This judgment shall decide the instant petition as well as W.F. No. 60978/2020 titled "Asad Ali v. Special Judge (Rent), etc." as both emanate from a consolidated judgment and order dated 14.10.2020 of the learned Addl.
District Judge, Sialkot.
2. Precise facts from which instant petitions arise are that Respondent N o.3 filed Ejectment Petition against Naveed Akhtar son of Abdul Majeed (petitioner in W.P. No. 60976/2020) seeking his eviction from the shops on grounds of default in payment of rent and violation of terms and conditions of the lease agreement. It was claimed that the shops under reference were occupied by Naveed Akhtar petitioner in the capacity of a tenant who had been paying monthly rent on the basis of a written arrangement dated 30.7.2016, rate of rent at the time of filing of the Ejectment Petition was Rs. 1,500/- per month. and that the petitioner violated the terms of the lease, caused damage to the property and was a willful defaulter . In response, Naveed Akhtar petitioner stated that he had obtained the shops on rental basis during the lifetime of the father of Ghulam Sarwar Bajwa, Respondent No 3; no rent deed was executed with the respondent's father; on his demise, rent was paid to the mother of Respondent No. 3 and that on her demise, the other legal heirs of mother of Respondent No. 3 made some Family Partition in result whereof a small portion of the property fell to the lot of Respondent No. 3; while the shops came to the lot of other legal heirs who allegedly transferred their proprietary rights in favour of one Asad Ali (writ petitioner in connected W.P. No. 60978/2020). Leave to Contest was allowed vide order dated 10.7.2018 by the learned Special Judge (Rent); issues were framed; evidence was recorded and, thereafter , on consideration of the evidence of the parties and the arguments made pro and contra, the learned Special Judge (Rent) decided issue of existence of relationship of landlord and tenant in the affirmative in favour of Respondent No. 3, held the petitioner as defaulter and directed his eviction vide order dated 07.9.2019. Naveed Alditar as well as Asad Ali filed separate appeals against the order of eviction which were dismissed by the learned Addl. District Judge, Sialkot vide consolidated judgment and order dated 14.10.2020. The instant petition has been filed by Naveed Akhtar tenant while the connected petition has been filed by Asad Ali.
3. Main stance of the learned counsel for the petitioners is that the property belon ged to the father of Respondent No. 3; fractional share in the property fell in the lot of Respondent No 3 which was allegedly on the side of the property while the rented shops had allegedly been vested in the other legal heirs who disposed of their rights in favour of petitioner Asad Ali and that cross-suits, one for declaration filed by the Respondent No. 3 and the other for partition filed by Asad Ali, were pending in the Civil Court and that in law the remedy against co-sharer did not allow eviction proceedings and that a purchaser of share of the property becomes a joint-owner and, being so, the status of Asad Ali was that of a co-owner and that as such the Eviction Petition was legally untenable.
4. Contrariwise, learned counsel for the respondent maintained that the relationship of landlord and tenant between Ghulam Sarwar Bajwd, Respondent No. 3, and Naveed Akhtar , petitioner , was admitted; - payment of rent to Respondent No. 3' was also not disputed; execution of document acknowledging the tenancy was not in issue and that even if the stance of Asad Ali, allegedly co-sharer , is considered for the time being yet under the law the right of Respondent No. 3, as co-owner and also as a landlord, to seek eviction could not be questioned and that the findings recorded by the learned forums below were based on correct appreciation of evidence and that no misreading or non-reading could be pointed out.
5. Perusal of pleadings and documents forming part of the ejectment case annexed with these writ petitions reveals that the Eviction Application was filed by Ghulam Sarwar Bajwa, Respondent No. 3, who claimed that the petitioner was inducted in the shops as a tenant by him and that the petitioner also acknowledged the tenancy and further that he had been making payment of rent to Respondent No. 3, therefore, could not negate the relationship of landlord and tenant and that due to default, he was bound to deliver vacant possession to Respondent No. 3.
6. Oral as well as documentary evidence was produced by Respondent No. 3 whereby it was proved that the petitioner was a tenant of Ghulam Sarwar Bajwa who had been paying the rent to him and that petitioner committed default for eight months till the filing of the Eviction Application and that the rate of rent was Rs. 1,500/- per month at the time of filing Eviction Petition. Rent agreement/af fidavit dated 30.7.2016, Exh.A.3 was also tendered in evidence wherein the Petition er Naveed Akhtar had admitted that he was working in the rented shops; and that he was a tenant of Ghulam Sarwar Bajwa, Respondent No. 3, and that he had been paying rent @ Rs.
1,200/- per month to said Ghulam Sarwar Bajwa and that the electricity meter was also in the name of Ghulam Sarwar Bajwa and further he had committed to deliver vacant possession and handover the key to Ghulam Sarwar Bajwa at the time of parting with the possession. Execution of this document was not disputed though the stance taken Was that the same was executed for the purposes of completing formalities of police for record purposes.
Perusal of the statement of Naveed Akhtar , writ petitioner as A.W.I, clearly proved that he admitted to be tenant of Ghulam Sarwar Bajwa, Respondent No. 3, and admitted payment of rent to him after the death of his father . Asad Ali writ petitioner appeared as A.W.2 and claimed that he had purchased the share of other legal heirs of Allah Ditta i.e. father of Respondent No. 3.
7. Due analysis of the evidence as rightly made by the learned forums below , clearly proves that Naveed Akhtar , writ petitioner , did not deny the execution of the rent agreement; payment of rent to Respondent No. 3, Ghulam Sarwar Bajwa; his undertaking to deliver the possession back to Respondent No. 3 at the time of vacation and, in view thereof, the subsequent denial of tenancy was mala fide and impermissible in law. Once a tenant is always a tenant and if he intends to question the title of landlord, he shall have to vacate the premises, restore the possession to the landlord and, thereafter , raise a question of title if he so chosen. Reference can be made to the rule laid down in "Kalimullah v. Amin Hazin and others" (1976 SCMR 77) wherein it was obse rved by the honourable Supreme Court to the ef fect that once a person accepted another as his landlord and entered into the premises, he could not be allowed to challenge the title of his landlord. The findings of the learned Special Judge (Rent) as affirmed in appeal as to the existence of the relationship of landlord and tenant between Respondent No. 3 and the petitioner , could not be shown to be suffering from any misreading or non-reading of evidence or from any error of law .
8. As regards the plea of alleged purchase of share of the other co-sharers by Asad Ali, writ petitioner in the connected writ petition, does not help the tenant to avoid eviction. Even if it is assu med that the other co-sharers in the property had made some transaction in favour of Asad Ali, the fact remai ns that Ghulam Sarwar Bajwa, Respondent No. 3, neither transferred nor sold his share in favour of anyone including Asad Ali; and, being so, he continues to be the owner to the extent of his share in the property and proved through oral as well as documentary evidence that he had rented out the shops to Naveed Akhtar who admitted payment of rent to him and also admitted the execution of Ex.A.3, agreem ent/af fidavit acknowledging tenancy and, being so, as a co-owner , he could seek eviction of the Petitioner Naveed Akhtar on ground of default. It is settled rule that unlike suit for possession where all the co-owners need to be associated either as plaintif fs or defendants, it is not necessary to associate other co-sharers in eviction proceedings and as one of the co-landlords by co-owners could seek eviction of the tenant without impleading the other co-owners or associating them in the proceedings. Reference in this regard can be made to the rule in "Khalique Ahmed v. Abdul Grant and another" (PLD 1973 SC 214) where it was observed to the effect that a suit for possession could be brought by all co-ow ners jointly but in case of suit for ejectment, one of the owners could sue for possession without joining other co-owners. In view of the settled rule, the learned Special Judge (Rent) as well as the learned Addl. District Judge rightly observed that the Ejectment Petition was maintainable, the Petitioner Naveed Akhtar was proved to be a tenant of Respondent No. 3, Ghulam Sarwar Bajwa, and that his admission of the payment of rent to him was sufficient to establish relationship of landlord and tenant and that Respondent No. 3 was competent to sue the petitioner for eviction and seek his ejectment without associating other co-owners in the ejectment proceedings. Reference can also be made in this respect to "Muhammad Hanif and another v. M Jamil Turk and 5 others" (2002 SCMR 429) where the honourable Supreme Court observed to the effect that a co-sharer could file ejectment proceedings against the tenant without impleading other co-sharers.
9. An attempt was made to question the validity of eviction order by raising a plea that the co-sharer could not dispossess the other co-sharer and that the remedy would lie in a suit for partition; but this plea was not available in the facts of the present case as it was not a case in which a co-sharer was seeking ejectment of the other co- sharers nor Naveed Akhtar , the tenant writ petitioner was a co-sharer or even claimed to have purchased any share from any of the co-owners in the property . His status throughout being a tenant and the status of Respondent No. 3 being co-owner landlord was undisputedly proved from the evidence on record. In such circumstances, the objection raised was untenable. In "Saifullah and another v. Ch. Ghulam Ghons" (2000 CLC 1841 ), it was observed that where one of the heirs successfully established his ownership alongwith the other co-sharers, the tenant never claimed to be the owner of the premises or to have purchased the same from, either the original owner or subsequent transferee, the tenant in the circumstances will be occupying the premises in no other capacity except as a tenant of the original owner and that after his death, the legal heirs of the original owner . In view of the rule, it was rightly observed by the learned forums below that the petitioner could not claim any status other than that of a tenant. Being a tenant, he was bound to continue payment of rent to Ghulam Sarwar Bajwa, Respondent No. 3, and his act of stoppi ng payment of rent and committing default for more than eight months, rendered him liable to eviction as rightly allowed by the learned forums below .
10. In so far as the connected writ petition filed by Asad Ali is concerned, he claimed to have purchased the share of other legal heirs of Allah Ditta and filed a suit for partition. If this is so, he should pursue the remedy already available to him. In any case, in eviction proceedings initiated by Respondent No. 3 as landlord against his tenant, the writ petitioner was not a necessary or proper party and, therefore, his application for impleadment was rightly declined. The fact that the suit for partition has been filed, shows that property had not been partitioned either under the decree of the Court or under any family settlement, as it was denied by Ghulam Sarwar Bajwa, Respondent No. 3, in his suit for declaration. Mere pendency of any civil litigation for partition of property could hardly be a reason to protect the tenant from eviction due to default. The oral and documentary evidence on record as taken note of by the learned Special Judge (Rent) as also the learned Appellate Court, shows that it was proved beyond any shadow of doubt that Naveed Akhtar was a tenant of Ghulam Sarwar Bajwa who executed a rent agreement in his favour , admitted payment of rent to him and, in view of such evidence, Respondent No. 3 was legally eligible to seek eviction of Naveed Akhtar . The learned Addl. District Judge, therefore, rightly dismissed the appeal of Asad Ali. Orders passed by the learned forums below do not suffer from any error of law or jurisdiction as to call for interference in Constitutional jurisdiction.
11. For the reasons recorded above, both writ petition Nos.60976/2020 and 60978/2020 are devoid of merit and are, accordingly , dismissed .