalata Dassi .1 T R 1947 Cal. 68 ref.

Fakhruddin for Plaintiff (in Suit No. 144/1966).

Naimuddin and S. A. Nusrat for Defendant No. 1 (in Suit No. 144/ 1966).

Nahnuddin for Defendant No.1 (in 8'uit No. 144/1966).

S. A. Nusrut for Defendant No. 2 (in Suit No. 14‑(/1966).

S. A. Nusrat for Plaintiff (in Suit No. 109/1967).

Fakhruddin for Defendant No. 1 (in Suit No. 109/1967).

Naimuddin for Defendant No. 2 (in Suit No. 109,'1967),

Dates of hearing: 29th, 30th and 31st August, 1st, 7th, 228th and 29th September and 3rd October 1967.

This judgment will decide Suits Nos. 144 of 1965 anti 109 of 1967, both of which raise common questions between the same parties with regard to the possession of Plot No. ;4, S. R. 13, McLeod Road, Karachi and as the parties agreed that evidence in Suit 144 of 1966 be treated as evidence in Suit No. 109 of 1967 also. In Suit No. 144 of 1966, the plaintiff is Kist. Noor Sultan, the owner of the plot, and the defendants are Burmah Shell Oil Storage and Distributing Co. of Pakistan Ltd. and their Licensees, A. C. E. Filling Station. Suit No. 109 of 1967 has been brought by, A. C. E. Filling Station against Mst. Nook Sultan and Burmah Shell Oil Storage sad Distributing Co. of Pakistan Ltd. In this judgment, Mst: Nook Sultan will be referred to as plaintiff, and Burmah Shell as defendant No. 1 and A. C. E. Filling Station as defendant No. 2.

2. The circumstances under which the two suits have been brought are these. The plaintiff let out the said plot under an oral agreement on 21‑12‑1954 to the defendant No. 1, for use in connection with their petroleum filling station located on the adjoining Plot No. :'/2. On 11‑12‑57, the lease eras reduced to writing, which is Exh. 10/3, under which the said plot was demised in favour of defendant No.1 for a term of ten years commencing from 21‑12‑1954, at the monthly rent of Rs. 800.00, with the stipulation that the defendant No. 1 will bear and pay municipal and other taxes leviable on the said plot for the period from 1955‑56 up to the expiry of the term of the lease. The defendant No. 1 put the defendant No. 2 in possession, as their licensees and dealers, of this plot as well as Plot No. 3/2. On the plot in dispute, an air‑tower and wooden cabin were constructed and underground pipes were laid.

3. The least of the disputed plot expired on 20th December 1965. It appears that the plaintiff did not agree to the renewal of the lease. But instead of taking legal action for eviction of the defendants from the disputed plot, she brought to‑bear on the defendant No. 1 the pressure of the City Deputy Collector of Karachi to vacate her plot. It was stated at the Bar and in the evidence that the defendant No. 1 agreed to vacate the disputed plot because, having dealings every day with the office of the City Deputy Collector, they were not 'in a position to displease this officer. Be that as it may, the possession of the disputed plot purports to have been given to the plaintiff on 29‑4‑1966. In this connection, the plaintiff executed and delivered to the defendant No. 1 writing Exh. The defendant No. 1 has handed over 10/ l0, under the signature of her representatives P.W. Mansoor Ali and Hibib Ibrahim in which she acknowledged that possession of the disputed plot to her. The receipt of possession was further acknowledged by an endorsement, under the signature of the said Mansoor Ali, as also of the City Deputy Collector, on the site plan, Exh. 10/11. But the plaintiff contends that actually possession was not delivered to her, and hence she has brought Suit No. 144 of 1966 for possession and mesne profits and for recovery of taxes which she alleges, were payable by the defendant No. I but have not been paid. She has calculated mesne profits at the rate of Rs. 500.00 per day on the basis of daily rent which she expected from the proposed multi‑storeyed building on the said plot, the construction of which is alleged to have stopped due to the obstructions created by the defendants.

4. The defence of the defendant No. 1 is that possession of the said plot was duly delivered to the plaintiff on 29‑4‑1966, as evidenced by the acknowledgements of her representatives Mansoor Ali and Habib Ibrahim in Exhs. 10/10 and 10/11, but that if it was held that possession of the plot had not been delivered to the plaintiff, then the defendant No. 1 should be deemed to have continued as tenant, as there can be no surrender of tenancy without delivery of possession, and in that case the plaintiff's suit was not competent by reason of the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. With regard to the claim for mesne profits, this defendant denied that any damage was suffered by the plaintiff and further contended that mesne profits could be given only for such benefits which the defendant No. 1 actually received or might with ordinary diligence have received from the said plot, and not on the basis of damage alleged to have been sustained by the plaintiff: On the question of payment of taxes, the defendant No. l pleaded that taxes to the Karachi Municipal Corporation had been paid up to 1961‑62, and to the Excise and Taxation Department, Government of West Pakistan up to 1966, and that assessment of Municipal taxes subsequent to 1961‑62 was under appeal on the ground that this assessment had been increased without any justification.

5. The defendant No. 2, in their plaint in Suit No. 109 of 1967, contended that delivery of possession of the said plot by the defendant No. 1 to the plaintiff was merely a paper transaction, and even if actual, such delivery is not binding on them, as they were neither party to, nor had any knowledge or information of, the delivery of possession, and consequently sought to restrain the plaintiff from taking possession of this plot. This defence was reiterated in the written statement of defendant No. 2 in Suit No. 144 of 1966, in which they also denied teat they caused any obstruction to the plaintiff in her construction on the disputed plot, and for this purpose placed reliance on the order of the VI1 Civil Judge, First Class, Karachi, in Suit No. 109 of 1967, which was made with the consent of the parties, and which permitted the defendant No. 2 to retain possession of only a 3 feet wide portion adjacent to P16t No. 3/2, and. left the plaintiff at liberty to proceed with the construction of her building on the remaining plot.

6. On these pleadings, the following issues were settled with the consent of the parties on 21‑11‑1966, in Suit No. 144 of 1966:‑---

"(1) Whether defendant No. 1 promised to the plaintiff at the time of handing over possession of the plot that they would remove the material I.e. air pump, kutcha wooden cabin and certain pipelines running underground within few days, if so, what is the effect

(2) Whether the defendant No. 2 continues to remain in possession of a portion of plaintiff's plot of land

(3) Whether defendants or either of them are in wrongful possession of any portion of the plaintiff's plot of land

(4) Whether any of the defendants has obstructed the plaintiff from carrying out construction on her plot of land according to the approved plan if any, or has trespassed upon the plot of land of the plaintiff

(5) Whether the defendants or either of them are operating the petrol pump by use of any portion of the plaintiff's plot of land .

(6) Whether plaintiff has suffered any damage on account of wrongful possession of a portion of plaintiff's plot of land by the defendants or either of them. If so, in what sum

(7) Whether defendant No. 1, I has failed to pay taxes amounting to a total sum of its. 22,009‑09 .

(8) Whether the plaintiff has suffered any damages on account of non‑payment of any taxes by defendant No. 1

(9) Whether the suit is bad for misjoinder of causes of action and/or the parties

(10) Whether the suit is bad for non joindor of necessary parties

(11) Whether the suit is properly framed, valued‑ and is maintainable

(12) Whether the plaintiff has any cause of action against any of they defendants

(13) Whether the plaintiff is entitled to any relief " '

7. In Suit No. 109 of 1967, the following issues were framed by the VII Civil Judge first Class, Karachi, before the transfer of this suit to this Court:‑ .---

"(1) Whether the plaintiff has any locus standi to question the surrender of Plot No. 3/4 by the defendant No: 2 to defendant No.1

(2) Whether the defendant No. 2 handed over the possession of the said Plot No. 3/4, S. R. 13, under coercion by the Deputy Collector, Karachi.

(3) Whether the plaintiff is in possession of any portion of Plot No. 3/4, If so, whether the plaintiff is a trespasser in respect of the same

(4) Whether the defendant No. 1 attempted to encroach upon' any portion of the said Plot No. 312

(5) Whether the plaintiff is, entitled to declaration and/or injunction

(6) What should the decree be "

At the hearing of the two suits before me, it was agreed by the parties that Issues Nos. 1 to 5 in Suit No. 144 of 1966 and Issues Nos. 2, 3 and 4 in Suit No. 109 of 1967, should to determined together as these issues raise the following questions:‑

(i) Whether the possession of the said plot was delivered by the defendant No.1 to the plaintiff, and if so; with what effect

(ii) Whether the defendants, or either of them, are in possession of the said plot or any portion thereof, and if so, with what effect

8. The first question for determination, therefore, is whether the plaintiff received delivery of possession of the said plot from defendant No. 1 on 29‑4‑1966: The main witness of the plaintiff on this question is P. W. Mansoor Ali, who stated in his deposition that possession of the plot was Actually not delivered at the site, and that it was in the office of the City Deputy Collector that he signed Exhs. 10/10 and 10/11, acknowledging the delivery of possession, which delivery however, remained only a paper transaction. According to him, the; endorsement as to delivery of possession on site plan Exh. 10/11 was attested by the Deputy Collector in his office and not at the plot. But: this evidence is against the plaintiff's own admission in paragraph 6 of the plaint, wherein it is stated that "the defendant No. 1 after considerable correspondence and protracted delay, on 29‑4‑1966, handed over the possession of the said plot to the plaintiff". The only grievance which the plaintiff made in her plaint was that the defendant No. 1 failed to remove from the said plot the air tower, the wooden cabin and the underground pipe lines, as they had promised to do when they delivered possession on 29‑4‑1966. Even the plaintiffs attorney, Muhammad Ali, in his affidavit filed on 27‑5‑1966 in Suit No. 109 of 1967, which is Exh. 20, admitted that the plaintiff did receive possession of the said plot from defendant No. 1. Muhammad Ali only complained that a small portion of the plot, of about 10 feet width, was in the possession of defendant No. 2. The delivery of possession is further admitted by the plaintiff in her letter Exh. 10/12, which she wrote to the defendant No. 1 on 19‑5‑1966 in connection with the payment of taxes to the Karachi Municipal Corporation and the Excise and Taxation Department. In view of these admissions of the plaintiff, P. W. Mansoor Ali's version that delivery of possession eras effected only on paper in the office of the City Deputy Collector, cannot be accepted. This version of Mansoor Ali is also controverted by the defendant No. 1's witnesses, Iqbal Ali Khan and Muhammad Muzamil Ghori, the former being a civil engineer in the employment of defendant No. 1, and the latter their sales representative. Both of them stated that they personally delivered at the site possession of the plot in question to Mansoor Ali and Habib Ibrahim, the representatives of the plaintiff, after carrying out the measurements of the plot. The witnesses further stated that the acknowledgement Exh.10/10, and the endorsement of delivery of possession on the site plan, Exh. 10/11, were written at the site, in the presence of the City Deputy Collector, who, as witness to delivery of possession, attested the endorsement on the site plan. Thus, there is sufficient documentary evidence on record, supported by the plaintiff's own admissions contained in pleadings, and in the correspondence between her and the defendant No. 1, that the latter duly delivered the possession of the said plot to the plaintiff on 29‑4‑1966. If, however, it is assumed that possession of the disputed plot was not delivered by the defendant No. I to the plaintiff, then in that case the plaintiff's Suit No. 144 of 1966 itself will not be maintainable as, according to the decision of this Court in Noor Shad Jafarje & Som v. Syed Riazuddtn Ahmed (P L D 1959 Kar. 616), to which my attention was invited by Mr. Naimuddin, the relinquishment of tenancy without' surrender of possession does not operate as surrender of tenancy. The plaintiff's remedy, in such a case, would be to proceed under the West Pakistan Urban Rent Restriction Ordinance, 1959, for the eviction of the defendants. But I am satisfied on evidence that the defendant No. 1 did deliver possession of the disputed plot to the plaintiff on 29‑4‑1966.

9. The next question is whether the defendants, or either of them, are in possession of the disputed plot or any part thereof. In this connection the plaintiff has made much of the defendant No. 2'a plaint in Suit No. 109 of 1967, in which these defendants claimed that no actual possession of the plot was delivered by the defendant No. 1 to the plaintiff, and that the plaintiff was threatening to take over the possession of the whole plot in pursuance of some arrangement alleged to have been entered into between bar and the defendant No. 1 through the intervention of the City Deputy Collector. But these statements in this plaint do not have much weight in view of the order made on 30‑5‑1966 by Mr. Abdul Ghafoor Shaikh, VII Civil Judge, First Class, Karachi. This learned Judge visited the disputed plot, and has stated in his order that only a small portion of the plot was in the defendant No. 2'a possession, and that the possession of the remaining plot was with the plaintiff, who was carrying thereon construction work. The order also recorded the agreement between the plaintiff and the defendants No. 1 and No. 2, to the effect that pending decision of Suit No. 109 of 1967, the defendant No. 2 shall retain possession of a 3 feet wide portion, adjoining Plot No. 3/2, of the disputed plot. Thus, on 30‑5-1966, the defendant No. 2 only was found to be in possession of a portion of the plot in question. There is no evidence that the defendant No.1 retained possession of any part of the plot after 29.4‑1966. The further evidence on this question is the report, Exh. 9, of the Nazir of this Court, who was appointed Commissioner to make local investigation at the disputed Plot No. 3/4. This report was made on 6‑8‑1966, and it contains the findings that a portion, measuring 351 sq. yds., of the disputed plot, shown in red and bounded by 'C', 'D' 'X' and Y' in the sketch Exh. 9/1, out of the total area of 727 sq. yds., was in possession of the defendant No. 2. In his evidence in Court, the Nazir stated that some old cars and oil drums belonging to defendant No. 2 were lying on this portion. It has been noted that by order dated 30‑5‑1966, in Suit No. 109 of 1967, the plaintiff agreed that the defendant No. 2 may‑retain a 3 feet wide portion of Plot No. 3/4, and on the remaining portion, the plaintiff was at liberty to proceed with her construction. This construction, since there is no reference to it in Exh. 9, appears to have stopped by the time the Nazir went to the site for local investigation. Exh. 11/2, shows that the Karachi Municipal Corporation suspended, on 15‑8‑1966, its approval to the building plan for this plot as it was alleged that the plaintiff was making construction on the "cut‑line". It appears that due to the objections of the Municipal Corporation and the Karachi Development Authority, construction on the plot must have been stopped even before suspension of approval to the building on the plot, and it is then that the defendant No. 2 must have extended their possession of Plot No. 3/4 beyond the 3 feet wide portion, which, they were permitted to retain by the consent order dated 30‑5‑1966 of the VII Civil Judge. It is in this way that the defendant No. 2 must have taken over 351 sq. yards of the disputed plot. But it is not clear from evidence as to from what date they started using this portion and, in the absence of any material on this question, it would be reasonable to count the defendant No. 2's possession of the 351 sq.,yds., portion of Plot No. 3/4 from the date of the Nazir's report, Exh. 9, that is from 6‑8‑1966. I would, therefore, hold that the defendant No. 2 only are in possession of a portion measuring 351 sq. yds., of the disputed Plot No. 3/4, and this possession, being without the plaintiff's permission, is wrongful as, after the surrender of tenancy by defendant No. 1, the defendant No. 2, had no right to extend their possession beyond the 3 feet wide portion permitted to them under Order of 30‑51966.

10. Issue No. 6 ire Suit No. 144.of 1966.‑Tae question under this issue is, to, what compensation the plaintiff is entitled for the wrongful occupation of the said plot, or a portion thereof, by the defendants or either of them. In her plaint, the plaintiff claimed Rs. 18,000.00 as damages up to the date of the institution of the suit, this amount being calculated at tire rate of Rs. 500.00 per day, which, according to the plaintiff, would have been the, daily rent of the proposed multi‑storeyed building on her plot, bad this plot not been wrongfully occupied by the defendants. The plaintiff has claimed further damages at the same rate from the date of the suit until delivery of the possession of the disputed plot to her under the decree of this Court. Now, compensation for wrongful occupation of immovable property is given by awarding to the owner mesne profits, which expression, according to its definition in section 2(12), C. P. C. means "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits" but does not "include profits due to improvements made by the person in wrongful possession". The test set by this definition of mesne profits is not what the plaintiff has lost by exclusion, but what the defendant has or might reasonably have made by his wrongful possession, and what the plaintiff in such a case might or would have made can only be relevant as evidence of what the defendants might with reasonable diligence have received. This is the view taken by the Judicial Committee of the Privy Council in Grudas Kundu Choudhury and others v. Kumar Hemendra Kumar Roy (AI R 1929 P C4300), Harry Kempsoa Gray and another v. Bhagu Mian and others ((1929‑30) 57 I A 105) and Secretary of State for India in Council v. Saroj Kumar Acharlya Choudhury and others ((1934) 621 A 53). This legal position is now well‑settled. The rule laid down by the Privy Council has been applied by the majority of the High Courts both in Pakistan and in India, so, there is no substance in the plaintiff's claim that she should be given mesne profits at the rate of Rs. 500.00 per day, because this is the daily rent which she expected from the multi‑storeyed building on her plot. Mr. Fakhruddin, the learned Advocate for the plaintiff did, in his arguments, appreciate, this position, and accordingly contented himself with claiming mesne profits at double the rent which the plaintiff received for the disputed plot from the defendant No. 1. For this purpose, the learned counsel relied on four Lahore decisions, that is, Pirbhu Dial v. Ram Chand and others ((1904) 39 P R 27); Rue Khan v. Ghulam Muhammad (A I R 1924 Lah.643); Mul Raj v. Irdar Singh and others (A I R 1928 Lah. 554) and Kirpa Ram Brij Lal v. Municipal Committee Amritsar and others (A I R.1929 Lah. 547). In all these decisions, the principles of the English statute 4, George II, for awarding mesne profits at double the rent were applied. Thus, in Firbhu Dial v. Ramchand, Robertson, J., observed that when the "tenant has held over wilfully and contumaciously, the Courts in this country would properly award reasonable damages and the penalty laid down in England by‑statute 4, George II, Chapter 28, section 1, of double the rent may sometimes be taken as a fitting standard". With respect, I would say that this observation is not in accord with the statutory definition of the mesne profits given in section 2(12) of the Code of Civil Procedure, nor even with the test laid down by the Privy Council in the cases noted above. The correct rule is that mesne profits should be awarded on the basis of actual profits which the wrong‑doer received or which he might have received with ordinary diligence. Where, however, there is no material available to ascertain the profits actually received by the wrong‑doer, or which he might with diligence have received, the rent according to the prevailing rates for like lands, or the rent which the land in dispute actually fetched, is treated as safe basis for assessment of the mesne profits. Thus, in Grish Chunder Lahiri v. Shoshi Shikhareswar Roy ((1900) I L R 27 Cal. 951(PC)), the Privy Council approved the award of mesne profits on the basis of the prevailing rates of land, observing that "it is fair to infer that a person in possession of land may by ordinary diligence get rent for it according to the prevailing rates for such land, and that the true owner wrongfully dispossessed has been loser by that amount". In Province of Bengal v. Heirs of Sachindra Kumar Roy (A I R 1943 Cal. 125), mesne profits were assessed according to the rents actually due from the tenants for the lands alleged to be in, wrongful occupation of the defendants. Nasim Ali, J., observed in this case that the burden of proof is on the plaintiff to show that with reasonable diligence more might have been received then the defendant actually realised. This Court also, in the case of Boman Abadan Irani v. Jehangir J. Mobed (P L D 1967 Kar. 449), assessed mesne profits according to the monthly rent which the tenant holding over paid to the Landlord. In the case before me, the plaintiff did not bring any evidence with regard to the prevailing rents of open lands on McLeod Road, or even evidence to show that with more diligence, more might have been received than the monthly rent of Rs. 800.00 paid by the defendant No.1 to the plaintiff. In any case, the defendant No. 2, who have been shown to be in possession of a 351 sq. yards portion of the disputed land do not appear to have received much advantage out of this occupation, as, according to the evidence of Muhammad Naim Qureshi, partner in defendant No. 2, the petrol station, in connection with which the disputed land was being used, was de‑commissioned on 29‑6‑1966 at the plaintiff's instance, and the portion of 351 sq. yards, land, as stated by the Nazir in his evidence, was used only for parking cars and storage of oil drums. Thus, due to the absence of any other material on record, the assessment of mesne profits has to be according to the rent which the defendant No. 1 paid to the plaintiff.

11. It has now to be considered whether the plaintiff is entitled to any mesne profits from the defendants or either of them. It has been found that the defendant No. l did, in fact, deliver the possession of the disputed land to the plaintiff on 29‑4‑1966, and it has not been shown that thereafter, they again entered upon the land. According to the report of the Nazir, Exh. 9, it is the defendant No. 2 who were found in possession of 351 sq. yards of the disputed plot on 6‑8‑1966, though the consent order recorded on 30‑5‑1966 by the VII Civil' Judge, permitted the defendant No. 2 to retain possession of a 3 feet wide' portion only of the plot. But there is no evidence as to the date when these defendants encroached upon further portions of this land. In the absence of this evidence, these defendants should be treated to be in possession of 351 sq. yards only from 6‑8‑1966, when the Nazir made his report, Exh. 9. Mr. S. A. Nusrat, the learned Advocate for the defendant No. 2, however, contended that no mesne profits could be claimed by the plaintiff even if it were found that these defendants made unauthorized encroachments upon half of the disputed plot. This argument was sought to be supported on three grounds: firstly, that by the consent order dated 30‑5‑1966, the plaintiff agreed that these defendants should retain 3 feet wide portion of .the disputed plot and that on the remaining part, the plaintiff was at liberty to proceed with her construction; secondly, the plaintiff did not suffer any loss due to this encroachment, as admittedly sanctions given for construction of this plot by the Karachi Municipal Corporation and the Karachi Development Authority were cancelled and were not restored until 20‑10‑1966 and 10‑3‑1967 respectively; and, thirdly, according to the evidence of D. W. Muhammad Naim Qureshi, partner in the defendant No. 2 and the admission of Muhammad Ali, the plaintiff's attorney, in his affidavit filed in this Court on 12‑7‑1966, the defendant No. 2's Petrol pump was de‑commissioned, at the plaintiff's instance by the Inspector of Explosives, Government of Pakistan, on 29‑6‑1966, and has since this date remained de‑commissioned. Reference in this connection was made to the decision of the High Court of Calcutta in Province of Bengal v. Heirs of Sachindra Kumar Roy, in which it was held that where the defendant is restrained from letting out the lands, the plaintiff is entitled to mesne profits' only for the period till the defendant was restrained. But the principle laid down in this decision would not, in my opinion, apply to the present case. No doubt the permission for running the petrol pump was suspended, and it is possible that this was done at the plaintiff's instance. Bat according to the Nazir's report, Exh. 9 the defendant No. 2 were actually using a portion, measuring 351 sq. yards, for the purpose of parking of cars and storage of oil drums, and continued to retain on the land the air tower and a wooden cabin. The area in the use of these defendants is much in excess of what was permitted to them by the consent order dated 30‑5‑1966. The defendants, therefore, cannot, plead this order, or even the stoppage of construction as justification for withholding the grant of mesne profits to the plaintiff, particularly when they, by filing Suit No. 109 of 1967, repudiated the delivery of possession of the disputed land by the defendant No. 1 to the plaintiff, and even went to the length of seeking to restrain the plaintiff, by an injunction, to assert possession of the suit land. In my opinion, the very use by these defendants of 351 sq. yards of this land makes them, and not the defendant No. 1, liable to pay mesne profits to the plaintiff.

12. The next point which has to be considered is whether mesne profits, to which the plaintiff may be entitled to, should be assessed now, or an order should be made directing an enquiry as to 'mesne profits under Order XX, rule 12, C. P. C. . The defendant No. 2's liability for mesne profits arises only from 6‑8‑1966, when they were found by the Nazir to be in possession of a 351 sq. yards portion. This date is subsequent to the institution of the suit. The plaintiff, in my opinion, is not entitled to any mesne profits before this date, as she herself consented in Suit No. 109/1967 that the defendant No. 2 may retain possession of a 3 feet wide portion, and she has not adduced any evidence as to the date when 'these defendants trade encroachments in excess of this portion. Ordinarily, the Court should direct an enquiry as to mesne profits from the date of the institution of the Suit. But it is competent to the Court to dispense with this enquiry, and to pass a decree finally determining the amount of mesne profits payable subsequent to the institution of the suit, if it is not necessary to make such an enquiry. The provisions of Order XX, rule 12, C. P. C. directing an enquiry as to mesne profits, relate only to procedure and not to the suggestion of the Court. See Vella Yeeran Chetti v. V. Veeran Chetti and another (A I R 1938 Mad. 727) and Geneshi Lal Sharma v. Sm. Smehalata Dassi (A I R 1947 Cal. 68). In the present case, an enquiry into future mesne profits is not necessary because at the end of the arguments in the two suits before me, the parties filed a consent statement, whereby they argued that Mr. G. Raymond, Advocate of this Court, be appointed commissioner to demarcate and fix the boundaries of the disputed Plot No. 3/4, and that the defendant No. 2, after such demarcation, shall deliver the portion of the plot in their possession to the plaintiff. In view of this agreement between the parties, the enquiry is to future mesne profits subsequent to the date of the institution of the suit may with convenience be dispensed with.

13: It is next to be determined as to what should be the quantum of the mesne profits to be given to the plaintiff. I have already held that the defendant No. 2 are liable, by reason of their possession of a 351 sq. yards portion of the disputed land; to pay mesne profits to the plaintiff as from 6‑8‑1966. The plaintiff is not entitled to claim mesne profits for the whole of the land. The defendant No. 2 were in use only of 351 sq. yards and this use cannot be said to have caused any prejudice to the plaintiff, or obstruction in her building activities. The plaintiff's construction, as noted above, was stopped by reason of the suspension of building approvals given earlier by the Karachi Municipal Corporation and the Karachi Development Authority, and these approvals were not restored until 20‑10‑1966 and 10‑3‑1967 respectively. The plaintiff was left at liberty in the consent order dated 30‑5‑1966, to proceed with her construc tion on the plot. If she could not make any‑progress in this connection, it was due, it appears, not to the encroachments of the defendant No. 2, but the suspension of the building approvals. It became possible for the defendant No. 2 to make use of the disputed land in excess of the portion which they were permitted to retain by the consent order, only because the plaintiff was compelled to suspend the construction due to the withdrawal of the building approvals. In these circumstances, the plaintiff is entitled to mesne profits only in respect of 351 sq. yards portion, which, approximately constitutes half of the disputed land. The monthly rent of the whole plot which the plaintiff received from the defendant No. 1 was Rs. 800.00. The rent of the half portion accordingly should be Rs. 400.00 per month, which the plaintiff should receive as mesne profits, together with the Municipal taxes, that is, conservancy and water taxes, which are assessed at 141 percent of the monthly rent and are payable by the tenants. The Municipal taxes on rental of Rs. 400.00 per month would come to Rs. 58.00 per month. The defendant No. 2 are, therefore liable to pay to the plaintiff Rs. 458.00 per month from 6‑8‑1966 up to 2‑10‑1967, which is the date of the aforesaid consent statement filed by the parties in the present proceedings. The total comes to Rs. 6,412.00 for almost 14 months from 6‑8.1966 to 2‑10‑1967 to which amount the plaintiff is entitled with further interest on this amount at six per cent. per annum from the date of the decree until payment.

14. Issues Nos. 7 & 8 in Suit No. 144/1966.‑On the evidence on record, both Mr. Fakhruddin, the learned Advocate for the plaintiff, and Mr. Naimuddin, the learned Advocate for the defendant No. 1, agreed that the defendant No. 1 have paid Municipal taxes for the period up to 1961‑62, and the provincial taxes to the Excise and Taxation. Department, Government of West Pakistan, up to 1966, Municipal taxes for the period sub sequent to 1961‑62 are under dispute and these defendants have preferred appeals against the assessment of taxes for this period. These defendants, accordingly, gave an undertaking in Court, through Mr. Naimuddin, that they will pay and discharge all the demands for Municipal taxes for the period up to 29‑4‑1960, when possession of the disputed Plot No.3/4 was delivered by them to the plaintiff. Accordingly, I hold that these defendants shall pay taxes to the Karachi Municipal Corporation for the plot in question for the period subsequent to 1961‑62 up to 29‑4‑1966, and that if these taxes or any part thereof are recovered by the Karachi. Municipal Corporation from the plaintiff, the latter would be entitled to claim re‑imbursement of such amounts as may be paid by her from the defendant No. 1. These issues e decided accordingly.

15. Issues Nos. 8, 9, 10 and 11, in Suit No. 144 of 1966.‑ These issues were raised at the instance of the defendants who however, did not address any arguments thereon. Accordingly, I treat these issues as having been dropped.

16. Issue No. 12.‑In view of the findings under issues Nos. 1 to 6, I hold that the plaintiff had cause of action to bring her Suit No. 144 of 1966.

17. Issues Nos. 1 and S, in Suit No. 109 of 1967.‑‑The defen dant No. 2, being defendant No. 1's dealers, admittedly were mere licensees of the latter In respect of Plot No. 3/4 for the purpose of running the petrol station located on Plot No. 3/2." It was not seriously disputed that with the surrender of lease by the defendant No. 1, the defendant No. 2's licence itself came to an end. I would, therefore, hold that the defendant No. 2 were not competent to bring Snit No. 109 of 1967 to restrain the plaintiff from asserting her possession of the disputed plot On the same ground, I would also hold that the defendant No. 2 are not entitled to the declaration and injunction which they have sought in their Suit No. 109 of 1967.

18. Issue No. 13 in Suit No. 144 of 1966 and Issue No. 6 in Suit No. 109 of 1967,‑‑These issues relate to the reliefs which the parties or any of them may be found to be entitled to. I have already held that the defendant No.2 are not entitled to any relief. As regards the plaintiff, the parties filed before me on 2‑10‑1967, at the end of their arguments, the following joint statement:‑--

"That the parties agree that without prejudice to their respective contentions and without admission or acceptance of any liability for any claim for mesne profits or damages on the part of the dependants or as to the question of possession of Plot No. 3/4; Mr. Raymond, Advocate may be appointed by this Hon'ble Court as Commissioner to measure Plot No. 3/4 S: R. 13 and 3/2 S. R. 13, McLeod Road Karachi ands determine the boundaries of Plat No. 3/2 taking the boundary wall of Spencers Building as fixed line of demarcation allowing 1557 sq. yards to Plot No. 3/2 in accordance with the sketch of the plat supplied by C. D. C. and annexed hereto and in accordance with the measurements of the sides or boundaries shown therein and fix a line separating Plot No. 3/2 from Plot No. 3/4 and demarcate Plot No. 3/2 and 3/4. The Commissioner may acquire services of any Engineer and/or Surveyor and/or any Surveyor from City Deputy Collector. The fee of the Commissioner be fixed at Rs. 500.00 and any fee of the Engineers or Surveyors will be fixed in the discretion of the Commissioner and all the fees will be borne half by the plaintiffs and half by the defendants in equal shares.

"The Commissioner shall fix the boundaries after notice to the parties and parties with their Engineers If any, may assist the Commissioner.

The defendant No. 2 further agrees to hand over to the plaintiff any portion of Plot No. 3/4 found to be in their possession by the said Commissioner."‑

On the basis of this statement, I appoint Mr. G. Raymond as Commissioner, and direct that he will demarcate and fix boundaries of Plot No. 3/4, S. R. 13 and Plot No. 3/2, S. R. 13, McLeod Road, Karachi in accordance with the terms contained in this joint statement, and that within seven days of such demarcation and fixation of boundaries, the defendant No. 2 shall deliver possession of Plot No. 3/4, S. R. 13, McLeod Road, as demarcated by the Commissioner, Mr. G. Raymond, to the plaintiff: I further direct that the defendant No. 2 shall pay to the plaintiff Rs. 6,412.(0 (Rupees six thousand four hundred twelve) with interest at six per cent per annum from the date of the decree until payment, as and by way of mesne profits, .in accordance with the findings under Issue No. 6, Suit No. 109 of 1967 accordingly dismissed with costs. Suit No. 144 of 1966 is dismissed against Defendant No. 1, but is decreed as above against defendant No. 2 who are further directed to pay proportionate costs of this suit to the plaintiff.

A. E. Suit decreed.

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