SHUJAAT ALI KHAN, J. Briefly put, the respondent filed an Ejectment Petition against the appellants qua Shop bearing No, 34-A, falling in Khasra No, 1918, Khewat No, 1164, Khatooni No, 1166, Ward No, 6, Nizam Market, Street No, 6, Anarkali Bazar, Faisalabad (hereinafter to be referred as the rented shop) with the averments that having purchased the said property from Zafar lqbal etc. through registered Sale-deed bearing No, 4043, dated 02.05.2000 he became owner of the rented shop.
Upon service of notice, the appellants joined the proceedings by filing written reply inter alia with the objections that as they being tenants of Abdul Wahid have no concern with the change of ownership of rented shop owned by Zafar lqbal etc; that having knowledge about the change of ownership in favour of the ejectment-petitioner, they contacted their landlord, Abdul Wahid, who in turn presented before them a copy of gift deed qua the rented shop. Out of divergent pleadings of the parties the learned Special Judge (Rent) Faisalabad framed following Issues:-- "1. Whether there exist relation of landlord and tenant between the parties? OPA.
2. Relief"
2. To prove his stance, the respondent (ejectment petitioner) produced Rana Muhammad Rasheed, Advocate as AW-1, Muhammad Masood, Advocate as AW-2, Aziz-UrRehman as AW-3, Muhammad Zia-ul-Haq as AW-4 and Muhammad Salim as AW-5. In addition to oral evidence the respondent also tendered in evidence documents ranging from Exh.A/1 to Exh.A/9.
3. On the other hand, the appellants (respondents in ejectment petition) examined, Iftikhar Ahmad (appellant No, 1) as RW-1, Abdul Wahid as RW-2, Muhammad Naveed as RW-3 and tendered in evidence receipts regarding payment of rent to Abdul Wahid Exh.R-1 to Exh. R-74 copy of Record of Rights for the year 2001-2002 relating to property No, 34-A as Exh.R-25 and copy of order, dated 27.05.2002, passed by this Court in Civil Revision No, 42/2002, as Exh.R-26.
4. Upon conclusion of the proceedings the learned Special Judge (Rent), Faisalabad, dismissed the Ejectment Petition vide order, dated 21.01.2010, against which the respondent preferred an appeal.
The learned Additional District Judge, Faisalabad, accepted the same vide judgment, dated 04.03.2011; hence this second appeal.
5. It is imperative to clarify here that during the course of cross-examination RW-2 was confronted with copy of plaint; copy of order, dated 29.05.2007. passed by Civil Court; copy of written statement, copy of contempt petition; copy of order dated 29.05.2007; copy of execution petition; certified copy of order dated 06.06.2005 passed by the learned Additional District Judge; copy of order dated 22.06.2005 passed by the Hon'ble Supreme Court of Pakistan; copy of order dated 03.02.20G5 passed by this Court; copy of order dated 2C.07.2003; copy of judgment & decree dated 30.01.2002 which were referred as Exh.A-13/RW-2 to Exh.A-23/RW-2. Despite my best efforts I have not been able to find out as to how the said documents, appearing on the record of the lower Court, at Pages No, 171 to 347, were exhibited in evidence. Further, mention of RW.2 on the said documents shows that they were purportedly produced by RW-2 whereas they have been exhibited as produced by the ejectment-petitioner. Likewise, exhibiting of documents Exh.A-10/RW- 2 to Exh.A-12/RW-2 available at pages No, 147 to 167 of the record of the lower Court is not established from interim orders as well as evidence of the parties. Perhaps the said documents were marked as exhibited during the course of their confrontation to RW-2 due to some inadvertence. As the said documents have neither been discussed by the learned Special Judge
(Rent) nor by the appellate forum instead of deciding the matter on this issue I venture to decide the matter on merits.
6. The legal submissions formulated by learned counsel for the appellants can be summarized in the words that admittedly the rented shop falls in Khasra No, 1918 which is jointly owned by different persons and till its formal partition, the ejectment proceedings filed by the respondent were not maintainable; that claim of the respondent is that he purchased the shop from Zafar lqbal etc. but he did not bother to produce them in the witness box to establish that prior to registration of sale- deed in his favour the appellants were tenants of said vendors; that it is well established by now that question of title cannot be decided by a forum established under Rent Laws; that the lower Appellate Court has reversed the findings of the Court of first instance without advancing any cogent reasons; that to establish title it is incumbent upon a party to establish the same beyond reasonable doubt but despite holding that the respondent failed to establish so, the lower Appellate Court illegally accepted the appeal filed by him. In support his contentions, learned counsel has also relied upon the cases reported as Rehmatullah v. Ali Muhammad and another (1983 SCM R 1064) and M/s. Symphony (Pvt.) Ltd. v. Haji Fazal Karim and others (2015 CLC 103).
7. Conversely, learned counsel representing the respondent, while defending the impugned judgment, submits that as the exact boundaries of the property subject of the Gift Deed executed by the brothers and sisters of Abdul Wahid was missing, the Court of first instance was not justified to dismiss his ejectment petition thus its findings were rightly reversed by the lower Appellate Court; that sale-deed executed in favour of the respondent having exact dimension of the rented shop there was no dispute regarding title; that in the evidence the appellants side admitted that there was a family partition amongst the co-owners, therefore, they could not claim that without due partition the Ejectment. Petition was not maintainable; that a similar question has already been decided by this Court while dealing with S.A.O. No, 94/2003 and the facts and circumstances of the said case being identical, the decision of this Court in the said appeal is applicable to the present case. In support of his contentions learned counsel has relied upon the cases reported, Suleman and another v. Ataullah and 5 others (2010 CLC 116), Pervaiz v. Amir Aziz (2005 CLC 594)and judgment, dated 10.02.1992, rendered by the apex Court of the country in Civil Petition for Leave to Appeal Nos. 495-L/1991 titled Muhammad Yousaf v. Settlement & Rehabilitation Commissioner.
8. While exercising his right of rebuttal, learned counsel for the appellants argues that the appellants never stated in evidence that the property was partitioned amongst the co-sharers of Khasra No, 1918 rather their stance was that legacy of Mukhtar Ahmed, father of Abdul Wahid, was divided amongst his legal heirs pursuant to a family settlement.
9. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this appeal as well as the case-law cited at the bar.
10. During the course of scanning the record of the lower for a I have noted that while deciding Issue No, 1 the lower Appellate Court has mainly banked upon the fact that as the Gift Deed in favour of Abdul Wahid, was bereft of the exact specification of the subject property whereas the sale-deed registered in favour of the respondent bore exact identification thus the claim of the latter was on better footing. In this regard, I disagree with the ridings of the lower Appellate Court for the reason that in the very opening lines of the Gift Deed (Exh.A/9) it has been mentioned that subject of the gift comprise of a private Almirah No, 34-A falling in Khasra No, 1918, Khewat No, 1164 and Khatooni No, 1166. Further. AW-3, AW-4 and AW-5 admitted during their cross-examination that the sale-deed executed in favour of the respondent was not carrying shop number which fact also stands confirmed by the contents of sale-deed (Exh.A/4) being relied upon by the respondent.
In this scenario, the observation of the first Appellate Court cannot be blessed with stamp of authenticity simply for the reason that the document executed in favour of the respondent was on better footing. It is very ironical that on the one hand the respondent took clear cut stance that he purchased Almirah No, 34/A but on the other hand refused to accept the said Identification sufficient especially with reference to Gift Deed in favour of Abdul Wahid.
11. Admittedly the respondent stepped into shoes of Zafar lqbal etc. and in view of the rival claims regarding Possession over the rented shop the safer course for him was to produce the vendors before the Court to establish that prior to transfer of the rented shop in his favour the present appellants were tenants of Zafar lqbal etc. but the respondent withheld such evidence for the reasons best known to him. It is well established by now that when a party withholds an important piece of evidence inference goes against him. Reliance in this regard is placed on the cases reported as Dr. Muhammad Khan v. Khuda Bukhsh and others (2015 SCM R 1243), Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 S.C. 212), Muhammad Zubair v. The State (2007 SCM R 437), Amirzada Khan and others v. Ahmed Noor and others (PLD 2003 S.C. 410) and Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCM R 137). In the case of Dr. Pir Muhammad Khan (Supra) the apeX Court of the country while clinching the issue regarding consequences of withholding of best evidence by a party has inter alia held as under:--- 17. Another aspect of the case, which has negative impact over the claim of the respondents in exercising their right of pre-emption over the suit land in a lawful manner is the fact that as per averments made in the plaint and the deposition of P. W.1 Hidayatullah, only he made the requisite talbs alongwith his brother Adalat Khan, who also exercised such right on behalf of his other three brothers, Khuda Bakshsh, Sardar All Khan and Karim Bakhsh, all sons of Mustajab Khan on the basis of power-of-attorney dated 2-6-1987 in his favour. Admittedly, the said document, typed on a twenty-five Rupees stamp paper, is special power-of-attorney, which is to be construed strictly as per its contents. The contents of this power-of-attorney reveal that it was executed by Khuda Bakhsh, Karim Bakshsh, Sardar Ali and Hidayatullah Khan in favour of Adalat Khan, but it contained no specific delegation of power in his favour for exercising the right of preemption over the suit land on behalf of its executants. Thus, for all intent and purposes, no right of pre-emption was legally exercised on behalf of respondents Khuda Bux, Karim Bux and Sardar Ali. Moreover, the said attorney, Adalat Khan, also did not bother to appear in the witness box to offer himself to the test of cross-examination as regards his purported authority to exercise right of pre-emption on their behalf. <u>Withholding of such evidence by the respondents has not been explained anywhere, which gives an adverse presumption as regards the merits of their claim</u> of making Talb-i- Muwathibat and Talb-i-Ishhad, strictly as mandated under the provisions of Muhammadan Law."
(emphasis provided).
12. Another important aspect of the instant case is that after transfer of Shop bearing Almirah No, 34/A in the name of Abdul Wahid by virtue of Gift Deed (E, h.A/9) how the same was available for its further transfer by Zafar lqbal etc. in favour of the respondent. There is no cavil with the preposition that till a property is formally partitioned its co-sharers can dispose of their unidentified share but the same is subject to certain conditions viz. no co-owner can be allowed to sale specific number/portion of joint property. In this regard I stand guided by the law laid down in the cases reported as Jan Muhammad and another v. Abdul Rashid and 5 others (1993 SCM R 1463) wherein the august Supreme Court while dealing with the issue regarding sale of specific portion of the property by one of the joint owners laid law to the following effect:--- "..Needless to emphasise that the possession of one co-sharer in law is the possession of all and that an alienation made by the co-sharer in possession cannot put an end to the 'point ownership possession of the robert and the transferee co-sharer steps into the shoes of the transferor qua his ownership rights in the joint property no more no less, as held by this Court in case Muhammad Muzaffar Khan v. Muhammad Yousuf Khan (PLD 1959 Supreme Court (Pak.) 9). In this view of the matter the petitioners can only claim ownership in the entire joint property owned by their transferor with the other co-owners and retain possession of the area specifically purchased by them till partition but cannot claim exclusive ownership thereto. The plaintiffs/ respondents were undoubtedly recorded co-sharers and therefore were rightly held as such by the Appellate Court. However, since the petitioners have already constructed house on the area purchased by them without any objection by that co-sharers rather they acquiesced in the said construction, the petitioners shall remain in possession thereof till partition of the entire joint property viz., the suit Khasra numbers and the other Khasra numbers in which the transferors of the petitioners were joint owners and in the partition, whenever embarked upon, efforts shall be made to place the same in the lot of the petitioners as far as practicable and the other co- sharers compensated in the other joint property." (emphasis provided).
13. Learned counsel for the respondent, while responding to the plea raised by the learned counsel for the appellants that without clearance of title/possession after formal partition the proceedings before the learned Special Judge (Rent) Faisalabad were not maintainable, has referred to the statement of RW-3 with the assertion that since said witness has admitted partition of the joint property the proceedings before the learned Special Judge (Rent) Faisalabad were maintainable.
In this regard, I do not agree with the learned counsel for the respondent for the reason that during the course of cross-examination Muhammad Naveed (RW-3) stated that at the time of death of Mukhtar Ahmed, father of Abdul Wahid, the property was jointly owned by him alongwith his brothers Abdul Ghafoor and Manzoor Ahmed. Further, no specific suggestion by the respondent side was put to the said witness as to whether the property was partitioned amongst the co- sharers of Khasra No, 1918. Moreover, Abdul Wahid (RW-2) during his cross-examination clarified that the shop fell to his share pursuant to a family settlement amongst the legal heirs of Mukhtar Ahmed. He further stated that alongwith the legal heirs of Mukhtar Ahmed, Zafar Iqbal etc. were also co-owners in Khasra No, 1918.
' Aziz-ur-Rehman, AW-3, during the course of cross-examination admitted that the rented shop was purchased from Joint Khata. Further, Muhammad Zia-ul-Haq, AW-4, admitted that the property was purchased from joint Khata. In the presence of such straightforward facts the lower Appellate Court has committed grave illegality while holding that the property having formally been partitioned ejectment proceedings before the learned Special Judge (Rent) were maintainable.
14. Now coming to the contention of the learned counsel for the respondent that as similar question has already been dealt with by this Court while deciding S.A.O. No, 94/2003 instant appeal deserves dismissal, I am of the view that each case has to be decided on the basis of its peculiar facts and circumstances. Undeniably the case referred by the learned counsel for the respondent not only pertained to distinct property but parties to the proceedings were also different. In this backdrop, it is not just to decide the instant appeal while relying upon the decision in the said case despite the fact that certain points might have similarity in both these cases.
15. While scanning the record, I have noted that the matter regarding payment of rent by the appellants came to this Court whereupon they were allowed to pay rent either to Abdul Wahid or to Muhammad Nasir. Pursuant to the order of this court, the appellants have been paying rent to Abdul Wahid, therefore, there is no question of default on their part.
16.As a necessary corollary to the above discussion I am of the considered opinion that without formal partition of the property falling in Khasra No, 1918 the proceedings before the learned Special Judge (Rent), Faisalabad were not maintainable. Further, non-production of the vendor from whom the respondent is claiming title badly affected his case. Consequently, instant appeal is accepted and impugned judgment and decree passed by the lower Appellate Court is set aside.
As a result, the order passed by the learned Special Judge (Rent), Faisalabad shall hold the field.
There shall be no order as to costs.