' IJAZ-UL-HASSAN KHAN, J.---Leave to appeal is sought against the judgment of the Peshawar High Court, Peshawar, dated 30-5-2006, whereby Writ Petition No,1069 of 1998 filed by Obaiduallah Khan, respondent No,1, assailing the judgments/orders of the Courts below i,e, Rent Controller and Additional District Judge, Peshawar, dated 6-3-1997 and 4-7-1998, respectively, has been accepted.
2. Facts relevant for the decision of instant petition are, that Mst. Sanober Sultan and her two sisters, Mst. Iqbal Bano and Mst. Razia Bano, petitioners, moved a petition before the Rent controller, Peshawar, seeking ejectment of Obaidullah Khan and Gulzar Muhammad, respondents, from suit premises on the ground of default in payment of rent personal bona fide need and subletting. One of the respondents, Obaidullah, appeared in Court and resisted the petition, taking the plea that having purchased share of Amanullah and Rehmatullah, brothers of the petitioners, he had become co-sharer in suit property and ceased to be a tenant under the petitioners. After settlement of necessary issues and recording such evidence as the parties wished to adduce in support of their respective stances, learned Rent Controller, dismissed the petition vide order dated 17-11-1992. On appeal, the case was remanded for fresh decision after reframing issues and recording fresh evidence. On remand, the parties did not lead fresh evidence and relied upon the evidence on record. Resultantly, learned trial Court accepted the ejectment petition, vide order dated 15-6-1994 and directed the respondents to hand over vacant possession of the suit premises to the petitioners within two months. An appeal was preferred thereagainst before learned District Judge, Peshawar, which was accepted and the case was remanded to trial Court to implement the first remand order and decide the case afresh. The parties were permitted to produce fresh evidence. Petitioners relied on the evidence already recorded while respondent examined Ikhlaq Hussain, Registration Moharrir N.T.PDA, and Ali Akbar, Deed Writer. Learned Rent Controller decided all issues including additional issues in favour of petitioners and allowed the ejectment petition on 6-3-1997. The respondents were given two months' time to vacate the premises in question. On appeal, learned Additional District Judge, Peshawar, upheld the said findings vide judgment dated 4-7-1998. Feeling dissatisfied, respondent No,1, filed writ petition in the Peshawar High Court, Peshawar, which was accepted and concurrent findings of the Courts below were set aside, per the judgment impugned herein.
3. Mr. Muhammad Essa Khan, Advocate for the petitioners, attempted to argue that judgment of learned High Court, on the face of it, is against law and fact, hence unsustainable, that learned High Court has not properly appreciated the preliminary decree dated 31-10-1993 passed in favour of the petitioners, confirming the ownership and title of the petitioner; that para.7 of the ejectment petition has not been taken into consideration and that merits of the case have not been discussed and matter has been dealt with in a cursory manner, resulting in complete failure of justice. To substantiate the contentions, reliance was placed on Nazir Ahmad v. Mst. Sardar Bibi 1989 SCM R 913; Syed Izhrul Hassan Rizvi v. Mian Abdul Rehman and others 1992 SCM R 1352.
4. Mr. Abdul Sattar Khan, Advocate representing the respondents, controverted the arguments of learned counsel for the petitioners and supported the impugned judgment more or less on the same grounds incorporated in the judgment itself. To supplement the arguments, he placed reliance on Muhammad Hanif v. Mst. Ahmadi Begum and others 1996 CLC 137; Muhammad Mazaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Muhammad Nawaz v. Sh. Abdul Latif 1971 SCM R 198; Allah Yar v. Additional District Judge 1984 SCM R 741; Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC; Mir Salahuddin v. Qazi Zaheerud Din PLD 1988 SC 221 and Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242.
5. It stands established from the material on record that Obaidullah, respondent, purchased the share in the property in suit from the brothers of the petitioners and became co-owner in the property and thus ceased to be a tenant under the petitioners. The submission of learned counsel for the petitioners that tenant cannot deny the relationship despite the purchase of property from one of the owners, is not sustainable. A purchaser of a share out of a joint property having become a co-owner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord. A co-sharer is entitled to retain the possession of the joint property till partition and cannot be ejected in execution of the ejectment order which cannot be passed by learned Rent Controller under the provisions of Urban Rent Restriction Ordinance. In case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9, it has been held as under:- - "The vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transfer or qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitled the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner in an undivided khata, does not become a co-sharer in that Khata."
' In case of Muhammad Nawaz v. Sh. Abdul Latif 1971 SCM R 198, where a godown was jointly owned by four persons and one of them sold his share to an outsider and the godown was in possession of M as tenant who had sublet the same in favour of R who was a brother of L who had purchased the share referred to above and an ejectment was obtained by the three co-owners which was resisted to by the purchaser of a share in the said go down on the ground that the godown was occupied by his brother as his tenant and therefore, the order of ejectment cannot be executed inasmuch as the ejectment of R will in fact be the ejectment of a co-sharer. Their Lordships have held at page 199 of the report as under:-- ' In law, a co-share in possession of a joint property cannot be evicted without filing a suit for partition. In these circumstances, the High Court was perfectly justified in observing that the Courts below have failed to exercise the discretion vested in them...."
' In case of Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9, where a dispute arose as to whether a co-owner who is in possession of the property in excess of his share and who is recorded as a tenant of excess could be ejected from the premises under the provisions of the Urban Rent Restriction Ordinance, 1959. The answer has been rendered in negative and it has been held at page 14 of the report as under:-- "Relying on Muhammad Abdullah v. Abdul Jabbar, it is submitted by the learned counsel for the respondent that the status of the appellant is to be determined by the true nature of his tenure as a person who has inherited the property under the Muslim Law and not by the extraneous factors of paying rent to another co-owner or to the receiver, or the fact that the commissioner appointed in the partition suit determined the rental value of the portion of the property occupied by the appellant.
' We are inclined to agree with this submission. We think that the High Court has rightly observed that on the death of a Muslim intestate his estate devolves upon his heirs who succeed to it in specific undivided shares in proportion to their inheritance, and each heir becomes the owner of a definite fraction of every part of the estate until partition takes place. A co-owner does not, therefore, become a tenant of the other owners, simply by being in possession of property in excess of his own share, and he would, therefore, be liable to pay compensation to the other co- owners for the excess occupied by him. In this view of the matter he does not become a tenant, and no question would arise of taking proceedings against him under the Rent Restriction Ordinance. In this position as co-owner and judgment-debtor, he is liable to be dealt with under rule 95 of Order XXI."
6. The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. The petition does not involve any substantial question of law of public importance.
Learned counsel for the petitioner has miserably failed to persuade this Court to interfere with the same.
7. The petition being devoid of merit, is dismissed and leave refused.