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Suit No.296 of 1971, decided on 14th January, 1987.

--O.XXI, R.35--Suit for possession--Petitioner having 5/6 share in house in dispute whereas defendant having 1/6th--Offer of plaintiff, to purchase house for a certain consideration, a against offer of defendant which was lower than of plaintiff, accepted previously by High Court and defendant was asked to vacate portion of house in his occupation--Even after plaintiff deposited amount equal to share of defendant with Official Assignee, defendant refused to vacate portion of house in his possession--High Court ordered that Official Assignee would take possession of portion of house in occupation of defendant with police, aid.

Mubarak Hussain Siddiqui for Plaintiffs Nos.l and 3.

S. Sarwar Ali for Defendants.

Mr. S. Sarwar Ali submits on behalf of the defendants that the share of the Defendants is 1/6th in the property. Rest- 5/6 belongs) to the Plaintiffs. He further submits that the share of the defendants on calculation comes to Rs.91,666, which should have been deposited with the official Assignee. The Official Assignee on the other hand submits that, later on, by order dated 31st August, 1986 the Plaintiff was directed to deposit Rs.55,721.64. However, on receipt of the notice of demands from K.M.C. and the House Building Finance corporation the amount was recalculated by him and it was found that Rs.67,534.81 is due against the plaintiff towards the share of the defendants, which the Plaintiff has accordingly deposited in this Court with the Official Assignee on 7th January, 1987. The Official Assignee also filed a statement of account.

I have perused order dated 20th April, 1986 and I find that there is a mention of total amount of consideration of sale as Rs.5,50,000. It has not mentioned the exact amount to be deposited by the plaintiff towards the share of the defendant/L. Rs. In fact the learned Judge was pleased to direct the Official Assignee to calculate the share of the defendant/her legal heirs according to the decree already passed.

Mr. Mubarak Hussain Siddiqui submits that the amount of the share of the son and daughter of Shakir Hussain is also to be deducted out of the share of the deceased Rabia Begum under Section 4 of the Family Laws Ordinance, 1961 which according to the calculation comes to Rs.22,517. In other words, Mr. Mubarak Hussain Siddiqui means to say that the share of the defendant/L.R. after deducting this amount comes to Rs.45,017.81. Mr. Sarwar Ali, learned counsel for the Defendant/L.Rs. does not oppose this legal position. However, Mr. Mubarak Hussain Siddiqui has deposited the whole amount of Rs.67,534.81, without debiting the share of the son and daughter of late Shakir Ali subject to his raising objection at the time when withdrawal application is made by the defendants for withdrawal of the amount. However, if there is some mis-calculation or dispute about the exact amount of the share of the defendant /L.Rs., Mr. Mubarak Hussain Siddiqui undertakes to deposit the same as and when directed by the Court or by the Official Assignee.

For the present I am concerned with the compliance of the order dated 20th April, 1986, whereby the offer of the Plaintiff to purchase the house for Rs.5,50,000 as against the offer of defendant for Rs.2,46,000 was accepted by my learned brother Haider Ali Pirzada, J. The said order also contains a direction to the L.Rs. of the defendant to vacate the house in their possession. Today, I again asked the three L. Rs. of the Defendant present in Court, whether they were prepared to comply with the order for vacating the house in their possession, but through their Counsel Mr. S. Sarwar Ali, they refused to do so. In view of this refusal allow the request of Mr. Mubarak H. Siddiqui for Police aid. The Official Assignee will take possession of the portion of the house in occupation of the defendant with Police aid, call up on 19-1-1987. The Defendants are directed to be present in person.

M.Y.H./R-8/K Order accordingly.

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