ANWAAR HUSSAIN, J. The controversy involving the instant lis, though emerging out of eviction petition under the Punjab Rented Premises Act, 2009 (hereinafter the Act, 2009"), finds its genesis in one of the inherited properties of one Abdul Salam, (hereinafter "the deceased"), who left behind two sons, namely, Abdul Sattar and Abdul Rehman, the latter being the petitioner, and one daughter, namely, Surayyia Ijaz, being arrayed as respondent No 3, who filed eviction petition against the petitioner. The rented premises is one of the shops forming part of a plot bearing PTO No.78296 dated 27.03.1979 (hereinafter "the property') left by the deceased. Respondent No. 3 claims to have been owner of the shop on the basis of private family settlement (Exh-A2) purportedly executed by and between the legal heirs of the deceased on 09.03.2005 (hereinafter "the private family settlement"). Subsequently, as per contention of respondent No.3, through a tenancy agreement dated 22.03.2014 (Exh-A3, which is hereinafter "the tenancy agreement"), she inducted the petitioner as her tenant in the rented premises and failure on part of the petitioner to pay the agreed amount of rent, qua occupancy of the rented premise, constrained respondent No. 3 to initiate eviction proceedings, in accordance with the Act, 2009, in which the petitioner filed a reply that was treated as application for leave to contest by learned Rent Tribunal. Relationship of landlord and tenant was denied by the petitioner. Leave to contest was allowed. Resultantly, issues were framed and through the impugned order dated 05.09.2015, the learned Rent Tribunal, Rajanpur, allowed the eviction petition, filed by respondent No.3, which findings were upheld by the learned Appellate Court below vide impugned judgment dated 16.11.2015. The instant constitutional petition has been filed by the petitioner laying challenge to the concurrent findings of the forums below.
2. Learned counsel for the petitioner submits that the petitioner is not a tenant of respondent No.3 and the documents produced before the learned Rent Tribunal when read in conjunction with the contents of the eviction petition brings forth serious contradictions in the stance of respondent No.3 inasmuch as in her eviction petition, respondent No. 3, in paragraph No.2 thereof, has herself stated that the private family settlement was overridden by a subsequent family settlement and it was under the later arrangement that the rented premises fell in the share of the respondent No. 3 in respect whereof, the tenancy agreement was executed but no such fresh family settlement or arrangement has been brought on record. Adds that similarly, description of the rented premises in the tenancy agreement and the shop falling in the share of respondent No. 3 under the private family settlement is different without any plausible explanation and therefore, there is no tenancy relationship between the petitioner and respondent No.3, which fact has escaped judicial notice of the learned courts below. Further avers that as a co-owner of the property of which the rented premises is part, respondent No. 3 had a recourse available to her to file a suit for partition and claim mesne profit but cannot invoke jurisdiction of the learned Rent Tribunal under the Act, 2009.
Finally, refers a suit for partition filed by respondent No.3 against the petitioner as well as other stakeholders qua property left by grandfather of the petitioner as well as respondent No.3 and other stakeholders to contend that mere institution of the said suit substantiates that proper partition of the properties left by the deceased including the rented premises has not been effected and hence, in such eventuality the eviction petition is not even maintainable.
3. Conversely, learned counsel for respondent No. 3 submits that the assertions of petitioner are misconceived inasmuch as respondent No.3 was only obligated to prove execution of the tenancy agreement, which the petitioner had denied and this burden has been duly discharged by respondent No.3 by producing required number of witnesses. Adds that perusal of the plaint of the suit instituted by respondent No.3, for partition of remaining property of predecessor-in-interest of the parties clearly indicates that not only the rented premises but the property, of which the rented premises is part, has not been included in the said suit since the same was already partitioned through private family settlement, therefore, the same was past and closed transaction and respondent No.3 has clearly proved her title to the suit property and also the execution of the tenancy agreement. Places reliance on "Shajar Islam v. Muhammad Siddique and 2 others" (PLD 2007 SC 45) as well as "Mrs. Azra Riaz v. Additional District Judge and others" (202I CLC 623 Lahore) to support his contentions and conclude that the learned fora below have rightly rendered the impugned findings.
4. Arguments heard. Record perused.
5. The sole legal question involved in the matter to be examined by this Court is whether the eviction petition by a co-owner of the property, without partition by metes and bounds, against another co-owner is maintainable more particularly when the said partition has not been proved in accordance with law.
6. It would be imperative to observe that it is settled proposition of law that co-owners of a particular property are owner of each and every inch of the joint property as long as the same is partitioned either privately or through the recognized legal modes, as the case may be. In the instant case, it has been argued on behalf of respondent No.3 with much vehemence that the partition through the private family settlement has been effected, inter se, the parties and has become past and closed transaction and cannot be retracted or allowed to be impeached directly and/or indirectly. There is no cavil to the proposition that a family settlement and partition can be reached at privately by the parties and courts of law have recognized such private partition, however, same requires some degree of recognition under the law or through the conduct of the parties. Guidance in this regard can be sought from case titled as "Allah Dad and 3 others v.
Dhuman Khan and 10 others" (2005 SCMR 564) in which the august Supreme Court has held as under: "11....It is to be seen that the object behind the family settlement is always to settle existing or future dispute of the property amongst the members of family and to create goodwill and avoid future disputes between the successor in interest. The bona fide transaction of family settlement would be binding on the parties and if the settlement by conduct of parties, is capable of receiving constant recognition for a long time, the right to assert under the agreement must not be subsequently allowed to be impeached and courts may not reject the family settlement on technical grounds."
(Emphasis Supplied)
Having highlighted the importance of a family settlement receiving constant recognition by the conduct of the parties, it is imperative to note that there is also no cavil to the proposition that it is not necessary for the landlord to be landowner in order to establish tenancy relationship, however, the instant case is neither a usual case of dispute between the two co-owners qua their joint property forming part of a settlement nor simple eviction proceedings initiated by one co-owners of the rented premises against a third party (a tenant) on the basis of family settlement, rather it is a case where one of the co-owners asserts herself to be the exclusive owner of the rented premises as well as landlady thereof, on the basis of the private family settlement, which admittedly was later rescinded by the tenancy agreement and it is on the strength of the subsequent tenancy agreement that the said co-owner (respondent No.3) is seeking eviction of another co-owner (the petitioner), therefore, in the instant case, veracity of both the private family settlement as well as the tenancy agreement is to be carefully ascertained in order to reach a just conclusion.
7. Since it was respondent No.3 who had invoked the jurisdiction of the learned Rent Tribunal, in view of the peculiar features of the case it was obligatory upon her to have proved the existence as to the factum of the relationship of landlady and tenant between herself and the petitioner, by first establishing the genuineness of private family settlement followed by its rescission through the execution of the tenancy agreement and settlement and payment of rent in furtherance thereof.
Therefore, before proceedings further, it is imperative to examine the description of the property left by the deceased including the rented premises as per the private family settlement which reads as under: Whereas in para 2 of the eviction petition, respondent No.3 stated as under: Thus, it is the stance of respondent No. 3 herself that the private family settlement was overridden by sonic fresh settlement agreement. This, would, as per her own averment, has the effect of rescission of the private family settlement, hence, the same is no more in the field and it lost the long standing recognition of the parties through their conduct, if any and hence, of no legal significance in terms of the dicta laid down in case of Allah Dad supra. Even otherwise, putting para No.2 of the eviction petition in juxtaposition with above referred portion of the private family settlement reveals that not only it is the stance of respondent No 3 herself that the private family settlement was overridden by some fresh settlement agreement but there is material contradiction qua the number of shops forming part of the property left by the deceased. In the private family settlement the total number of shops are recorded as three (03) whereas in the tenancy agreement as well as the eviction petition, same have been mentioned as five (05).
Moreover, it is also unclear as to how the property number assigned to the rented premises in the private family settlement was changed from Shop No. 2 to Shop No.5 in the tenancy agreement.
Both these facts raise serious doubts as to veracity of the claim of respondent No.3 qua which no explanation is available in the tenancy agreement or the eviction petition. In this regard, learned counsel for the petitioner submits that the petitioner further partitioned one of the three shops given to him. under the private family settlement, into two portions and in this manner the number of shops were rearranged, which argument too fails inasmuch as the sub-division of the shop belonging to the petitioner under private family settlement, into two portions, will make the total number of shops 04 and net 05 as per the contents of the eviction petition. It is also imperative to note that as regards the fresh partition/settlement agreement, neither in the pleadings it has been stated as to whether the same was oral or written nor any evidence, oral or documentary, has been produced to prove the same. When confronted, learned counsel for respondent No.3 tried to explain the anomaly by stating that the tenancy agreement embodies the dual nature of being the fresh family settlement as well as the tenancy agreement. As per the established canons of construction of documents/agreements, the heading or the title of a document is not the exclusive or sole factor for determining the nature of a document rather the doctrine of pith and substance can be applied for determining the nature of such document. In the instant case, perusal of tenancy agreement brings it to the fore that not only the title of the agreement but the contents of the agreement also indicate that the same has been executed as a tenancy agreement albeit improperly and vaguely referring to the title of respondent No.3 as well as the description of the rented premises and hence, cannot be construed as a private or family partition/settlement as no clause to his effect has been embodied therein, therefore, the argument fails to hold much water and falls through. Even otherwise, the argument fails to gain any traction from another perspective as the private family settlement was purportedly executed between the two brothers and the sister whereas the tenancy agreement has been executed between the petitioner and respondent No.3 and the third stakeholder (Abdul Sattar or his legal heirs who is the third child of the deceased) is not a party to the purported tenancy-cum-family settlement agreement. Similarly, no evidence has been produced in this regard as to show that the later and/or subsequent settlement has been executed upon by the implied or explicit conduct of the parties. Hence, even if it is assumed that the private family settlement is of legal force, respondent No.3 could not establish that the tenancy agreement on the basis of which she invoked the jurisdiction of the learned Rent Tribunal was in furtherance of the same with slight overriding effect qua the number of the rented premises.
8. The above mentioned discussion takes this Court to the kernel of the dispute which is to examine whether the tenancy relationship existed between the petitioner and respondent No.3 in respect of the rented premises envisaged under the tenancy agreement. Respondent No. 3 has produced the private family settlement as Exh-A2 and tenancy agreement as Exh-A3 as documentary evidence and also produced AW-1 to AW/3 in the witness box including herself (AW-1). While AW-3 is the marginal witnesses of the tenancy agreement whereas AW-2 is the identifier and husband of respondent No. 3 and not the marginal witness of the tenancy agreement. The second marginal witness of the tenancy agreement namely, Ihsan Ullah son of Muhammad Anwar has not been produced and no explanation in this regard has been furnished. Perusal of the tenancy agreement shows that the stamp paper used for the preparation of the tenancy agreement has been issued by Sultan Mehmood/stamp vendor. AW-1 stated during the cross-examination that the tenancy agreement was written by said Sultan Mehmood. The evidence of Sultan Mehmood being the stamp vendor as well as the scribe of the tenancy agreement is pivotal to the case of respondent No. 3, who has neither been produced nor summoned through the process of the trial court.
Similarly, it has been noticed that Riaz Ahmed and Abdul Hameed, both sons of Chaudhary Abdul Latif as well as above referred Ihsan Ullah were the mediators who purportedly helped the parties to reach the private family settlement. These persons in general and Ihsan Ullah in particular were also never produced. In-fact, beside the scribe and stamp vendor of the document, namely, Sultan Mehmood, and said Ihsan Ullah were the main witnesses inasmuch as the latter is the only witnesses who attested both the private family settlement as well as the tenancy agreement. Both these persons were never produced without any explanation and in this manner, the best evidence has been withheld, which results in drawing adverse inference against respondent No. 3.
9. Having analyzed the evidence on record hereinabove, it can be easily inferred that an unproven and unsubstantiated tenancy agreement cum family settlement cannot be made basis of eviction proceedings against the petitioner who is admittedly the co-owner. In this regard, this Court is fortified by the ratio laid down in case of "Mirza Adam Khan v. Muhammad Sultan" (PLD 1975 SC 9), where a dispute arose as to whether a co-owner who is in possession of the property in excess of his share and who is recorded as a tenant of excess portion could be ejected from the premises under the provisions of the Urban Rent Restriction Ordinance, 1959. The august Court answered in negative in the following manner: it is submitted by the learned counsel for the respondent that the status of the appellant is to be determined by the true nature of his tenure as a person who has inherited the property under the Muslim Law and not by the extraneous factors of paying rent to another co-owner or to the receiver, or the fact that the Commissioner appointed in the partition suit determined the rental value of the portion of the property occupied by the appellant.
We are inclined to agree with this submission. We think that the High Court has rightly observed that on the death of a Muslim intestate his estate devolves upon his heirs who succeed to it in specific undivided shares in proportion to their inheritance, and each heir becomes the owner of a definite fraction of every part of the estate until partition takes place. A co-owner does not therefore become a tenant of the other owners, simply by being in possession of property in excess of his own share, and he would, therefore, be liable to pay compensation to the other co- owners for the excess occupied by him. In this view of the matter he does not become a tenant, and no question would arise of taking proceedings against him under the Rent Restriction Ordinance. In this position as co-owner and judgment-debtor, he is liable to be dealt with under rule 95 of Order XXI."
(Emphasis Supplied)
Similarly, in case reported as "Rehmatullah v. Ali Muhammad and another" (1983 SCMR 1064), the Hon'ble apex Court held that if the relationship between the parties is such that it cannot be decided without first determining the landlord's title, then the matter may be decided against the landlord who may be asked to approach the appropriate forum to first determine the question of his title as the Rent Tribunal is not competent to decide the question of title.
10. This Court is mindful of the legal position that in exercise of constitutional jurisdiction, utmost reluctance should be exercised to interfere in the concurrent findings rendered by the forums below, however, the said rule is neither an invariable nor an absolute norm, rather the same is subject to the overarching principle that interference can be made in concurrent findings where such findings are perverse and are likely to result in miscarriage of justice. In the instant case, both the forums below have erred in appreciating the material evidence available on record and adjudicating the actual controversy between the parties in its true perspective as the above referred analysis of evidentiary resume of the case, in the light of pleadings of the parties and the arguments advanced at bar, amply clarifies that respondent No. 3 fell short of discharging the onus to prove tenancy relationship between herself and the petitioner or even her exclusive title to the rented premises to bring her case in the purview of the cases relied upon by the learned counsel for respondent No.3 including case of Shajar Islam supra. On the contrary, it is admitted on both hands that the rented premises fell within and formed part of the property inherited by the petitioner and respondent No.3 along their brother Abdul Sattar (late). It is uncertain whether the private partition has been effected through the private family settlement and recognized by the parties or not as respondent No.3 herself admits that the private family settlement has been rescinded and/or overridden and in the absence of fact that the private family settlement is proved in accordance with law, question of execution of tenancy agreement between the parties as co-owners does not arise. Therefore, eviction petition by respondent No.3, being a co-owner of inherited property, on the basis of private family settlement without proving the same, against another co-owner (the petitioner) was not even maintainable before the learned Rent Tribunal under the provisions of the Act, 2009. Having observed so, it should not be apt to further comment on this aspect lest the case of the either of the parties be prejudiced as the partition through the private family settlement is neither a fact-in-issue in the instant lis nor it can be in the eviction petition as it would be beyond the jurisdictional scope of eviction proceedings, under the Act, 2009, to indirectly or obliquely sanction or otherwise discard a private family, settlement.
11. In view of the what has been discussed above, the instant writ petition is allowed and the impugned findings of the learned Rent Tribunal as well as the Appellate Court below are set aside.
12. Before parting with, it is clarified that respondent No.3, who is admittedly co-owner of the property left by the deceased of which the rented premise is part, may avail alternate remedies available to her under the law, inter alia, by instituting suit for recovery of possession of her lawful share in the property as well as the mesne profits thereof and if such proceedings are initiated by respondent No.3 under the law, observations and findings of this Court in the present constitutional petition shall not adversely affect the said proceedings.