' This is an appeal against an order of Mr. Muhammad Zaman Khan, Additional District Judge, Faisalabad, dated 17th December, 1977, by which he dismissed the appellant's appeal against an order of their eviction from Property No, P-54/1 279 Ghalla Mandi, Gojra.
2. The facts are that this shop was in possession of Muhammad Younis as a tenant of respondents Nos. 1 and 2 since 1962. Muhammad Younis died in the year 1968. Thereafter, respondent No, 3, one of his sons executed rent note in favour of respondents Nos. 1 and 2. It appears from the evidence that respondent No, 3 and his brother Mubashir Illahi had been carrying on their business in these premises till 1972 when Ghazanfar Ail severed his connection with the shop and thereafter Mubashir Illahi continued his business in the name of 'Shaheen Oil Traders' which consists of two partners, namely, Mubashir Illahi and Abdul Latif. Respondents Nos. 1 and 2 began to make efforts that Ghazanfar Ali may give him the possession of the shop to them. The matter was referred to Anjuman Arhtian, Ghalla Mandi, to prevail upon him to vacate these premises. But these efforts failed. Ultimately, on the 2nd July, 1975, respondents Nos. 1 and 2 filed an application for ejectment of Ghazanfar Ali respondent No, 3 on grounds of default sub-letting of the property to the appellants who were impleaded as respondent No, 2, causing damage to the property with a view to impair its value and requirement of the shop for their personal use. This application was contested by both the respondents. The learned Rent Controller decided the issue of default against respondents No, 1 and 2 but decided the other issues of sub-letting, cause damage to the property and requirement of the shop for personal, use in their favour with the result that he directed their eviction by order dated 31st July, 1977. This order was maintained in appeal by the learned Additional District Judge.
' The learned counsel for the appellant argued that learned Additional District Judge had not taken into consideration the fact that while respondent No, 3 was a tenant on payment of Rs, 160 per month as rent the appellants were paying Rs, 200 per month (vide receipts Exhs. R/2-22) this was sufficient proof of their fact that had appellants had directly become tenants under respondents Nos. I and 2. He referred to the partnership deed Exh. R. 24 between Mubashir Illahi and Abdul Aziz which was executed in September. 1972, and submitted that from that very time the appellants had been carrying on their business in this shop. Consequently, the plea of respondents Nos. 1 and 2 that Ghazanfar Ali had given possession of the shop to the appellants in the year 1975 was totally false.
4. He further submitted that the oil tank on the basis of which it was held that the appellants and Ghazanfar Ali had caused damage to the shop with a view to impair its value, was not a new construction. It was constructed in the year 1962 by the father of Ghazanfar Ali and Mubashir Illahi and he was also carrying on oil business in the shop.
5. As regards the personal requirement, his arguments were that the case of Sardar All Shah, respondent No, 1 was that he would start his business after his retirement from service but even now he is in service. His application on the basis of personal requirement was premature.
Regarding Imdad Ali Shah he submitted that he is 70 years old and he is not interested in doing business. He is interested only in the enhancement of the rent.
6. The learned counsel for the respondents who was called upon to satisfy me on the question of subletting, conceded on a query put by me that there is no oral evidence that any rent was paid by the appellants to respondent No,
3. I have also gone through the record. I find that this concession is correct. In the circumstances of the case, no inference of sub-tenancy can be drawn against the appellants unless it is specifically proved that they are paying or liable to pay any rent for the shop to Ghazanfar Ali. I have already stated, that it appears from the record that Ghazanfar Ali and Mubashir Illahi had been carrying on their, business upto the year 1972. It appears that from that time Ghazanfar Ali severed his connection with the shop and started his business elsewhere.
Mubashir Illahi remained carrying on his business but now he is carrying on that business in partnership with Abdul Aziz in the name of Shaheen Oil Traders'. In these circumstances, when the shop was in possession of one of the brothers of Mubashir Illahi and this brother had also been carrying on business, no inference can be drawn that Ghazanfar Ali had given the shop to his brother on rent or had sublet it. The finding on Issue No, 1 cannot be legally sustained. It is, therefore, set aside.
7. On the other issue about causing damage even though it is conceded for the sake of argument that the oil tank was constructed as far back as 1962, there appears to be no documentary evidence that it was done with the permission of the respondent. But there is evidence of A. W. 5 about the condition of the oil tank and the way that the property has suffered damage on account of that tank. There is no rebuttal of the statement of the condition of the oil tank and the damage resulting therefrom. The finding of fact on Issue No, 3 cannot, therefore, be varied.
8. As regards the bona fide personal need even if Sardar Ali is excluded from the contest there is sufficient evidence that Imdad Ali required the shop for his personal use. He had been carrying on similar business before 1962 and wants to revert to that business now. It is also in evidence that no other shop is in his possession in Gorja. In these circumstances, the finding of fact arrived at by the learned Additional District Judge is unexceptionable.
' The appellants will be bound by this finding and the order of eviction will be effective against them in either case whether they are held to be in possession of the property with the permission of Ghazanfar Ali respondent No, 3 or in their own rights. If they are in possession with the permission of Ghazanfar Ali, though they may not be sub-tenants, they can be ejected in execution of the decree.
But assuming that they have their own independent right and are tenants of respondents Nos. 1 and 2, that will hardly make any difference since they have been given full opportunity of being heard in respect of the allegations which are the subject-matter of Issues Nos. 4 and 5.
9. 1, therefore, dismiss this appeal but since the appellants have succeeded on at least one of the issues, I leave the parties to bear their own costs. The appellants are allowed time till the 19th May, 1979, to vacate the shop,