' This Second appeal is directed against an order of the District Judge, Jhelum, whereby he had dismissed the first appeal of the appellant, Muhammad Aslam. In that appeal, the appellant had challenged an order of a Rent Controller by which he had dismissed an ejectment application filed by him against the respondent, Fazal Karim.
2. The property involved in this case is a shop. It was originally owned by one Muhammad Ramzan who is grandfather of the appellant. The said Muhammad Ramzan had made an application for eviction of the respondent whereupon the respondent was directed to vacate the disputed shop.
On this, the respondent filed an appeal which was accepted by the District Judge with the result that the ejectment application was dismissed. A second appeal was, therefore, preferred by Muhammad Ramzan. During the pendency of that appeal, the appellant filed a suit against Muhammad Ramzan, who is his grandfather, for a declaration to the effect that the latter had made a gift of the shop in dispute in favour of the former and thus the former had become its owner. In that suit, his grandfather confessed judgment and, therefore, the suit was decreed.
Thereafter, the second appeal filed by appellant's grandfather in this Court, against the dismissal of his ejectment application, was also dismissed. Then, after about six months of the dismissal of his grandfather's second appeal, the appellant made an application for ejectment of the respondent on the grounds of default and personal need. When his application came up for arguments, the appellant gave up his plea of default. As regards the ground of personal need, it was held .By the Rent Controller that he had failed to establish his bona fide requirement. His application was, therefore, dismissed by the learned Rent Controller. The order of the learned Rent Controller was also affirmed by the learned District Judge while dismissing the first appeal preferred by the appellant. He has, therefore, come up in second appeal to this Court.
3. The view expressed by the learned District Judge was that the consent decree relating to the gift of the disputed shop in favour of the appellant was collusive. According to him, it was just a device to oust the respondent from the shop by having resort to a fresh round of litigation at the instance of the appellant, because after his grandfather's failure in the ejectment proceedings taken out by him, he (grandfather) could not start a second round of litigation for the eviction of the respondent.
It was, therefore, held by the learned District Judge that the ejectment application made by the appellant was mala fide. As indicated earlier, the learned District Judge also concurred in the finding of the learned. Rent Controller that the appellant had failed to establish that he needed the shop for himself.
4. Learned counsel for the appellant contended that the two tribunals below were not right in non- suiting the appellant due to the failure of his grandfather to eject the respondent. It was further submitted by him that there was no evidence on the record to show that the gift in question was collusive or fictitious. It was also pointed out by the learned counsel for the appellant that the respondent had denied the relationship of landlord and tenant between the parties but it was held by the learned Rent Controller that the said relationship did exist between the parties. It was, therefore, urged by the learned counsel for the appellant that the respondent could not question the title of the appellant to the shop in question. Another plea raised by the learned counsel for the appellant was that the two tribunals had not considered the entire evidence of the appellant on the issue of personal need, and, therefore, their orders were not sustainable.
5. In reply, learned counsel for the respondent submitted that the gift of the shop in favour of the appellant was collusive and, therefore, it was rightly held by the two tribunals that the ejectment application of the appellant was mala fide. It was also maintained by him that since there was a concurrent finding to the effect that the appellant's need was not bona fide, it could not be disturbed in second appeal.
6. Before examining the respective contentions of the learned counsel for the parties, I would like to state that, as submitted by the learned counsel for the respondent, the respondent had resisted the ejectment application, inter alia, on the ground that there was no relationship of landlord and tenant between the parties. His plea was that the ejectment proceedings had been taken out by the appellant with a view to throwing him out of the shop by starting another round of litigation after the failure of his grandfather to secure his ejectment in the first round of it. On this, the learned Rent Controller framed a preliminary issue and decided the same against the respondent. He then struck issues in respect of the appellant's averments relating to default and personal need. The issue of default was not pressed by the appellant while the, issue of personal need was decided against him, by the Rent Controller. His finding was also affirmed by the learned District Judge.
7. The main reason given by the learned District Judge for holding that the plea of personal requirement raised by the appellant was not bona fide was that the consent decree relating to the gift of the shop in his favour was collusive, He took into account two factors for forming the aforesaid view, namely, that (I) the appellant's grandfather continued to pursue his second appeal filed in this Court, against the dismissal of his ejectment application, even after the passing of the consent decree in favour of the appellant and that (2) the appellant served notice, Exh. P. 1 on the respondent calling upon him to pay rent to his grandfather upto 1st February, 1975 and thereafter to him (appellant). To my mind, the said two factors are not enough to dub the gift as a sham transaction. The second appeal Was filed by the grandfather of the appellant and if he (grandfather) continued to prosecute that appeal even after the passing of the consent decree it will not be just and proper to punish the appellant for something done by his grandfather especially when there is nothing on the record to show that the appellant was aware of the pendency of the second appeal and/or that his grandfather continued to pursue the appeal at the instance of the appellant or with his concurrence. As regards the appellant's notice, Exh. P. 1 requiring the respondent to pay rent to his grandfather upto 1st February, 1975 it has been explained in the notice itself, that it was in pursuance of the compromise (culminating in the consent decree) that rent upto the aforesaid date was to be paid to his grandfather. There is, no evidence to the contrary. There is, thus, no reason to reject the aforesaid explanation of the appellant. It is also to be noted that the tact that the appellant had demanded rent for himself for the period following the 1st February, 1975 is strong evidence of the fact that he asserted his right of ownership in regard to the disputed shop. It, therefore, belies the respondent's contention that, in reality, the shop continues to vest in the appellant's grandfather.
8. While considering the said two factors the learned District Judge omitted to attend to a number of important circumstances hereinafter enumerated. There was no urgency for arranging a collusive decree during the pendency of the second appeal of the grandfather of the appellant because he did not have a hopeless case. He had won the case before the Rent Controller and after the acceptance of the first appeal of the respondent against the order of the Rent Controller, the second appeal of the appellant's grandfather had been admitted to a regular hearing. Further, it was after about five years of the consent decree that the appellant had initiated ejectment proceedings against the respondent. If the appellant had to play as a tool in the hands of his grandfather for getting him possession of the disputed shop they would not have waited for so long to play the game. Needless to say that every consent decree cannot be regarded as the outcome of collusion between the parties thereto. More often than not, in civil suits, the parties come to terms and consent decrees are passed. It is also not infrequently that with a view to avoiding the purchase of stamps and the registration charges the parties to genuine transactions agree to become parties to civil suits and have such transactions recorded in consent decrees and not in the registered deeds. It is not the case of the respondent that after obtaining possession of the disputed shop, the appellant would re-transfer the shop to his grandfather. It has not been deposed by any one that the gift of the disputed shop was a fictitious transaction which was simply aimed a ousting the respondent. There is also no dispute between the donor and the donee in regard to the gift. The respondent being a tenant of the disputed property, therefore, cannot question its validity. He cannot stop the property from changing hands. In taking this view, I am fortified by the following observations of my learned brother Mushtaq Hussain, J (now Chief Justice of this Court) in Master Chiragh Din v. Abdul Hakim and another (1).
"The right of a tenant or lessee is in the nature of an encumberance on the right of ownership of the landlord. The right of a tenant is to the temporary use of the property in accordance with the terms of the tenancy and the right of the land-owner is consequently 'subject to and limited' by the right of the tenant to such temporary use. By the creation of a tenancy the ownership of the property vested in the land-owner does not pass to the tenant.
' The so-called right of the tenant in the present case is to remain in possession of the property in this capacity so long as the law and his own conduct permit him to do so irrespective of whether the property remains in the ownership of the Custodian, the Evacuee Property Trust Board or Dr. Abdul Hakim, the transferee.
' This encumbrance does not and cannot confer any right upon the tenant to stop the landlord from transferring the property nor does it entitle him to impede the change in legal character of the property for the power to do so falls within the domain of ownership or proprietary rights and vests in the landowner and not the lessee.
' He has at best an interest in the property, to possess the same and enjoy it during the continuance of the lease. The concept of lease contemplated a separation of the right of possession from that of ownership ; the former being temporarily vested subject to certain conditions in the lessee and the latter continuing to remain with the landlord." (Underlining* is mine)
9. One more point which deserves to be mentioned is that, as stated earlier, by raising a preliminary objection, the respondent had denied relationship of landlord and tenant between the parties. His plea was that the shop in dispute continued to vest in the grandfather of the appellant.
It was, however, held by the Rent Controller, vide his order dated the 18th September, 1975, that the relationship of landlord and tenant did exist between the parties. In that order, the learned Rent Controller had observed as follows :- "It is an admitted fact that the property in question was at one time owned by Muhammad Ramzan who is the predecessor in interest of the petitioner. He gave the same to the respondent on rent.
The petitioner is now the owner of the disputed property. He is proved to have served the respondent with a legal notice under section 13-A of the WPURRO 1959. The relationship of landlord and tenant is also proved to exist. - ' Mere fact that. Muhammad Ramzan had been prosecuting the previous application regarding the disputed premises for seeking the eviction of the respondent does not in any way have an adverse effect upon the rights of the petitioner. Anyone who administers property on his own behalf or on behalf of some one else and is entitled to recover rent shall be deemed to be a landlord.
Muhammad Ramzan had thus (1) PLD 1974 Lah. 370 been properly conducting the previous case as the landlord. Now that the petitioner is transferee of the property in question and he is proved to have sent a notice referred to above, the petitioner shall be deemed in law to be the landlord."
' The finding of the learned Rent Controller regarding the existence the aforesaid relationship has not been disturbed by the learned District Judge nor the same has been assailed before me. The appellant has, therefore, to be treated as landlord qua the respondent and if the forme can establish his bona fide requirement, the latter will have to make root for him.
10. A perusal of Exh. R. 6, which is copy of the order of this Court, whereby the aforesaid second appeal of the appellant's grandfather was rejected, would reveal that he wanted the shop for occupation of his son (father of the appellant) but the appellant needs it for his own occupation. If his grandfather had not been able to establish the need of his son, that, by itself, does not justify a conclusion that the appellant's own requirement was also not bona fide. It can hardly be disputed that if a landlord fails to oust a tenant from any property by raising the plea of personal require went and thereafter transfers the property to another person, the transfer is not debarred from seeking his ejectment on the ground of his own nee because the needs differ from individual to individual. Therefore, the plea of personal need advanced by the appellant has to be considered o its own merits and cannot be rejected just for the reason that a similar plea raised by his grandfather had not been upheld.
11. In view of what has gone above, I am unable to agree with the learned District Judge that the consent decree was collusive and aimed at throwing out the respondent from the shop in dispute and, therefore, the ejectment proceedings launched by the appellant were mala fide.
12. Now, I advert to the contention of the learned counsel for the respondent that since there is a concurrent finding of fact by the two tribunals below that the appellant did but in good faith require the disputed shop for his own occupation that finding could not be challenged in second appeal. It is true that the two tribunals have found that the appellant's requirement was not bona fide but a perusal of the record would reveal that the learned District Judge did not give any specific reason for discarding the testimony of the two witnesses, namely, Karimud-Din (P. W. 1) and Liaquat Ali Shah (P. W. 2), who were examined by the appellant in support of his case. He simply said that "the petitioner-appellant failed to bring any cogent and convincing evidence on the file to show that his requirement was bona fide". As for the learned Rent Controller, although he took notice of the statement of Karim-ud-Din (P.W. I) yet he did not give any reason whatsoever for not relying on his - deposition. The concurrent finding of the two tribunals, therefore, does not deserve the sanctity which is normally attached to such a finding. In the circumstances, I will examine the whole evidence myself and then confirm or reverse the finding of the two tribunals.
13. In this case, the parties had produced three witnesses each - The appellant, who appeared as P.W. 3, and his said two witnesses deposed that the petitioner was doing business as a watch- maker but had no regular shop for transacting that business. In rebuttal, there is the statement of the respondent as D.W. 1 couple with the testimony of his two witnesses, namely, Bashir Ahmed (D.W. 2) and Abdul Rashid (D.W. 3). They said that the appellant was not a watch-maker by profession. When cross-examined, the respondent could not, however, say if the appellant worked as a watch-maker outside Taj Cinema. The respondent and his witnesses stated that the appellant was engaged in the business of boring of tube-wells. None of them, however, availed of the Services of the appellant. According to Bashir Ahmad (D.W. 2), he had carried out boring for a person referred to as Sufi but the latter was not produced as a witness. Even if the appellant is engaged in the business of sinking the tube-wells he needs some premises for that business.
14. With a view to showing that the shop in dispute was not suitable for the business of boring the tube-wells, it was stated by the respondent and his witnesses that the shop could not contain the implements meant for the said business but they did not spell out the size of the shop and that of his implements to substantiate their plea. Also, no suggestion in this behalf was made to the appellant or his witnesses. I am, therefore, unable to believe that the shop in dispute is not fit for doing the business which, according to the respondent, is being carried on by the appellant.
15. It was unanimously stated by the appellant and his two witnesses that the appellant had no other shop, and their depositions in this behalf were not rebutted by the respondent.
16. Before winding up my discussion on the question of personal need, I would like to deal with two points noted by the learned District Judge while deciding the said question against the appellant.
One of these points was that according to his own statement the appellant was not working as a watch-maker at the time of launching the ejectment proceedings and had entered that profession during the pendency of said proceedings. It is true that, while appearing as his witness, the appellant made statement suggesting that he had taken to the above vocation during the pendency of the ejectment application before the Rent Controller but this fact alone would not justify the rejection of his plea. It has been ruled in Abdullah Bhai and others v. Ahmad Din (I). Mst.
Arnim Begum and others v. Mehr Ghulam Dastgir (2), Manzoor Ahmad Khan v. Syed Maqsood All
(3) and Messrs M. Wahab-ud-Din & Sous v. The Controller of Rent and 11 others (4) that even if a party does not have cause of action at the time of taking out legal proceedings for seeking any relief but the cause of action accrues to him during the pendency of the proceedings, the relief can be allowed to him on the basis of the cause of action so accruing in his favour. Therefore, the appellants' statement showing that he started working as a watch-maker during the pendency of the ejectment proceedings is not fatal to his case.
17. The other point mentioned by the learned District Judge was that in the ejectment application it was not stated by the appellant that he wanted to occupy the disputed shop for doing business as a watch-maker. It is true that in the said application he did not make a specific mention of that business but he did say, in so many words, that he needed the shop (1) PLD 1964 SC 106 (2) PLD 1978 SC 220 (3) PLD 1975 Lah. 1521 (4) PLD 1971 Pesh. 236 for the sake of business. Then he produced evidence indicating the precise nature of his business. In the circumstances, his omission to particularize his business in the ejectment application is of no consequence. Haji Ghulam Muhammad v. Abdul Qadir (1) is the authority in point.
18. To sum up, according to the evidence led by tile appellant he is doing business as a watch- maker but the evidence produced by the respondent is to the effect that he is engaged in the business of boring the tube-wells. Be that as it may, this much is abundantly clear from the parties' evidence that the appellant is engaged in one business or the other. It is not the respondent's case that the disputed shop is not fit for his working there as a watch-maker. His plea, however, is that it is not suitable for carrying on the business of sinking tube-wells but, for reasons given earlier, I am not impressed by this plea. There is no rebuttal of the appellant's evidence that he has no other shop in his occupation. On the contrary, at one stage, Bashir Ahmad, a witness examined by the respondent, had clearly admitted that the appellant had no other shop. G I am, therefore, of the view that the appellant needs the disputed shop in good faith for doing business. In this view of the matter, I reverse the finding of the two tribunals below on the issue of personal requirement.
19. In result, I accept the appeal with costs, set aside the orders of the two tribunals below and direct the respondent to deliver vacant possession of the shop in question to the petitioner within four months.