On 19.9.1987 Ata Muhammad Qureshi, the predecessor-in-interest of the respondents, filed an application for the ejectment of the appellants from a shop, described in para-1 of the application and located in Gujranwala urban area. It was stated that the Appellant No, 1 is a tenant under rent agreement dated 8.11.1971 subject to payment of Rs,400/- per month as a rent. The tenancy commenced on 1.11.1971. The rent was enhanced from time to time and ultimately it was fixed at Rs, 1100/- per month in the year 1984. The ejectment was sought on the grounds of default in the payment of rent at the said rate w,e,f, February, 1987 and unauthorized sub-letting of the shop to Appellants No-. 2 and 3. He served a notice on 9.4.1987 upon the said appellants. In response, a plea was taken that Sardar Muhammad the father of the Appellants No, 2 and 3 was the tenant and on his death the Appellants No, 2 and 3 are tenant. The bona fide personal requirement of Alamgir Akhtar, a son of the said landlord, was also pleaded. The appellants filed a written statement. It was stated that the Appellant No, 1 has nothing to do with the shop rather he is in possession of another shop of the deceased landlord as a tenant and an application for his ejectment has also been filed. According to them, their father Haji Sardar Muhammad was inducted as a tenant under an oral arrangement subject to payment of rent at the rate of Rs,400/- per month and that all the appellants are in possession as sons of the said deceased Haji Sardar Muhammad. The enhancement in the rate of rent was also admitted but it was stated that the same was procured under threat of ejectment. Regarding default it was stated that the rent stands 'paid at the rate of Rs,1100/- per month till 30.9.19897 and thereafter the rent is being deposited in Court. The plea of personal requirement for the son was denied with the allegation that the real purpose into enhance the rent and to receive Pagri. Issues were framed. Evidence of the parties was recorded. The ejectment application was dismissed by the learned rent Controller on 12.5.1990.
An appeal filed by the late landlord was heard by a learned ADJ, Gujranwala, who proceeded to strike off the defence of the appellant and to pass an ejectment order against them on 11.2.1991. The writ petition filed in this Court was dismissed. However, the Hon'ble Supreme Court remanded back the case for decision of the appeal afresh. A learned ADJ, Gujranwala, dismissed the first appeal on 19.3.1996. The appellants filed an SAO in this Court, which was heard alongwith SAO No, 183/96. Vide Judgment dated 15.4.2004 all the SAOs were allowed and the matter was remanded to the learned Rent Controller for a fresh decision. I deem it appropriate to reproduce hereunder the relevant para-3 of the said judgment:-- "3. I have examined the available record of these SAOs with the assistance of learned counsel for the parties. I too find that the matter has been dealt with in rather a slip shod manner by the learned Addl. District Judge and further that the effect of the events being reported by the learned counsel for the respondents has to be determined. All these SAOs are accordingly, allowed. The impugned orders of the learned Court of appeal as also of the learned Rent Controller in all these cases are set aside. The result would be that the ejectment petitions shall be deemed to be pending before the learned Senior Civil Judge/learned Rent Controller, Gujranwala whereby parties shall appear on 17.5.2004. The learned Rent Controller shall in the first instance take on record the evidence being sought to be produced by the respondents in the form of certified copies of the sale-deeds regarding the shops owned by the deceased/landlord and thereafter shall give a further chance to both the parties to lead such further evidence as they wish to produce and after doing the needful to decided all these petitions afresh in the light of the entire evidence on record.
This exercise be undertaken and completed preferably on or before 30-9-2004."
After this remand the learned Rent Controller recorded some evidence. He found that the default in payment of rent has not been proved. The allegation of sub-letting also found unproved. However, Issue No, 4 pertaining to the personal requirement of Alamgir Akhtar, the son of the deceased landlord, was answered in affirmative and an ejectment order was passed on 18.4.2006. First, appeal filed by the appellants has been dismissed by a learned ADJ, Gujranwala, on 24.6.2006 up- holding the said findings of the learned Rent Controller.
2. Ch. Khurshid Ahmad, Advocate/learned counsel for the appellants contends that although the requirement of Alamgir Akhtar, the son of the deceased landlord, was pleaded but after the remand, he did not put in appearance rather Jehangir Akhtar appeared as AW-1 and did not state anything about the personal requirement of Alamgir Akhtar. He refers to the documents Exs. R.10 and R. 11 to contend that no explanation has been given in respect of the shops sold out by the late landlord during the pendency of the ejectment petition and in the absence of any such explanation the issue of personal requirement was bound to be answered against the respondents.
Relies on the cases of Allies Book Corporation through L.Rs, u. Sultan Ahmad and others (2006 SCM R 152), Muhammad Inayat u. Saleh Muhammad (PLJ 2001 SC 217) and Muhammad Shafi v.
Shahid Nadeem and 5 others (1999 CLC 1273) and Ghulam Haider v. Abdul Ghaffar and another (1992 SCM R 1303). Mr. Ahmad Waheed Khan, Advocate/learned counsel for the respondents, on the other hand, contends that the said witness was produced only for purposes of the matters to be considered in the light of the remand order passed by this Court on 15.4.2004 in SAO No, 183/96. He draws my attention to the examination-in-chief of the said witness in the form of affidavit (Ex.AW- 6/1) where he had relied upon the evidence already recorded. Consequently, he refers to the earlier evidence to demonstrate that Ata. Muhammad the deceased landlord appeared as AW-5 while Alamgir Akhtar (the relevant son) appeared as AW-4. Regarding the said second contention of Ch. Khurshid Ahmad, Advocate, he argued that in the absence of any evidence that late landlord or Alamgir Akhtar was ever in possession of any shop belonging to them, the contention merits no consideration.
3. I have gone through the records, with the assistance of the learned counsel for the parties. The respective pleadings on record and somewhat chequered history of the case have already been stated above. Only the matter of personal requirement vis-a-vis the said remand order if this Court have been agitated in this SAO. The shop was stated to be required by the son of the deceased landlord, namely, Alamgir -Akhtar. He appeared as AW-3 on 10.7.1989. He is stated to be aged 24 that point. He stated that he gave up his studies in the year 1984 and started looking for a job but could, not get one. He wants to sell cloth but has no shop in his possession. Neither he has vacated any shop. His father has six shops and all of them stand rented out and that he needs the shop in question for the said business. Not a single suggestion was given to this witness' that he is doing some business or that he is in possession of a shop in the same urban area. The deceased landlord Ata Muhammad Qureshi appeared as AW-5 and stated that he needs it for the personal use of Alamgir Akhtar his son because he is doing nothing. To this witness as well no suggestion was given that the landlord or his said son is in possession of a shop in the said urban area.
Muhammad Fayyaz appellant appeared as RW-5 and simply stated in examination-in-chief that the shop is not required for the son of the landlord and that the purpose is to enhance the rent. It will be seen that there is not even an allegation in the entire record that the landlord or the said son of the landlord were in possession of any shop in the same urban area.
4. The evidence of the appellants was recorded on 8.5.1990. After the remand, Jehangir Akhtar appeared as AW-1. His examination-in-chief is Ex.AW-1 (affidavit). He stated that the evidence regarding personal requirement has already been led. His statement was recorded on 20.3.2006 and to him also no suggestion was given that Alamgir Akhtar was in possession of any shop in the same urban area.
5. So far as the said other contention of Ch. Khurshid Ahmad, Advocate, is concerned, Ex. R.10 is a sale deed dated 2.12.1999 whereby Ata Muhammad Qureshi sold a shop to Shakeel Pasha, Liaqat Ali and Muhammad Iqbal. Ex.R.11 is a sale deed dated 2.12.1999 by Mst. Sanoober Gul daughter of Ata Muhammad Qureshi whereby she sold 42 Square Feet area in property No, BIII-2S-27 to Shamas Shahzad. There is no material whatsoever on record that the deceased landlord or the said son of the landlord was in possession of any of the properties sold through the said documents. The law on the subject was laid down by the Hon'ble Supreme Court of Pakistan in the case of Abdul Aziz and another v. Muhammad Ibrahim (PLD 1977 SC 442). It was held by their lordships that the landlord is required to explain his possession over a building, which is owned as well as possessed by him. This being so, the landlord was not at all required to explain the said sale made by him or his daughter in the absence of even an allegation that he or his said son was in possession of the building sold.
6. Having, thus, examined the records, I do not find any question of law arising in this SAO and further no grounds stand made out for interference with the impugned ejectment order. The SAO is accordingly dismissed. However, the appellants are directed to hand over vacant possession of the shop in question on or before 30.11.2008. No orders as to costs.
7. The records of the learned lower Courts be remitted back immediately.