' ATIR MAHMOOD, J.---The appellants Muhammad Naeem etc. Filed a petition against respondent No,1 Khawaja Muhammad Akbar for his ejectment from property No, B- 1-24-415, situated at ground floor of Saeed Manzil Kashmir Road, Wazirabad Road Kotli Behram, Sialkot City on the grounds of default in payment of enhanced rent and personal need. The ejectment petition was contested by respondent No,1-defendant by filing written statement wherein he denied any default in payment of rent. Out of divergent pleadings of the parties, learned Rent Controller, Sialkot settled four issues including that of relief, recorded evidence led by the parties and after hearing both sides accepted the ejectment petition directing the defendant to vacate the rented premises within one month vide order dated 8-9-2006. Feeling dissatisfied, respondent No,1 filed an appeal which was dismissed by learned Additional District Judge, Sialkot vide judgment dated 1-6-2009 while protecting his right of easement of using passage way by invoking section 10 of the Punjab Rent Restriction Ordinance 1959 the Ordinance). Hence this Second Appeal against Order.
2. Learned counsel for the petitioner inter alia contends that the impugned order to the extent of invocation of section 10 of the Ordinance is not only without jurisdiction but is a nullity in the eye of law; that there was no issue framed by learned trial court or by the learned lower appellate court regarding the easement right, therefore, no order in this regard could be passed; that the appellate authority while exercising its jurisdiction under the Punjab Rent Restriction Ordinance, 1959 could not pass order for easement rights; that by allowing usage of passage of tenanted portion of the property, the learned lower appellate court has practically nullified the ejectment order; that the learned lower appellate court was also not justified to grant 6 months period to the respondent for vacation of the rented property, therefore, this SAO be allowed and the impugned judgment be set aside to the extent of easement rights.
3. On the other hand, learned counsel for the respondents has vehemently opposed this SAO and fully supported the impugned judgment by submitting that there is no other passage of the tenanted premises and if the easement right of the respondents is not protected, they will not be able to run their business over the tenanted shops which fall in the share of landlords other than the appellants.
4. Arguments heard. Record perused.
5. There are concurrent findings against the respondents as the ejectment petition has been accepted by learned Rent Controller which was upheld by learned lower appellate court but with the restriction that the respondents will hand over vacant possession of the property to the appellants who will protect the right of passage of the respondents by holding that the property of other landlords Muhammad Waleed etc., which is in possession of the respondents as tenants, has no other passage.
6. Since the ejectment order has not been assailed by the respondents which has attained finality, therefore, the only question which is to be resolved by this Court is as to whether the appellate court was justified to direct the appellants to give right of passage to the respondents out of the property exclusively owned by the appellants.
7. Scanning of record shows that the property was initially owned by Haji Muhammad Siddique. The respondents were tenants under Haji Muhammad Siddique. After death of Muhammad Siddique, present appellants and other legal heirs of Muhammad Siddique, i.e, Muhammad Waleed etc. Became joint owners of the property. Afterwards, there took place a family partition between the present appellants and Muhammad Waleed etc. The appellants filed ejectment petition against the respondents which was allowed and they were directed to hand over vacant possession of the property to the appellants. However, the respondents are still tenant in the portion owned by Muhammad Waleed etc., adjacent to the property of the appellants.
8. The site-plan of the whole property, i.e, the property of the appellants and the property owned by Waleed etc., has been brought on record as Exh.A4 which has not been denied by any of the parties. Exh. A4 reflects two distinct portions. Both the portions are situated on Kashmir Road commonly known as Wazirabad Road. However, the main gate is shown to be installed in the portion owned by the appellants whereas the property owned by Waleed etc. Has a wall towards said Kashmir Road. If the respondents/owners desire a passage towards the main road, i.e, Kashmir Road, they may make their own way towards the Kashmir Road by removing the wall and installing gate/door, whatsoever, therein and it does not seem expedient for them to necessarily pass through the property which exclusively falls within the ownership of the appellants. When the respondents can make approach towards Kashmir Road directly by installing gate/door in the property falling in their possession, the appellants cannot be directed to curtail their right in their property by providing passage to the respondents.
9. Learned lower appellate court while directing the appellants to provide passage to the respondents has relied upon section 10 of Urban Rent Restriction Ordinance, 1959 which reads as under:-- "10. Landlord not to interfere with amenities enjoyed by the tenant.- --(1) No landlord or his contractor, workman, or servant shall, without the previous consent of the Controller or save for the purpose of effecting repairs or complying with a requisition from a Municipal Committee or Cantonment or Town Improvement Board, wilfully disturb any convenience or easement annexed to the premises or remove, destroy or render unserviceable anything provided for permanent use therewith or discontinue or cause to be discontinued any supply or service comprised in the fair rent.
(2) A tenant in occupation of a building or rented land may, if the landlord has contravened the provisions of this section, make an application to the Controller complaining of such contravention.
(3) If the Controller, on inquiry, finds that the tenant has been in enjoyment of the amenities and that they were cut off or withheld by the landlord without just or sufficient cause, he shall make an order directing the landlord to restore such amenities."
'Perusal of above provision makes it crystal clear that the same is applicable where the relationship of landlord and tenant exists. As noted above, after the ejectment order passed by learned Rent Controller and upheld by learned lower appellate court, the respondents are no more tenants under the appellants, rather they are, at present, tenants in the premises falling under share of Waleed etc. After family partition of the property between the appellants and Waleed etc. When the respondents are not tenants of the appellants, this provision cannot be applied upon the appellants to provide passage to the respondents which even if was being used by them previously. In the circumstances, the learned lower appellate court was not justified to direct the appellants to provide way to the respondents out of the property falling under their share, as such, the impugned judgment cannot sustain in the eye of law.
9. In view of the foregoing, this appeal is allowed, the impugned judgment dated 1-6-2009 to the extent of allowing passage to the respondents from the property of the appellants is set aside and order dated 8-9-2006 passed by learned Rent Controller, Sialkot is restored.