' ABDUL RASOOL MEMON, J.---The petitioners being aggrieved and dissatisfied with the judgment dated 9-3-2012, passed by the learned III-Additional District Judge, Karachi (East), whereby the First Rent Appeal No.151 of 2011 filed by Abdullah Khan, the predecessor-in-interest of Muhammad Ashfaq Khan, Muhammad Altaf Khan, Muhammad Irshad Khan, Muhammad Rizwan Khan, Muhammad Irfan Khan, Nahid Bano, Nasreen Bano and Imran Khan was allowed and the order dated 27-5-2011, passed by IInd Rent Controller Karachi East in Rent Case No.17 of 2010, was set aside and reversed.
2. The facts of the case, in brief, are that respondent No.1 was owner of Shop No.C-194/A, admeasuring 17.77 Sq. Yards, situated in Liaquat. Market, Malir Colony, Karachi, by virtue of lease granted by the K.D.A. And he started business thereon. Later on divided it into two parts, one of which smaller was given on rent basis to the father of the petitioners measuring an area of 6 X 10 Sq. Ft. (the demised premises). It was the case of the respondent No.1 that the demised premises was required in good faith for his as well as his five children's personal bona fide need, who were married and jobless. The predecessor-in-interest of the petitioners promised to vacate the demised premises, but after his death the petitioners flatly refused to obey or comply with the promise of their father, on the contrary, they in the month of December, 2009, malafidely, illegally and without knowledge and written. Permission of the respondents/owner demolished one wall/pillar of the shop dividing adjacent shop, which has been leased out to one Habib Soonar and the same was also obtained on rent by the petitioners, thus an impression was created that both the said shops were one and same, which impaired the value of the demised premises. It was also alleged that the petitioners have committed default in payment of rent since December, 2008. The ejectment application 'was filed by Abdullah, who died during pendency of the ejectment proceedings, as, such his legal heirs were brought on record.
3. The petitioners, who were opponents in the ejectment proceedings, filed their joint objections/reply statement, wherein they denied the allegations levelled against them in the said ejectment application.. However, they admitted to have obtained demised premises by their father on Pagri and its monthly 'rent was Rs.200 in 1970 and later on enhanced to Rs.500, by the predecessor-in-interest of the respondents. They have denied personal bonafide need of demised premises by respondent No.1 or his children and defaul in payment of rent.
4. Both the parties adduced their evidence through affidavit-in-evidence. The trial Court dismissed the ejectment application vide order dated 27-5-2011, which was set aside in F.R.A. No.151/2011 by the IIIrd Additional District Judge, Karachi (East), vide impugned judgment dated .9-3-2012, whereby reversed the finding on the point of personal bona fide need of the' demised premises, which has been challenged through instant petition.
5. During the pendency of this petition, legal heirs of respondent No.1, namely, Muhammad Ashfaq Khan, Muhammad Altaf Khan, Muhammad Irshad Khan, Muhammad Rizwan Khan, Muhammad Irfan Khan, Nahid Bano and Nasreen Bano filed their statement on oath, stating therein that they are eight owners/ sharers of the demised premises after the death of their father Abdullah and out of them they have sold out their respective shares in the demised premises to the petitioner Mahfooz Hussain through sale agreement dated 18-7-2012 for a total safe consideration of Rs.45,00,000, out of which they have received an amount of Rs.32,50,000 from petitioner through cheque as well as cash, therefore, under these changed circumstances in the light of sale agreement they do not press the ejectment order, dated 9-3-2012, passed in F.R.A. No.151 of 2011, as the petitioner now become the bona fide purchaser of the demised premises and thus the tenancy .In respect of the demised premises has been ceased. They, also revoked the power of attorney executed by them in favour of respondent Imran Khan and engaged Mr. S. M. Haider, Advocate as their counsel to represent their case before this Court.
6. I have heard the leaned counsel for the petitioners, learned counsel for respondents Nos.1 (1 to 7) as well as respondent No.1(8).
7., The learned counsel for the petitioners has argued that as the petitioner Mehfooz Hussain has purchased the Aare of 1 to 7 legal heirs of respondent No.1 in the joint property i.e. Demised premises, therefore, he has become a co-owner, ceased his status as tenant and his possession over the demised premises has become that of co-owner falling within the definition of landlord, while co-sharer is always entitled to retain the possession of the joint property till partition and cannot be ejected. He has further contended that even otherwise on merits, . Too, the impugned order passed by the learned IIIrd Additional District Judge, Karachi East, is not sustainable for the reason that the original landlord Abdullah filed the ejectment application for his as well as his children's personal bona fide need of the demised premises, but did not specifically mention the name anyone of them. Per , learned counsel, 1 to 7, legal heirs of respondent No.1 have affirmed the transaction of sell with the petitioner Mehfooz Hussain and have not pressed the petition and even otherwise it has not brought on record that the legal heir of respondent No.1 Imran Khan, who has not entered into sell requires demised premises for personal bona fide need being exclusive owner of demised premises. On the contrary, the petitioner has brought on record the sufficient evidence that Imran Khan has failed to establish his personal bona fide need of demised premises. In support of his contention, he has placed reliance on the following cases:--
(1) Mst. KARIMA BIBI v. Mst. HAWA BAI (2003 C.L.R. 1965),
(2) REHAN AHMED v. NADRA ISRAR (PLD 2012 Sindh 203),
(3) MUHAMMAD WALI KHAN v. GUL SARWAR KHAN (PLD 2010 SUPREME COURT 965),
(4) HYDER ALI BHIMJI V. VITH ADDITIONAL DISTRICT JUDGE (2012 SCMR 254),
(5) JANA BAI V. GHULSHAN (1984 CLC 1061),
(6) ABDUL ZAHIR v. JAFFAR KHAN (2010 SCMR 189),
(7) SANOBAR SULTAN v. OBAIDULLAH KHAN (PLD 2009 SUPREME COURT 71), .
(8) ABDUL FAYYAZ KHAN v. IIIrd ADDITIONAL DISTRICT JUDGE (2012 CLC 793),
(9) NAVEED MERCHANT v. PAKISTAN' INSTITUTE OF INTERNATIONAL AFFAIRS (PLD 2012 SINDH 23),
(10) ABDE ALI v. HATIM BHAXI (2003 SCMR 730),
(11) MUHAMMAD ASGHAR v. ABDUL REHMAN (2010 MLD 665);
(12) MUHAMMAD IRFAN v. ABDUL GHANI (2010 YLR 2549),
(13) MUHAMMAD HAFEEZ v. DISTRICT JUDGE (2008 SCMR 398),
(14) AYESHA BAI v. ZAHID HUSSAIN (1999 MLD 2761),
(15) GHULAM MUHAMMAD KHAN v. MUHAMMAD KHALID (2000 CLC 764),
(16) NISAR HUSSAIN RIZVI v. AISHA (1998 CLC 349),
(17) ABDUL REHMAN v. PAKISTAN STATE OIL COMPANY Ltd. (1997 CLC 1085),
(18) MUHAMMAD MOOSA KHAWAJA v. MUHAMMAD UMAR (1995 MLD 1880),
(19) SHAMIM AKHTAR v. ZAKARIA YOUSUF (1998 CLC 410),
(20) SHAH ZAREEN KHAN v. SADA GUL (1998 MLD 903),
(21) JEHANGIR RUSTAM KAKALIA v. STATE BANK OF PAKISTAN (1992 SCMR 1296),
8. The learned counsel for legal heirs Nos.1 to 7 of respondent No.1 has supported the contentions of the counsel for the petitioners and has admitted that they sell of their shares in the joint property i.e. Demised premises to petitioner Mehfooz Hussain and conceded that he has now become co- owner. In support of his contention, learned counsel for the respondents Nos.1 (1 to 7) has placed reliance on the following cases:--
1. SANOBAR SULTAN v. OBAIDULLAH KHAN (PLD 2009 SUPREME COURT 71),
2. ABDUL ZAHIR v. JAFFAR KHAN (2010 SCMR 189).
9. Conversely, the learned counsel for Imran Khan, one of the legal heirs of respondent No.1 argued that neither the transaction under the circumstances is legal, nor any reference or reliance could be made on it in the ejectment proceedings. It is further contended that the Rent Controller has no power to decide the ownership of the parties, therefore, at this stage, the petitioner cannot be treated as co-owner of the demised premises. He further added that the requirement of the demised premises by respondent No.1(8) is genuine, as he is jobless and one of the co-owners of the joint property could file an ejectment proceedings when the demised premises is required by him for personal bona fide need and the petitioner has not denied his status as a tenant under rent agreement and such rent agreement cannot be challenged by the petitioners without first surrendering the possession of the demised premises to its owner. In support of his contention, learned counsel for the respondent No.1(8) has placed reliance on the following cases:--
(1) IMRAN AHMED v. NOOR AHMED (1992 SCMR 1152),
(2) SAIRA BAI v. ANISUR RAHMAN (1989 SCMR 1366),
(3) ALL KATHIAWAR MANSOORI GENL. JAMAIT v. PARVEZ AKHTAR (1982 CLC 1192),
(4) MUHAMMAD HANIF v. MUHAMMAD JAMIL TURK (2002 SCMR 429),
(5) MADRISSA DARUL ULOOM v. ADDL. DISTRICT JUDGE (PLD 1992 SUPREME COURT 401),
(6) BASHIR AHMED v. SHAH MUHAMMAD (2010 CLC 734),
(7) GHULAM QADIR v. PUNJAB COOPERATIVES BOARD FOR LIQUIDATION (2010 CLC 220),
(8) ABDUL RASHEED v. MAQBOOL AHMED (2011 .SCMR 320),
(9) JEHANGIR RUSTAM KAKALIA v. HASHWANI SALES SERVICES (Pvt.) Ltd. (2002 SCMR 241),
(10) N.T.C.C. v. TARIQ RAHIM (NLR 1991 CIVIL 366),
(11) SHAKEEL AHMED v. MUHAMMAD TARIQ FAROGH (2010 SCMR 1925),
(12) IRSHAD AHMED v. ALLAH DITTA (1998 SCMR 948).
10. I have given my careful consideration to the submissions made by the learned counsel for the parties and have gone through the case-laws as well as the record, whatever is available before me.
'11. A perusal of record would reveal that initially the father of petitioners was inducted as a tenant in demised premises by the respondent No.
1. It is also an admitted fact on record that during pendency of the ejectment proceedings, Abdullah, original owner/predecessor-in-interest of respondents No.1 (1 to 8), expired, consequently his legal heirs were joined in the case, who filed F.R.A. No.151 of 2011 before the learned IIIrd Additional District Judge, Karachi East. It is also an admitted fact on record that the respondents' predecessor-in-interest had filed ejectment application against the petitioner on the grounds of default in payment of monthly rent, alternation in the demised premises and thereby impairing the material value of the said premises and so also his personal bona fide need. The said ejectment application was dismissed by the Rent Controller and decided all the three points in favour of the petitioners, but in First Rent Appeal, the learned Appellate Court maintained the order of learned Rent Controller to the extent of payment of monthly rent and impairing the value and utility of the demised premises, but reversed the findings given on the point of personal bona fide need and thereby allowed the said appeal to that extent and ordered for ejectment of the petitioners.
The petitioners through instant Constitutional Petition, have impugned the said judgment of appellate Court only to the extent of personal bona fide need of the demised premises by the respondents No.1 (1 to 8). It has come on record that now the petitioner Mehfooz Hussain has purchased the shares of 1 to 7 legal heirs of respondents No.1, in the demised premises and has also paid a substantial amount to them, therefore, in these circumstances, the previous status of the petitioner i.e. Tenant in the demised premises has enormously changed and he has become co-owner of the said shop along with Imran Khan, son of respondent No.1 and the privity of the landlord and tenant has come to an end it may be pertinent to mention here that purchase of demised premises by the petitioner Mehfooz Hussain has been admitted by the respondents No.1 (1 to 7) and they - have not only filed their statements on oath, but have also admitted the receipt of sale consideration from the above petitioner. The respondent No.1(8) has not denied the sell transaction in respect of property in question between petitioner Mehfooz Hussain and respondents Nos.1(1 to 7), but has only agitated the issue that it does not confer any title upon the petitioner as no sale deed has been executed between them, as such sufficient material in the shape of agreement, admission on the part 'of the sellers in the judicial proceedings are brought in the case, which confirmed the petitioner Mehfooz Hussain as purchaser and becoming co-sharer in the demised premises, therefore, the status of the petitioner, named above, has been ceased as tenant and his position will become that of co-owner, which falls within the definition of landlord and the co-sharer entitling him to retain the possession of the joint property till its partition and thus cannot be ejected. In this respect I am fortified by the cases of Sanobar Sultan and Abdul Zahir (Supra).
12. So far as the plea of respondent No.1(8) that he can maintain his plea for personal bona fide need even after sell of property in question by the respondents No.1 (1 to 7) and not pressing this petition by them is concerned, it is not the case of the predecessor-in-interest of respondents. No.1 (1 to 8) in ejectment proceedings that the demised premises was required by him for personal bona fide need of respondent No.1(8), no material has been brought on record 'to establish the plea of respondent No.1(8) and no such plea was taken up in the rent proceedings.
13. Adverting to the case-law referred by learned counsel for the parties in support of their respective stances, I am of the view. _ that the case-law cited on behalf of the petitioners and -the respondents No.1 (1 to 7) deals with the transaction involved, whereas the case-law relied upon by the learned counsel for Imran Khan, son, of the respondent No.1 being on different facts have no relevancy with the facts and circumstances of this case.
14. In view of above, I accept the petition, set aside the impugned judgment dated 9-3-2012 and after setting aside the same, restore the order of learned Rent Controller Karachi East dated 27- 52011 with no order as to costs.