Law: Civil Procedure Code (V of 1908)

Section: 12(2),12

Civil Procedure Code (V of 1908)--- ----S.2(12) O.XX, R.12---Suit for partition of property and recovery of mesne profits---Co-owner---Possession, deprivation of---Plaintiff sought partition of suit property and recovery of mesne profit on the plea that she was co-owner of suit property which was in possession of defendants---Validity---Mesne profit is damage or compensation recoverable from a person, who has been in wrongful possession of an immovable property---Wrongful possession is the very essence of claim for mesne profit---For seeking mesne profit, a person must be owner of captioned property or having right to its possession---Term mesne profit under S.2(12), C.P.C., means to include those profits, which a person in wrongful possession of such property actually received (or with the ordinary diligence) have received therefrom--- Person becomes entitled to mesne profit only when he has right to obtain possession from another person whose possession is unauthorized and who keeps the former deprived of such a possession--- First and foremost condition for awarding mesne profit is unlawful possession of the occupant of property---High Court apportioned decree under O.XX, R.12, C.P.C., in the manner that the defendants were held liable to pay share of rental value calculated for the duration when defendants took over the possession as mesne profit to plaintiff---Suit was decreed accordingly. Muhammad Akram and another v. Mst. Farida Bibi 2007 SCMR 1719; Faqir Mohammad v. Abdul Momin PLD 2003 SC 594; M. Anwar v. Dr. Gohar Ali 2007 CLC 621 and Mahmood Ali Khan v. Hamid Ali and others (CPLA No.83-K of 2014) rel. JUDGMENT ZULFIQAR AHMAD KHAN, J.----Through this lawsuit, the plaintiff Gul Bano grieves that she is one of the daughters of late Abdul Shakoor Khan who died in the year 1991 leaving five sons and three daughters (including her), as well as an immovable property bearing house No.A-323, Block-I, North Nazimabad, Karachi (said property). It is alleged in the plaint that soon after the death of her father, the defendants Nos. 1 to 3 occupied the said property, while the original documents of the said property remained in the possession of the defendant…

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