' MUHAMMAD JEHANGIR ARSHAD, J.---Ghulam Yasin appellant is aggrieved of the order, dated 25- 9-2004 passed by learned Additional District Judge, Rahim Yar Khan whereby the appeal filed by Shah Nawaz respondent against the order, dated 7-5-2004 of learned Senior Civil Judge/Rent Controller, Rahim Yar Khan dismissing ejectment application, was allowed and ejectment application filed by the Shah Nawaz respondent was accepted as prayed for.
2. The facts in brief are that Shah Nawaz respondent No.2 claiming himself as ownership fully described in the headnote of the petition, filed an ejectment application against Ghulam Mustafa respondent No.1 claiming his ejectment from the disputed property on the ground of wilful default and personal requirement of the same for running the business of his sons. Ghulam Mustafa respondent No.1 filed written reply to the said application on 6-11-2000 wherein he took a preliminary objection that although he had obtained shop in dispute from Shah Nawaz respondent No.2 through agreement, dated 11-9-1999 yet as subsequently certain dispute arose between him and Shah Nawaz therefore, he (Ghulam Mustafa vacated the said shop and handed over its possession to Shah Nawaz in March, 2000 and occupied another shop owned by Ghulam Yasin appellant through agreement, dated 19-4-2000 and since then he had nothing to do with the disputed shop. In the light of written reply of Ghulam Mustafa respondent, the learned Rent Controller vide order, dated 14-2-2001 without proceeding further, accepted the ejectment application and directed that Shah Nawaz could take over possession of the shop himself or he may get the assistance from the Court, if need be. Against the said order of the learned Rent Controller, dated 14-2-2001, Ghulam Mustafa filed an appeal alleging that on the basis of said order he was being evicted from the shop adjacent to the shop in dispute and owned by the Ghulam Yasin appellant. The appeal was allowed by learned Additional District Judge, Rahim Yar Khan on 28-3-2001 and the case was remanded to the learned Rent Controller for deciding the matter afresh after framing issues and recording the evidence. On remand the appellant moved an application on 17-5-2001 before the learned Rent Controller 'for being impleaded as party, which application was allowed on 1-12-2001 and the appellant was impleaded as party in the array of respondents and amended ejectment petition was filed on 1-1-2002. Ghulam Yasin appellant filed reply to the ejectment petition and in the light of pleadings of the parties, the following issues were framed on 10-4-2001:-- ' Issues:--
(1) Whether relationship of landlord and tenant does not exist in between the parties? OPR.
(2) Whether petitioner has no cause of action to move this application? OPR.
(3) Whether the petitioner has not applied to this Court with clean hands and the petition is liable to be dismissed? OPR.
(4) Whether the petition has been filed only to create harassment to the respondent and therefore is liable to be dismissed with special costs? OPR
(5) Whether the petitioner is entitled to the relief as prayed for? OPA.
(6) Additional issues framed on 1-2-2002 after filing of written statement by the appellant:--
(1) Whether the premises in dispute is actually Shop No. 1492-A and respondent No.2 is in possession of same? OPR No.2.
(2) Whether ejectment petition is based on mala fide and petitioner intends to get the disputed premises vacated showing it to be Shop No.1492? OPR. No.2.
(3) Relief.
' Additional Issues framed on 21-11-2002:-- (2-A) Whether respondents have entered the number of disputed of property as B.V. 1492-A in place of B.V. 1492 in the record of Excise and Taxation Department having collusion between them?
If so, its effect" OPA.
(3) Relief.
3. The learned Rent Controller after recording evidence of the parties, vide order, dated 7-5-2004 dismissed the said application. Feeling aggrieved against the order, dated 7-5-2004, Shah Nawaz respondent filed an appeal which was accepted by learned Additional District Judge vide order, dated 25-9-2004 whereby the order of the learned Rent Controller, dated 7-5-2004 was set aside and the appellant was ordered to be evicted from the suit property as prayed for, hence this S.A.O.
4. It has been argued by learned counsel for the appellant that admittedly the property in dispute formed part of undivided joint Khata owned by the appellant and Shah Nawaz jointly, hence, the learned Appellate Court had no jurisdiction to pass the ejectment order against the appellant being joint owner of the disputed property and in violation of basic law that no co-sharer can eject another co-sharer without getting the joint property partitioned by all metes and bounds. Learned counsel has placed reliance on the case "Muhammad Nawaz and 2 others v. Sh. Muhammad Latif and 2 others" (1971 SCMR 198). Further argues that appellant is in possession of Shop No.1492-A as joint owner, whereas the shop claimed by Shah Nawaz carries the Property No.1492 and the same number is mentioned in the rent deed, dated 11-9-1999 Exh.A/1 through which Shah Nawaz respondent rented out the property to Ghulam Mustafa respondent and unless there is demarcation regarding the actual property in dispute which is only possible through partition suit, the impugned order could not have been passed and that the learned Rent Controller had rightly dismissed the application of the respondent by holding that shop in possession of the appellant was Shop No.1292/A whereas the shop allegedly claimed in the ownership of Shah Nawaz respondent is 1482 and in case if Shah Nawaz was aggrieved with the wrong entry in the record of Excise and Taxation Department, he could approach the said Department for getting the entries correct. Learned counsel finally argues that as respondent Shah Nawaz failed to prove the existence of relationship of landlord and tenant, the learned Rent Controller had therefore, rightly dismissed his ejectment application.
5. On the other hand, learned counsel for respondent Shah Nawaz has argued that as Ghulam Mustafa had admitted the initial tenancy created on the basis of agreement Ex.A/1, hence he was estopped from denying his liability as tenant and that he had no authority to deliver/hand over possession of the demised property to the appellant. Learned counsel contends that appellant has claimed ownership of the disputed property on the basis of gift-deed Exh.R/2 whereas the property described in the Gift Deed was a different property having different boundaries though forming part of the joint khata as described in the copy of register H aqdaran Zameen Exh.R/5. He has further argued that although Ghulam Yasin is joint owner of the khata where the shop in dispute is situated yet the fact remains that he obtained possession of the disputed shop from Ghulam Mustafa respondent No.1 who was inducted by respondent No.2 as a tenant therefore, possession of Ghulam Yasin appellant over the disputed property as owner is on better footings then that of Ghulam Mustafa as tenant, as such the ejectment petition has been rightly accepted by the learned Additional District Judge. The learned counsel in support of his pleas has placed reliance on the following judgments:-- "Muhammad Daud v. Mst. Surriya Iqbal and another" (PLD 2000 Peshawar 54), Dr. Ubaidur Raza Khan v. Mrs. Saghera Bang and another (1994 CLC 1302), "Saeeda Begum v. Shameem Ahmad (1994 SCMR 791), "Nazir Ahmad v. Mst. Sardar Bibi and others" (1989 SCMR 913), "Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani" (PLD 1985 Supreme Court 1), "Ghulam Mustafa and others v. Mst. Muhammadi Begum and others" (1991 SCMR 432), "Ghulam Mustafa and another v. Mst. Muhammadi Begum and another" (1990 CLC 246), "Isa Khan and 28 others v. Barkatullah and 9 others" (PLD 1989 Peshawar 67), "Rabnawaz v. Haji Muhammad Iqbal and 2 others" (2003 SCMR 1476), "Khawaja Masood Ahmed and another N. Sajad Sarwar and 2 others" (2002 MLD 434) and "Hafiz Abdul Majeed v. Muhammad Younis" (1992 MLD 82).
6. I have considered the above-mentioned arguments of learned counsel for the parties, perused the available record with their assistance and have also gone through the cited judgments.
7. Admittedly, the appellant and Shah Nawaz respondent are real brothers. The property in dispute is also admittedly a part of undivided joint Khata No.99 of 1998 per entries of Register Haqdaran Zameen for the year 1997-98 (Exh.R/5), wherein Ghulam Yasin appellant and Shah Nawaz respondent No.2 have been shown as joint owners along with their third brother Allah Nawaz and some Rehmat Ullah. Although, Shah Nawaz respondent in his ejectment petition has not shown the number of property and is content with giving the boundaries of the property only, however, according to Exh.A/1 which has been produced by respondent Shah Nawaz as Rent Deed, the Property No. 1492/BV was let out to Ghulam Mustafa respondent No.l. The contention of the appellant is that he is owner in possession of Shop No.1492-A/BV and Ghulam Mustafa after vacating the Property No.1492 and delivering its vacant possession to Shah Nawaz respondent later on occupied Shop No.1492-A owned by him but Shah Nawaz tried to get the ejectment order executed against the property of Ghulam Yasin bearing No.1492-A which is an independent unit and has nothing to do with the Property bearing No.1492 let out by Shah Nawaz to Ghulam Mustafa.
To support his title over Shop No.1492 Ghulam Yasin appellant has brought on record extract from the office of Excise and Taxation Department i.e. PT-1 as Exh.R/1 wherein Property No. 1492-A/BV is shown in the ownership of Ghulam Yasin appellant. The fact that in the record of Excise and Taxation Department, Shah Nawaz is shown as owner of Shop No.1492 and Ghulam Yasin to be the owner of Shop No.1492-A is also admitted by Jam Muhammad Ajmal Inspector Excise and Taxation while appearing as A.W.1 in his cross-examination. Further Shah Nawaz appearing as his own witness as A.W.3 in cross-examination admitted that two shops existed at the spot, one bearing.
No.1492 and the other bearing No.1492-A. Shah Nawaz further admitted that property in dispute is situated in Square No.512/10 Killa No.20 which admission on the part of Shah Nawaz is also corroborated by the entries of Register Haqdaran Zameen for the year 1997-98 Exh.R/5 hence it can safely be concluded that shop in dispute irrespective of its number is part of a joint property falling in an undivided khata and has not been partitioned so far. Hence, to this extent Shah Nawaz respondent cannot claim himself to be sole owner of the shop in dispute. So far as the claim of Shah Nawaz respondent that there is only one shop at the spot i.e. Shop No.1492 and that property in possession of the appellant is part of Shop No.1492, is concerned, this being a question which cannot be decided in ejectment proceedings and can only be resolved through a civil suit for partition. Similarly, the question whether Ghulam Mustafa respondent is still in possession of any part of the property as claimed by Shah Nawaz respondent, the same is negated by Shah Nawaz respondent himself admitting that Ghulam Yasin is occupying Shop No.1492-A, although with the addition that Ghulam Mustafa respondent was also occupying the said portion along with Ghulam Yasin. This again indicates that there is in fact only one property on the spot and Ghulam Yasin appellant is in occupation of the same, may be as a joint owner or co-sharer along with Shah Nawaz respondent.
8. The above appraisal of evidence leads me to conclude that admittedly Ghulam Yasin appellant is in possession of the property in dispute at the spot and he being co-sharer of the same in terms of entries of Exh.R/5 even through Ghulam Mustafa, though not admitted, Shah Nawaz could under no provision of law seek ejectment of Ghulam Yasin without getting the joint property partitioned, as no co-sharer can hold any joint property as tenant under other co-sharer, therefore, the learned Rent Controller was justified in holding that there existed no relationship of landlord and tenant between the parties while answering Issue No.1 which is the crux of the case. I am fortified in my view while holding that co-sharer in possession of joint property cannot be evicted without filing a suit for partition, by law declared by the Hon'ble Supreme Court of Pakistan in the case "Muhammad and 2 others v. Sh. Abdul Latif and another" (1991 SCMR 198) and another celebrated judgment of this Court in the case "Muhammad Hanif v. Mst. Ahmadi Begun} " (1996 CLC 137).
9. So far as the case-law cited by learned counsel for respondent No.2 is concerned, I regret to point out that same is not applicable to the facts and circumstances of the instant case being distinguishable. In the cited judgments the matter involved was with regard to the purchase of demised or tenanted property by the tenant during pendency of ejectment petition although from other co-sharers, when it was held that such a tenant having admitted one of the co-sharer as landlord was estopped from denying the title of landlord on the strength of subsequent purchase.
Although in subsequent judgment "Izhar ul Hasan v. Abdul Rehman" (1992 SCMR 1243), the Hon'ble Supreme Court extended this protection even to the tenants purchasing portion of tenanted property during pendency of ejectment proceedings, by holding that after purchasing share in the tenanted property he did not remain tenant and became co-sharer, hence, cannot be evicted without suit for partition. In view of my findings under Issue No.1 holding that no relationship of landlord and tenant exists or existed between appellant and respondent No.2, rather they both being co-sharers, hence ejectment petition filed by Shah Nawaz respondent No.2 could not even proceed and the same was rightly dismissed by the learned Rent Controller vide order, dated 7-5- 2004 and the appeal filed by Shah Nawaz respondent against the said order was wrongly accepted by the learned Appellate Court/Additional District Judge, Rahim Yar Khan. Even there was no need to have discussed the further issues other than Issue No.1 in the absence of existence of relationship of landlord and tenant between the parties which is a condition precedent for Rent Controller before assuming jurisdiction under the Urban Rent Restriction Ordinance, 1959, therefore, the findings of learned Additional District Judge on all the issues are declared as without lawful authority. Resultantly, this appeal is allowed, the order, dated 25-9-2004 passed by learned Additional District Judge, Rahim Yar Khan accepting ejectment application is set aside and the order, dated 7-5-2004 passed by learned Senior Civil Judge/Rent Controller, Rahim Yar Khan is restored and the ejectment petition filed by respondent No.2 is dismissed.
10. It is however made clear that what has been discussed or held above; is purely tentative in nature and is confined only to the determination of question of relationship as landlord and tenant between the appellant and respondent No.2. The appellant or respondent No.2 being admittedly .
Joint owners of the disputed property falling in a joint undivided Khata, it will be open for either of the two to file a suit for partition and obtain a decree. In case, such a suit is filed, the same shall be decided by the concerned Court purely on the basis of evidence produced by the parties and strictly in accordance with law, uninfluenced by any findings/observation or remarks, etc. Passed in the present ejectmen proceedings.