RASAAL HASAN SYED, J.---Petitioner in this Constitutional petition has challenged orders dated 29.2.2020 and 21.10.2020 respectively issued by the learned Special Judge (Rent) and the learned Addl. Addl. District Judge, Attock whereby the Ejectment Application filed by the petitioner was dismissed and the order was affirmed in appeal.
2. Petitioner filed an application under sections 15 and 22 of The Punjab Rented Premises Act, 2009 (the "Act") seeking eviction of respondent No.3 from a shop in Taimur Market, Property No.B-XIV -94, Main Sarafa Bazar , Pindigheb claiming that respondent No.3 was rented out the shop, the tenancy was oral, respondent No.3 committed default in payment of rent and that the tenancy had expired. On grounds of default and expiry of tenancy , the petitioner claimed eviction of respondent No.3. In Application for Leave to Contest filed by the respondent No.3 relationship of landlord and tenant was denied and it was asserted that respondent No.3 was the tenant of Meer Afzal Bhatti, the brother of the petitioner , and that the petitioner was not entitled to seek eviction.
Application for Leave to Contest was allowed and issue as to existence of relationship of landlord and tenant between the parties was framed. During the proceedings of the case respondent No.4 Meer Afzal Bhatti filed an application to be made party in the ejectment proceedings. The application was contested but was allowed by the learned Special Judge (Rent) and he was impleaded as respondent in the Ejectment Application. Oral as well as documentary evidence was produced by the parties. Ejectment Application was finally dismissed by the learned Special Judge (Rent) vide order dated 29.2.2020. Being aggrieved thereof, the petitioner filed an appeal which could not succeed and was dismissed by the learned Addl. District Judge, Attock vide order dated 21.10.2020.
Through the instant Constitutional petition both these orders are now under challenge.
3. Learned counsel for the petitioner submitted that the construction of "Taimur Market" was carried out by him and that respondent No.4 could, at best, be impleaded as co-petitioner and could not be joined as respondent in the Ejectment Application and that the learned Special Judge (Rent) did not frame an issue on the plea of collusion between the respondents and that the impugned orders were based on misreadin g and non-reading of evidence and also suffer from jurisdictional defect. Contrariwise, the learned counsel for the respondents submitted that both the learned forums below had correctly appreciated the evidence and rightly concluded that the relationship of landlord and tenant did not exist between the petitioner and respondent No.3 and that the respondent No.4 was in fact the landlord and, therefore, the ejectment could not be allowed at the instance of the petitioner .
4. From the facts as may be gleaned from oral as well as documentary evidence, it is revealed that the case of the petitioner was that he was owner of Prop erty No.B-XIV -94, Maid Sarafa Bazar , Pindigheb; respondent No.3 was inducted as tenant in the shop; the tenancy was oral; the property was orally gifted out in his favour by his father late Muhammad Yousaf Bhatti; the heirs of late Muhammad Yousaf Bhatti executed a family settlement wherein the property was surrendered in his favour; the petitioner demolished the old construction and built a market with the name of "Taimur Market"; respondent No.3 was his tenant in the shop and that in view of the official engagements he had instructed his brother Meer Afzal Bhatti, respondent No.4, to collect rent as his agent in terms of agreement dated 03.2.2002 and that in year 2015, the petitioner withdrew the rent collection authority and started collecting rent himself by taking over the management of his market and that respondent No.3 committed default in payment of rent and also that the tenancy being oral, had expired, making the responde nt tenant liable to eviction. As against this, the stance of respondent No.3 was that he was a tenant in the shop but that of the brother of the petitioner i.e. Meer Afzal Bhatti, respondent No.4; and that the tenancy was oral.
5. Respondent No.4 after being impleaded alleged that a suit was pending in the Civil Court regarding partition of the property; respondent No.3 was his tenant and that Ejectment Application was not maintainable. Documentary evidence included copy of the judgment of the civil court dated 19.4.2004 as Exh.A-4, copy of judgment of the learned District Judge dated 24.2.2005 as Exh.A-5/1-19, copy of judgment of this Court dated 30.1.2002 as Exh.A- 6/1-1 1, copy of the Order of the Supreme Court of Pakistan dated 14.10.2009 as Exh.A-7/1- 5, copy of written statement in suit titled "Mst. Ghulam Sughra Bhatti and other s v. Mushtaq Ahmad Bhatti and others as Ex.A- 8/1-3, copy of oral evidence in the said suit as Exh.A-9/1-7, copy of order of the learned Civil Court dated 26.3.2015 as Exh.A-10/1-10, receipts of tax as Exh.A-1 1/1-4 and receipt of rent as Mark-Ac/1-5 and Mark Ad/1-7, etc. The respondents inter alia produced Exh.R-4/1-3 which was attested copy of order dated 21.4.2003 of the learned Addl. District Judge, Exh.R-5/1-3, a copy of order dated 14.9.2013 and also placed reliance on Exh.A-4 to Exh.A-8 and produced oral evidence of the witnesses as well.
6. Learned Special Judge (Rent) after considering the evidence observed that from the documents it was manifest that initially sisters of the petitioner and respondent No.4 instituted a suit. for declaration and partition of property on the basis of inheritance from their father late Muhammad Yousaf Bhatti. In the said suit amongst other properties, property No.B-XIV -94, Main Sarafa Bazar , Pindigheb was also included. By judgme nt and decree dated 19.5.2001, the property was declared to be joint, preliminary decree was passed and it was held that the price of the superstructure according to market-value of the property was to be adjusted in favour of petitioner Muhammad Akram Bhatti at the time of partition as the plaintif fs in the suit had failed to prove that the construction of "Taimur Market" was raised by late Muhammad Yousaf Bhatti, predecessor of the parties, during his lifetime and that a judgment and decree of the Civil Court was upheld till the Supreme Court of Pakis tan and, therefore, the petitioner could only claim share of rent through suit for rendition of accounts. On the assum ption that the tenancy between the petitioner and respondent No.3 did not exist, the Ejectment Application was dismissed. In appeal, the learned Addl. District Judge af firmed the order of the learned Special Judge (Rent) and dismissed the appeal.
7. Due consideration of the documents that have been relied upon by both sides, shows that the view taken by both learned forums below is based on incorrect assumption of law. The case of the petitioner was that by oral gift from his father qua the property , he became the owner and that after the death of his father , the legal heirs executed a family settlement which was signed by the brothers including the petitioner and respondent No.4 and that the brothers of the petitioner had admitted the petitioner to be the owner of the property in question. It was also his claim that after demolishing the old structure he had raised a new building by the name of "Taimur Market" and that the rented shop formed part thereof and also that he had inducted the tenants and had been receiving rent from them. It was also his case that Meer Afzal Bhatti, respondent No.4, was acting as his agent for some time, which authority was withdrawn and, thereafter , the petitioner himself started receiving rent from the tenants in Taimur Market. Later a Suit No.533/2004 titled "Mst. Ghulam Sughra Bhatti and others v. Mushtaq Ahmad Bhatti and others" for declaration, permanent injunction, partition and rendition of accounts was instituted by Mst.
Ghulam Sughra Bhatti and others , sisters of the petitioner and respondent No.4 wherein they challenged the family settlement/surrender deed and claimed to be co-owners to the extent of 21/72 share in all the properties.
These properties included property No.B-XIV -94, Main Sarafa Bazar , Pindigheb, subject-matter of the Ejectment Petition. In the said suit, the petitioner , respondent No.4 and Mushtaq Ahmad Bhatti jointly contested the suit and defended the family settlement/surrender deed. After a long trial the said suit was decreed on 19.5.2004 by the learned Civil Judge, Attock and this judgment was produced by both parties in the ejectment proceedings. As per said judgment, the family settlement/surrender deed was declared as illegal and inoperative and the sisters Mst.
Ghulam Sughra Bhatti, Mst. Kubra Bhatti and Mst. Kausar Parveen were held entitled as shareholders to the extent of 21/72 share. As regarded the structure of Taimur Market, it was observed as follows in the said judgment: "As far as construction over various properties mentioned in schedule Ex-P1 is concerned, defendants in their written statement had said nothing about the construction of any specific property , however , Muhammad Akram Bhatti DW-3 during his statement has mentioned that he reconstructed property No.B-XIV -94 in year 1991 after demolishing the old construction and got constructed Taimur Market in the name of his son Taimur Akram Bhatti ". He further mentioned that Mushtaq Ahmad Bhatti got constructed eight shops on his property situated in Ward No.14, Pindigheb. On the other hand, Mst. Ghulam Sughra Bhatti was not given any suggestion in this context during cross-examination. However , Mst. Kausar Parveen PW-2 during her cross-examination specifically denied that the shops of Pindigheb had been constructed by Mushtaq Ahmad defendant, rather she stated that the same had been built by her father in his lifetime. Plaintif fs have provided documentary proof in this context which is Ex-P17 to Ex-P20. The documents contained various applicatio ns of Muhammad Yousaf Bhatti along with site plan with regard to construction of shops which at least show that permission for the construction of shop was obtained by Muhammad Yousaf Bhatti himself during his lifetime ....As far as reconstruction of property No.B-XIV -94 by Muhammad Akram Bhatti defendant is concerned, the plaintif fs have not provided any proof in rebuttal , hence price of its superstructure according to market value shall be adjus ted in his favour at the time of partition..."
(emphasis supplied)
8. Copy of the Memorandum of Appeal filed against the preliminary decree shows that the appeal was jointly filed by Mushtaq Ahmad Bhatti, Meer Afzal Bhatti and the petitioner Muhammad Akram Bhatti. Perusal thereof reveals that Meer Afzal Bhatti defended the family settlement/surrender deed which was declared illegal and did not raise any dispute about the fact that the construction of the market was made by the petitioner . Be that as it may, the appeal was dismissed by the learned first Appellate Court on 24.2.2005 (Exh.A-5/1-9). Respondent No.4 along with his brothers including the petitioner filed Civil Revision No.179/2005 which was dismissed by this Court on 25.6.2008 (Exh.A-6/1-1 1) and C.P.L.A. No.977/2008 filed by respondent No.4 was also dismissed by the Supreme Court of Pakistan on 14.10.2009 (Exh.A-7/1-5). Copy of the written statement in the suit titled "Mst. Ghulam Sughra Bhatti and others v. Mushtaq Ahmad Bhatti and others" was tendered as Exh.A-8/1-3 while oral evidence in the suit was also tendered in the ejectment proceedings.
9. It is manifest from the documentary evidence relied upon by both sides that in the civil suit for declaration and partition filed by sisters of the petitioner and respondent No.4, the surrender deed/family settlement was challenged. The learned Civil Judge finally concluded that the document was illegal and ineffective against the rights of the sisters and that the sisters of the petitioner were entitled to 21/72 share in the property . Regarding the building named "Taimur Market" it was observed that though the sanction plan was obtained by late Muhammad Yousaf Bhatti, the predecessor of the petitioner , yet the construction was raised by the petitioner and, therefore, the petitioner was held entitled to the value of the construction which was to be paid at the time of partition by all the co-sharers to the extent of their shares. In result of the litigation which went up to the Supreme Court of Pakistan, "Taimur Market" was considered to be a joint-property , construction of shops was found to have been made by the petitioner , and the petitioner along with all other legal heirs of late Muhammad Yousaf Bhatti including respondent No.4 were considered as joint co-owners in the property and preliminary decree for partition of the property was passed.
10. Learned Special Judge (Rent) after observing that the petitioner was co-owner , fell in error in assuming that the petitioner could not A maintain eviction application. Landlord as per section 2(d) of the Act denotes the owner of the premises and includes the persons for the time being entitled or authorized to receive the rent in respect of the premises. Respondent No.3 admitted himself to be in possession as tenant in the shop in the property of which the petitioner was a co-owner . Respondent No.4 being a co-owner with the petitioner , could not question the right of the petitioner to receive the rent or seek ejectment of tenant on grounds permissible under section 15 of the Act.
The petitioner produced evidence to prove that he had inducted respondent No.3 as tenant in the rented premises while respondent No.4 asserted that he had inducted the tenant in the shop. Even if respondent No.4 as a co- owner inducted respondent No.3 as a tenant in the shop which was a joint-property , the respondent as tenant could not deny the right of the petitioner as co-owner and landlord of the property to receive rent or to seek eviction. In "Aftab Ahmed Saeed v. Faisal Shahdad and others" (2005 CLC 1668 ) it was observed to the effect that every co-owner is entitled to receive rent of the premises as landlord and if one co-owner has not let out the property , but some other co-owner or authorized person entitled to receive rent has, by legal fiction every co-owner of the property shall be deemed to be landlord and competent to maintain ejectment application on any ground available to him under the law and even without joining other co-owners as applicants if the ground of ejectment is otherwise available. Relevant excerpt of the judgment is as under: "7. Reverting to the legal position, a bare reading of definition of word "landlord", given under section 2(t) of the Sindh Rented Premises Ordinance, 1979, makes it clear that besides person, who is authorized or entitled to receive rent of the premises, every co-owner of the premises is landlord. Thus, if one co-owner has not let out the property , but some other co-owner or authorized person entitled to receive rent has let out the property , by legal notion every co-owner of the property shall be deemed to be the landlord, and competent to maintain ejectment application on any ground available to him under section 14 or section 15 of the Sindh Rented Premises Ordinance, 1979, even without joining other co-owners as applicants, if otherwi se such ground of ejectment is available to him.
8. In the present case, when on one hand the title/ownership of the petitioner over the disputed property is based on registered lease deed which still holds good and on the other hand status of respondent No.1 as tenant in one of the tenements is also not disputed, irrespective of any pending litigation between the petitioner and his brother or other legal heirs of late Saeed Ahmed, relationship of landlord and tenant is proved/established between the petitioner and respondent No. 1."
In "Anwar Khan v. Abdul Manaf" (2004 SCMR 126) it was observed to the effect that ejectment application could be moved by one landlord and it was not essential to obtain permission in writing from co-landlords/co- owners and that such landlord had locus standi to file ejectment application alone as co-owner of the property , In "Syed Asmat Ullah v. Aman Ullah Khan and 2 others" (1991 MLD 20) it was observed to the effect that mere execution of lease deed by one of the co-owners would not by itself deprive the remaining co-owners of the leap' right that accrued by operation of law and that the execution of lease deed by one co-owner will be mere reaffirmation of the liability of the tenant to pay rent to the owners/landlords of the premises and that the recovery of rent would necessarily be deemed to be for the bene fit of all the owners. In "Saifullah and another v. Ch. Ghulam Ghous"
(2000 CLC 1841 ) it was observed that where no rent agreement existed between the parties, law would presume that persons, who were not owners of the premises and occupied any portion thereof by fiction of law, would be deemed to be tenant in the premises and one of the co-sharers is entitled to initiate ejectment proceedings without impleading other co-sharers. In "Muhammad Essa Godil through L.Rs. and 3 others v. Mst. Sitara Jamil and 2 others" (2014 YLR 1901 ) it was observed that the term landlord will include co-owners and each co-owner would be owner of each and every inch of the property until partitioned and that co-owner will be competent to file ejectment petition with regard to jointly owned property and that the entitlement of the landlord to receive rent could not be questioned nor the tenant could deny ownership and that the tenant was precluded from questioning the title as once a tenant he will always be a tenant. In "Khalique Ahmed v. Abdul Grant and another" (PLD 1973 SC 214) it was observed that a suit for possession could be brought by all the co-owners jointly but in case of action for ejectment one of the owners could sue for possession without joining other co-owners. Same view was expressed in "Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others" (2002 SCMR 429) wherein it was observed that a co-sharer could file ejectment proceedings against the tenant without impleading the co-sharers as any co-sharer could act on behalf of all the co-owners of the property and represent their interest. Excerpt from the judgment is as under:- "8. Even on merits, if the co-sharers succeed to the partition suit demised premis es being part and parcel of the joint property would be partitioned between the co-sharers according to law. Learned counsel relied upon a judgment of this Court in Abdul Ghani v. Abrar Hussain (1999 SCMR 348) in support of his contention but in our view the principle laid down in the precedent case is not attracted in the circu mstances of the case. On the contrary , general rule of law has been that a co-sharer can file ejectment proceedings against a tenant without impleading other co-sharers. The wisdom behind such principle is that, co-sharer acts on behalf of and represents the interest of all the co-owners of the property ."
(emphasis supplied)
11. In the instant case respondent No.3 admitted his status as tenant and respondent No.4 asserted that respondent No.3 was his tenant. The fact, as such, remains that respondent No.4 is tenant and respondent No.4 was a co-owner with the petitioner . The entitlement of the petitioner to receive rent or to seek eviction was similar to that of respondent No.4 in the circumstances. Mere fact that there was estrangement between brothers who were co-sharers in the property or that they were in dispute with each other over partition, the matter could not give any right to the tenant to take benefit inter se co-sharers, as his status as tenant was not disputed and he could not deny tenancy with the petitioner as co-owner , particularly , when respondent No.4 was not claiming any adverse title nor produced any evidence to show that he had any title different from that of the petitioner in the property . The petitioner as co-owner , in view of earlier decisions in the civil litigation and the rules referred supra , was to be deemed as co-landlord in the property and could legitimately initiate the ejectment proceedings.
12. There is substance in the submission of learned counsel for the petitioner that in case respondent No.4 intended to join the proceedings, he could not join as respondent and, at best, he could be associated as co- petitioner And the order of eviction could have been passed jointly against the tenant. Nevertheless the tenant could not be permitted to escape eviction simply because one of the co-owners comes to his rescue, to save him from default, if other grounds are available. In the instant case, the eviction petition was filed on the ground of default and expiry of tenancy . The tenancy being oral and month to month, stood expired. The filing of the eviction petition would be deemed to be notice of eviction and, resultantly , the petitioner was entitled to eviction of the respondent tenant on ground of expiry of the tenancy . The learned forums below acted illegally and without jurisdiction in assuming that despite their findings that the petitioner was a co-owner and that the property was joint between petitioner and respondent No.4 as well as their other brother and sisters, the petitioner would not be deemed to be landlord so as to seek eviction. The view taken by learned Special Judge (Rent) as also by learned Addl. District Judge, being based on incorrect assumption of law is, as such, legall y untenable and the findings are in-consequence declared to be without lawful authority and null and void.
13. For the reasons supra , this Constitutional petition is allowed . The impugned orders are set aside and by allowing the ejectment application filed by the petitioner , respondent No.3/tenant is directed to vacate the rented shop within 60-days from date of this Order and deliver its vacant possession to the petitioner/landlord.