' IJAZ-UL-HASSAN KHAN, J.--- The above captioned appeal, by leave of the Court, arises from a judgment passed by a learned Single Judge of the High Court of Balochistan, Quetta dated 30-6- 2006 allowing F.A.O. No,4 of 2006 preferred by the respondent and setting aside the judgment of learned Rent Controller, Quetta dated 7-1-2006 with direction to the appellant to handover possession of the suit shop to respondent within two months.
2. Facts of the case, necessary for adjudication of instant appeal are, that Jaffar Khan respondent- herein, filed an application under section 13 of the Balochistan Rent Restriction Ordinance, 1959, before Civil Judge/Rent Controller, Quetta, seeking ejectment of Abdul Zahir appellant-herein, from the shop in question located in Khasra No,1225, situated in Mohal Khushkaba Kuchlak Mouza Tappa Khuchlak' on Kuchlak-Quetta Road, Quetta, on the grounds of default in payment of rent and personal bona fide, need. The application was resisted mainly on the ground that property in suit has already been transferred in his favour by virtue of purchase from one of the co-owner, in 2003 and the appellant has lost his title and has no right to claim possession of the property in suit. The divergent pleadings of the parties gave rise to the framing of as many as six issues, including the issue regarding existence of relationship of landlord and tenant between the parties. Upon consideration of the material available on record, learned Rent Controller, dismissed the application by judgment dated 7-1-2006 holding that the appellant has lost his entitlement and the petition is not maintainable. Feeling aggrieved, Jaffar Khan preferred appeal thereagainst. A learned Single Judge of the Balochistan High Court, Quetta, mainly placing reliance on the judgments of this Court, reported as Madrissa Darul Uloom Al-Baqiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court) and another PLD 1992 SC 401, Sakhawat Ali and another v. Mst. Shui Khelay PLD 1981 SC 454, Messrs Muhammad Ismail and Bros. v. Malik Muhammad Tahir and others 1981 SCMR 139 and Muhammad Anwer through his Legal Representative v. Abdul Shakoor 1982 SCMR 1120, accepted the appeal and set aside the judgment of learned Rent Controller, Quetta, as stated and mentioned above.
3. We have heard at length Mr. Naeem Akhtar, Advocate for the appellant and Messrs Khushnood Ahmed and Muhammad Qahir Shah, Advocate for the respondent. We have also gone through the available record with their able assistance.
4. Learned counsel for the appellant reiterated the arguments an which the leave to appeal was granted by this Court on 16-8-2006 and attempted to argue that a detailed and well reasoned judgment recorded by learned Rent Controller based upon correct appreciation of facts on record, has been reversed by learned High Court without any justifiable reason totally ignoring that appellant has purchased a substantial portion of suit property from one of the co-owners namely Ghulam Sarwar and thus has ceased to be a tenant under the respondent. In this regard, reliance was placed on Mst. Sanobar Sultan and others v. Obaidullah Khan and others PLD 2009 SC 71 and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani 1981 -SCMR 139.
5. Learned counsel for the respondent, on the contrary, while opposing the above contentions of learned counsel for the appellant, supported the impugned judgment on all counts maintaining that appellant was inducted in the shop in suit as tenant and his status continued to remain as such, unless he had surrendered the possession of premises to the original landlord. To supplement the contentions, reliance in this regard, was placed on Mst. Kalsoom Akhtar and 8 others v. Muhammad Yaqub PLD 1976 Kar.992, Muhammad Anwar through his Legal Representative v. Abdul Shakoor 1982 SCMR 1120, Messrs Muhammad Ismail and Bros. v. Malik Muhammad Tahir and others 1981 SCMR 139, Muhammad Akram v. Chaudhry Mushtaq Ahmed 1993 SCMR 1355, Muhammad Sadiq v. Allah Dad, Mst. Athar Jabeen and another v. Deputy Settlement Commissioner, Circle III, Lahore and another PLD 1993 Lah.842, 1996 SCMR 48, Muhammad Nazir v.
Saeed Subhani 2002 SCMR 1540, Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs, 2006 SCMR 1068, Said Rehntan and others v. Mst. Sardar Begum and others PLD 2008 SC 554 and Mst.
Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45.
6. In, order to resolve the controversy in its true perspective, leave granting order of this Court dated 16-8-2006 is reproduced hereinbelow:--- "Leave to appeal is granted, inter alia, to examine as to whether in view of the fact that the petitioner had purchased the share of one of the landlords, namely, Ghulam Haider son of Naik Muhammad (co-sharer in disputed property), therefore, the ejectment proceedings initiated against him by Jaffar Khan son of Ghulam Muhammad were not maintainable in view of the law laid down by this Court in the case of Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rahman and others 1992 SCMR 1352. Status qua be maintained subject to notice."
7. A perusal of the record would reveal that initially appellant Abdul Zahir was inducted in suit shop constructed on a portion of Khasra No,1225 as tenant. A rent deed (Exh.A/1) was executed to this effect. Truly, the property measuring 3 Rod 24 Poles was jointly owned by Ghulam Muhammad (father of respondent) and his brothers namely. Ghulam Haider and Ghulam Sarwar and others.
Subsequently, the appellant purchased the site underneath suit shop in consideration of Rs,1,750,000 vide mutation No,371 dated 24-8-2004 from one of the joint owners, Ghulam Sarwar. It also stands established from the record that total property owned by four brothers including father of respondent is, 3 Rod 24 Poles and appellant has purchased an area of 607 Sq. Feet from, one of its owners, setting up his own title as co-sharer. There is no treaty of tenancy in existence between the parties. The appellant has already purchased considerable portion of the property in question and thus has become joint owner thereof and the position existing previously has enormously changed. After purchase of land-in-dispute, the privity of landlord and tenant came to end and extinguished. It may be pertinently mentioned here that purchase of shop suit is not disputed, in B as much as, father of respondent has filed a suit to enforce his right of pre-emption in respect of it, which is pending adjudication.
8. Needless to add that a purchaser of a share out of a joint property having become a co-owner, his status as a tenant ceases arm 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 case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9, it has been held:--- "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 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 transferor 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."
9. In case of Muhammad Nawaz v. Sh. Abdul Latif 1971 SCMR 198, where a godown was jointly owned by four persons and one of them sold his share to an outsider, it was held:-- "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..."
10. It may be pertinently pointed out here that before institution of above eviction application, respondent got issued a notice dated 20-8-2003 on the averments that shop was constructed over a portion of Khasra Nos.707, 711 to 716, jointly owned by Ghulam Haider, Ghulam Sarwar and Ghulam Muhammad. It was followed by institution of ejectment proceedings, which plaint was rejected for want of jurisdiction, vide order dated 25-8-2004.
11. Adverting to the case-law referred by learned counsel for the parties in support of their respective stances, we are of the view that the case-law cited on behalf of the appellant deals with the controversy involved whereas the case-law relied upon by learned counsel for the respondent, is distinguishable and proceeds on different facts.
12. In view of the above, we are constrained to hold that the material on record has not been appreciated in its true perspective, resulting in complete failure of justice. Resultantly, we accept the appeal, set aside the impugned judgment dated 30-6-2006 after setting aside the same and restore the judgment of learned Rent Controller, Quetta dated 7-1-2006. We make no order as to costs.