1. ' This appeal is directed against the judgment dated 17th September, 1980 whereby the 1st Additional District Judge, Hyderabad (Mr. Khadim Hussain Junejo) upheld the order dated 24th February, 1977 of IIIrd Senior Civil Judge and Rent Controller, Hyderabad (Mr. Rehmat Hussain Jaferi).
2. ' The facts of the case in brief are that the respondent Muhammad Ishaque instituted a case of ejectment in the Court of Joint Civil Judge and Controller, Hyderabad, seeking ejectment of Bismillah Transport Co. And applicant Shamim Ahmed from the premises bearing No, A/2603, Market Road, Hyderabad which he claimed to have been transferred to him by the Settlement Department. The Bismillah Transport Co., the statutory tenant in respect of the said premises, did not contest the case and as such it was made ex parte vide order dated 17th January, 1970 of the Rent Controller. The appellant Shamim Ahmed who was in physical possession of the disputed premises as sub-tenant however, resisted the case on the ground that the premises which is a shop was a property of Mst. Maqbool Bibi who had let out the same to him. Subsequently the said Mst. Maqbool Bibi who happened to be in possession of a house adjoining to the disputed premises was also joined as a party in the ejectment case out of abundant caution and to avoid future complications.
3. ' In view of the plea taken by appellants Shamim Ahmad and Mst. Maqbool Bibi, the learned Controller framed a preliminary issue as to whether relationship of landlord/tenant existed between the parties. After considering the evidence produced by the parties, including various documents relevant in the case, he decided the issue in the affirmative holding the relationship to be existing between the respondent Muhammad Ishaque and Bismillah Transport Co. Thereafter, the learned Controller by order dated 16th August, 1972 called upon the respondents to deposit Rs, 960 as rent arrears in two equal instalments, first instalment payable before 18th September, 1972 and the second one to be deposited on or before 18th October, 1972. As for further rent, he ordered it to be deposited at the rate of Rs, 20 per month before 15th of every month. As the Bismillah Transport Co., the real tenant, was ex parte, the alleged sub-tenant Shamim Ahmed, (one of the appellants) went in appeal against the said order. The learned District Judge, Hyderabad vide his order dated 9th February, 1973 accepted the appeal on the ground that Shamim Ahmed who was alleged to be sub-tenant did not fall within the definition of tenant and was, therefore not obliged to comply with the order regarding depositing of rent arrears.
4. ' The record of the Lower Court shows that once again subsequent to joining of Mst. Maqbool Bibi as party in the case, the learned Controller passed a tentative rent order on 22nd March, 1974 in the following terms :- "Advocate for the applicant and Advocate for the opponents Nos. 2 and 3 present. Opponent No, 1 is ex parte. Today the matter is fixed for tentative rent order. I assess the period of rent from 1st April, 1968 to 28th February, 1974 i,e, 71 months at the rate of Rs, 15 per month. The amount will be Rs, 1,065.
5. The opponent No, 1 is directed to deposit the arrears of rent of Rs, 1,065 before 15th May, and he is further directed to go on depositing the monthly future rent at the same rate before 15th of each calendar month."
6. ' In the meantime on 26th April, 1974 the learned Controller framed the following issues :- "(1) Whether the opponent No, 1 is defaulter in payment of rent ?
(2) Whether opponent No, 1 has sublet the possession of the shop in question to the opponents Nos.
7. 2 and 3 ?
(3) Whether the application is maintainable at law ?
(4) What should the order be ?
8. ' Instead of deciding these issues, the learned Controller struck off the defence of the statutory tenant namely the Bismillah Transport Co. By his order dated 27th May, 1974 which reads as under :- "Mr. Khursheed Alam, Advocate for applicant and Mr. Jamil Ahmed, Advocate for opponent Nos. 1 and 2 present. Heard their arguments. Rent order was passed against opponent No, 1 on 22nd March, 1974 and opponent was directed to deposit the arrears of rent before 15th May, and future rent before 15th of each calendar month. From the Nazir's report it appears that opponent No, 1 has not deposited the arrears of rent upto 17th May, 1974. Opponent No, 1 has become clear defaulter as he has not deposited the amount of rent as ordered by the Court. I, therefore, strike off his defence and order him to hand over the vacant possession of the disputed premises to the applicant within one month of this order."
9. ' With passing of this order the ejectment proceedings came to an end. No decision was however taken on other issues particularly the issue with regard to Shamim Ahmed being sub-tenant of the Landlord Muhammad Ishaque. Thus the status of the appellant Shamim Ahmed who was admittedly in actual occupation of the disputed premises was left undecided. It seems no appeal was preferred from the order by which the defence of the Bismillah Transport Co. Was struck off. In other words the decision of the learned Rent Controller to the effect that the said company shall hand over vacant possession of the disputed premises within one month of the order remained intact. When Muhammad Ishaque did not receive the possession within the specified period, he moved the Lower Court for execution of the decree. The Execution Application dated 20th January, 1976 clearly shows that it was filed only against Bisrnillah Transport Co. And Mst. Maqbool Bibi. The appellant Shamim Ahmed who is said to be in actual possession of the premises was not joined as party. In other words ejectment was not sought against him. However the objections filed by Mst.
10. Maqbool Bibi wherein she repeated her claim of ownership over the disputed premises adding that she had got the possession of the property from Bismillah Transport Co. On 23rd January, 1964 by the order of Additional Civil Judge, Hyderabad, did not find favour with the learned IIIrd Senior Civil Judge and Rent Controller, Hyderabad who by his order dated 24th February, 1977 rejected the same as being without any force. In the same order he directed issuance of writ of possession as prayed for in the Execution Application. The Civil Appeal No, 77 of 1977 preferred from this order by the said Mst. Maqbool Bibi also failed vide order dated 17th September, 1980 of the First Additional District Judge, Hyderabad. It is against the last mentioned order that the present appeal has been filed.
11. ' The learned counsel for the parties were heard at great length. The material point to be decided in this appeal is whether the appellants who are legal representatives of Mst. Maqbool Bibi or appellant Shamitti Ahmed can be ejected in pursuance of the writ of possession issued by the learned Controllers. It goes without saying that appellant Shamim Ahmed is in physical possession of the disputed premises. According to him he was put in possession by Mst. Maqbool Bibi who happened to be his monther-in-law. If this plea is accepted, Mst. Maqbool Bibi and after her death, her legal representatives will be considered to be in constructive possession of the said premises. I have gone through the impugned judgment carefully. The learned Additional District Judge has given sound reasoning to uphold the learned Controller's order by which the objections filed by Mst.
12. Maqbool Bibi were rejected. The findings arrived.At by the learned lower Appellate Court are correct. It is borne out by the series of the documents that the shop in dispute was transferred to the respondent Muhammad Ishaque. Accordingly he had rightly filed the ejectment case as landlord of the said shop.
13. ' However the Bismillah Transport Company who was alleged to be in possession of the shop at time of the transfer to the respondent, did not contest the case. The said, company was therefore made ex parte. After declaring the company ex parte the learned Controller should have proceeded to decide the case with regard to Shamim Ahmed and Mst. Maqbool Bibi. Instead of doing that, he passed an order calling upon the said company to deposit rent arrears. Even after non-compliance of this order by the said company, the learned Controller contented himself by striking off the company's defence. He did not deem fit to decide the status of the appellants, vis- a-vis the disputed shop. As pointed out above, with the finding of the two Lower Courts that respondent Muhammad Ishaque was the transferee and the landlord of the disputed shop, the plea raised by the appellants in this regard had obviously failed. But it was still necessary to find out how Shamim Ahmad entered into possession of the said shop. Of course the case of the respondent Muhammad Ishaque was that Bismillah Transport Company had sublet the premises to him. This was however denied by Shamim Ahmed. In view of his denial even the issue whether the shop had been sublet to him was framed by the learned Controller, Unfortunately no finding was recorded on this issue. With striking off the Bismillah Transport Company's defence, the whole case was terminated. Thus it could not be decided if Shamim Ahmed's status in relation to the shop was of sub-tenant. In absence of such finding, decree passed against the aforesaid company could not be executed against him. Accordingly he cannot be ejected in pursuance of the writ of possession issued by the learned Controller.
14. ' In this connection reference may be made to Mst. Sahibun-Nisa and others v. Mst. Mahmooda Begum. It was observed :- "If he was in possession on account of the,judgment-debtor, then his dispossession was not illegal, but if he was in possession of the property on his own account, his dispossession was illegal''.
15. ' The above authority clearly supports the view that there being no finding of the Court to the effect that Shamim Ahmed was put in possession of the shop by the tenant Bismillah Transport Company he cannot be dispossessed in consequence of the execution of the decree passed against the said tenant.1 ' As has been held by the two Courts below that the disputed premises was not transferred to Mst.
16. Maqbool Bibi, Shamim Ahmed cannot be held to have been put in possession of the premises by the. Said Maqbool Bibi. Similarly as stated above there is no finding of the learned Controller that the premises was sublet to him by the Bismillah Transport Company. In these circumstances the position of Shamim Ahmed with respect to the disputed shop is of unauthorized occupant.
17. Accordingly he cannot be ejected except in due course of law by taking appropriate legal steps.
18. The writ of possession issued by the learned Controller in consequence of execution of the decree passed against the Bismillah Transport Company cannot be enforced against him and he can be ejected on the strength of the said writ of possession. As for other appellants who are legal representatives of Mst. Maqbool Bibi, it is an admitted position that they are not in physical possession of the shop. Their plea that Mst. Maqbool Bibi is the owner of the disputed property has not been accepted by the two Courts below.
19. ' In view of the material available on record, I see no reason to differ from the findings of the two Courts below, which as pointed out above. Are based on good grounds. Accordingly subject to the observations that writ of possession issued by the learned Controller cannot be enforced against Shamim Ahmed whose position is of unauthorised occupant, the appeal is partially accepted with no order as to costs. PLD 1959 Lah. 511