' CH. EJAZ YOUSAF, J.--- This petition for leave to appeal is directed against judgment, dated 8-6- 2007 passed by a learned Single Bench of the High Court of Balochistan, Quetta, whereby appeal filed by the petitioner against the respondents, regarding his eviction from the premises, was dismissed.
2. Facts of the case, in brief, are that respondents/landlords filed eviction application in the Court of Civil Judge/Rent Controller in respect of Shop bearing No,1-27/13 and 14-A situated at Masjid Road, Quetta, jointly owned by Syed Muhammad Amin (predecessor-in-interest of the respondents) and one Syed Abdul Qayyum, against the petitioner and one Mir Ahmed Tareen. It was stated in the application that after the death of the predecessor-in-interest of the respondents, property in question was partitioned between the co-owners, and the disputed property fell into the share of the respondents. Mutation Entry No,503 was also effected in this regard. It was further stated, that rent of the premises was Rs,500 per month which was paid by the petitioner/tenant till June, 2001 and thereafter it was deposited, in Court, in the name of Syed Abdul Qayyum. It was alleged in the application that the shop in question was required by the predecessor-in-interest of the respondents for his own use and occupation. It was also case of the landlord, in the application, that shop in question was unauthorisedly partitioned by the petitioner without consent/permission of the respondents and a portion thereof i,e, the Khokha was let out to Mir Ahmed. Tareen, the respondent No,2 in the eviction application.
3. Rejoinder to the application was filed by the petitioner wherein, inter alia, various legal and factual objections, i,e, that no shop with the combined number of Municipal No,1-27/13 and 14-A, as stated in the application, was in existence; that the Revenue Record produced did not pertain to the disputed shop; and that no notice in pursuance of the partition as required under section 13-A of the Ordinance was served.
4. On the pleading of the parties, initially two issues regarding existence of relationship of landlord and tenant between the parties; and the relief, were framed, yet, subsequently as F.A.O. No,37 of 2005 was filed before the High Court, another issue, "as to whether the property in question was required by the applicants (i,e, the respondents) for their personal bona fide use and occupation?" was also framed in pursuance of consent order, dated 19-8-2005 and parties were directed to lead evidence thereon. The respondents/landlords in order to prove their case, produced five witnesses, whereas three witnesses were examined by the petitioner/tenant. After assessing the evidence, the learned Rent Controller, vide order, dated 25-2-2006, allowed the eviction application thereby directing the petitioner to hand over vacant possession of the shop in question to the respondents/landlords. Being aggrieved, the petitioner approached the High Court by way of F.A.O.
No,11 of 2006, which was dismissed vide the impugned judgment, hence this petition.
5. It has been contended by Mr. Abdur Rashid Awan, learned counsel for the petitioner that the findings of both the courts below on the issue of relationship of landlord and tenant are based on misreading and non-reading of material evidence inasmuch as the property in question originally belonged to Syed Abdul Qayyum, on whose behalf it was occupied by the petitioner as tenant and respondents being sons of Muhammad Amin were alien and strangers and therefore, had no locus standi to file the eviction application; that ejectment application was filed in respect of the property transferred to the respondents through Mutation No,503, i,e, Exh.A./I, which was altogether a different property, hence findings of both the courts below that the respondents were owners of the property in question is contrary to the record; that as per record furnished by Patwari before the Rent Controller, since it was clarified that property bearing Municipal No,1-27/13 and 1-27/14-A was situated in Ward No,35, at Masjid Road, whereas the property, subject-matter of Mutation No,503 bearing Khasra Nos.38, 39, 40 and 41, was situated at Jinnah Road/Shahrah-e-Iqbal, therefore, the property in question being a distinct property, the eviction application was not maintainable. It would be pertinent to mention here that Mir Ahmad Tareen was impleaded in the eviction application but did not appear and thus, was proceeded ex parte.
6. Mr. Tariq Mehmood, learned Advocate Supreme Court appearing for the respondents/landlords, on the other hand, while vehemently controverting the contentions raised by the learned counsel for the petitioner, has submitted; that the disputed property along with other properties was jointly owned by Syed Abdul Qayyum and Syed Muhammad Amin and after the demise of Syed Muhammad Amin, father of the respondents, and as a result of partition, the property fell into the share of the respondents that the rent was admittedly received by the co-owners; that the transfer was carried out in favour of the respondents vide Mutation Entry No,503; that the property was originally let out to the petitioner by Syed Abdul Qayyum, uncle of the respondents on his behalf as well as co-owner, namely, Muhammad Amin, predecessor-ininterest of the applicants, against a monthly rental of Rs,500 per month, which was paid upto June, 2001, but thereafter, the petitioner committed default. Since the rent was not paid to the respondents and the property was also required by the landlords for their personal use and occupation, therefore, the eviction application was filed. Learned counsel clarified that since after taking the property in question on rent, the petitioner had unauthorisedly converted a portion of the shop in question into a Khokha and let the same out to one Mir Ahmed Tareen, without the consent of the landlord, and on objection, it was stated by the petitioner that it was not rented out to the occupant who was statedly related to the petitioner and he i,e, the petitioner had ensured that it was his responsibility to vacate the Khokha along with the shop in question whenever demanded, therefore, Syed Abdul Qayyum, kept quiet.
Learned counsel has stated that both the courts below have found that the respondents were owners and landlord of the premises in question and it was required by them for their personal bona fide need and occupation and the petitioner was their tenant; therefore, the eviction application was rightly allowed.
7. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, minutely, with their assistance.
8. Admittedly, the property in question along with other properties was jointly, owned by Syed Abdul Qayyum and Syed Muhammad Amin, predecessor-in-interest of the respondents. It is case of the petitioner that shop in question was let out to him by Syed Abdul Qayyum who used to receive rent from him against issuance of receipts. His case, before the Rent Controller was that since no notice as required under section .13-A of the Rent Restriction Ordinance, regarding change of ownership after partition of the property, was served on him, therefore, he was not obliged to pay rent to the respondents and that since no property with the Municipal No,1-27/13 and 1-27/14-A was in existence, therefore the application on that account, too, .Was not maintainable. However, both the Courts below have found that the properties in question, having been validly transferred to the respondents as a result of domestic partition, vide Mutation No,503, they were owners and thus, landlords of the premises and as such were competent to file the eviction application and the petitioner/tenant had neither any occasion nor justification to dispute their title as well as. Status as landlords. The issue regarding personal requirement was also decided in favour of the respondents. Since findings of both the Courts below on the above issues are well-founded and are based on evidence therefore, we see no reason as to why the same may be interfered with.
9. As regards the contention that since Property bearing Municipal Nos.1-27/13 and 1-27/14-A, as per report furnished by the Patwari, is situated in Ward No,35, at Masjid Road, and Property bearing Khasras Nos.38, 39, 40 and 41 acquired by the respondents through Mutation No,503, is situated in Ward No,18 and thus, are two different properties, is concerned, though the learned counsel for the petitioner has tried to canvass that since both these properties were situated in different wards, therefore, being distinct and separate, the eviction application was not maintainable, yet, we are afraid that the argument advanced by the learned counsel in this regard cannot prevail for the simple reason that a similar objection was Laken before the Rent Controller and it was repelled in the following words:- "... It is worth-mentioning here that there was controversy between the parties on the location of subject-matter during trial. The applicants mentioned the subject-matter in their eviction application that the shop bearing Municipal No,1-27/13 and 14-A situated at Masjid Road, Quetta vide Mutation Entry No,503. On the other hand the respondent stated in his rejoinder that the shop under tenancy with respondent No,1 bears Municipal No,1-27/13 only whereas the Municipal No,1- 127/14-A pertains to a Khokha is in occupation of respondent No,2. The respondent No,1 is not in occupation of anyone shop bearing Municipal No,1-27/14-A. In fact the Mutation Entry No,503 does not pertain to shop in occupation of respondent No,1 rather the same pertains to four shops situated at Shahrah-e-Iqbal and on the corner of Shahrah-e-Iqbal and Jinnah Road, Quetta in Ward No,18 whereas shop occupied by respondent N.1 is situated at Masjid Road in Ward No,35.
Therefore, the applicants are not legal and lawful owner of the disputed shop. Thus, in absence of relationship of landlord and tenant between the parties the present application is not maintainable.
' I perused the case file with due care and caution and found the document i,e, Exh.A.5, which Fard Intikhab contains the name of applicants as owner of the land bearing Khasra No,547, measuring 1774 sq.Ft. Situated at Ward No,35 Quetta so the same was tallied with agreement filed by respondent Exh.R.3, the relevant portion of the same agreement is reproduced here:- "Whereas the 1st party is the lawful owner of a hotel bearing Municipal No,1-27/13, bearing Khasra No,547, measuring 1774 sq.Ft. Situated at Masjid Road, Quetta.
' Both cited documents cleared the situation about the subject-matter that a hotel which bearing Municipal No,1-27/13 was constructed on land bearing Khasra No,547, 1774 sq.Ft. Situated at Masjid Road, Quetta, which his been entered in the name of applicants in the Revenue Record. However, there found a clerical mistake in respect of ward and mutation No, in their eviction application. As far as question of ownership is concerned it is cleared from cited documents that the disputed hotel is on the name of applicants in the Revenue Record. Furthermore the record and evidence adduced by both the parties revealed that the disputed property has been partitioned in between the parties. On the basis of said partition the disputed premises has been entered in the name of applicants in the Revenue Record; which has not been challenged by legal heirs of Syed Abdul Qayyum rather they admitted the ownership of applicants A.W.IV Syed Faqir Shah son of Syed Abdul Qayyum appeared before the Court as a witness, who categorically stated that partition has been made in between his father and Syed Muhammad Amin, according to that partition the applicants are the owner of the disputed property. He also deposed that he along with applicant went to respondent and informed him about changing of ownership of the disputed property and was also directed to pay further rent to applicants.
' The nutshell of the above discussion, is that the predecessor-ininterest of applicant and A.W.4 were joint owner of the disputed property and thereafter, being joint owner of the disputed shop the applicant too can move eviction application against the tenant."
' Thus, it is clear that the property in question forms part of the property originally owned jointly by Syed Abdul Qayyum and Syed Muhammad Amin, predecessor-in-interest of the respondents and it was immaterial as to whether any portion or whole of the property was situated in Ward No,35 at Masjid Road, Quetta or not. Since it has come on record that the property in question is situated at the crossing of Masjid Road and the Jinnah Road/Shahrah-e-Iqbal, therefore, there is no discrepancy, regarding its location, and the statement of the Patwari is in consonance with the stand taken by the respondents. It may be mentioned here that since a Khokha occupied by Mir Ahmad Tareen as per contents of the eviction application was allegedly constructed on the property in question, therefore, the possibility that the Municipal No,1-27/14-A, pertains to the same cannot be ruled out. Be that as it may, the petitioner cannot take advantage of the position and frustrate , the eviction A proceedings on the pretext that there is discrepancy regarding Municipal number of the shop in question, because it is quite clear that the property in question is the same property which was let to him on rent by Syed Abdul Qayyum, co-owner of the property particularly when none else has claimed ownership/proprietary rights over the same.
10. Upshot of the above discussion is that there being concurrent findings of both the Courts below, we see no ground to interfere with the impugned judgment in exercise of the constitutional jurisdiction of this Court, therefore, this petition being misconceived, is hereby dismissed and leave is refused. Four months time is allowed to the petitioner to vacant the premises.