AHMAD NADEEM ARSHAD, J. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has called in question the validity and legality of judgment/order and memo of cost dated 23.09.2021 passed by the learned Special Judge Rent, whereby the ejectment petition of respondents Nos. 3 to 5 was allowed and the judgment and memo of cost dated 11.06.2022 passed by the learned Appellate Court, whereby appeal preferred by the petitioner was dismissed by upholding the judgment of learned Special Judge Rent.
2. Inessential details apart, respondents Nos.3 to 5 (hereinafter referred to as "respondents") filed an ejectment petition against the petitioner with regard to property No.114/W.9.M where the petitioner is running his business in the name and style of "Dehli Motor Workshop" situated at LMQ Road Nawan Sher, Multan, (herein after referred to as "rented premises") by contending that earlier their predecessor namely Muhammad Saleem Khan son of Abdul Rauf Khan was owner of the rented premises and after his demise the respondents inherited the said premises; that in the life time of their predecessor (Muhammad Saleem Khan) the present petitioner obtained the rented premises from him vide tent agreement dated 22.02.1986; that on 11.10.1986 predecessor of respondents filed an ejectment petition against him titled as "Muhammad Saleem Khan v. Mistri Shahid Karim" wherein he submitted written reply subsequently said ejectment petition was decided on the basis of compromise between the parties on 08.10.1987; that in the light of said compromise petitioner remained paying rent to their predecessor and after his demise to the respondents; but he stopped to pay rent since the month of October, 2014 which constrained them to file ejectment petition and prayed for acceptance of their ejectment petition by seeking eviction of the petitioner from the rented premises on the ground of default of rent and expiry of tenancy agreement. They also prayed for recovery of outstanding rent from the month of October, 2014, till handing over the vacant possession of rented premises. The petitioner appeared before the court and filed an application for leave. to contest in shape of written reply wherein he denied the relationship of landlord and tenant. The said application was allowed by the learned Special Judge Rent, consequently leave to defend was granted. Learned Special Judge Rent framed necessary issues keeping in view the divergent pleadings of the parties and invited them to produce their respective evidence. After recording evidence of the parties pro and contra, learned Special Judge Rent allowed the ejectment petition vide judgment and memo of cost dated 23.09.2021 in the following terms:- "The instant ejectment petition is allowed to the effect that the respondent is directed to vacate the disputed rented premises within 30 days. The ejectment petitioners shall be entitled to recover the outstanding rent amount till vacation of the rented premises from the respondent as prayed for. No order as to costs. Before parting with this order, it is pertinent to mention here that findings given above are only to the extent of instant ejectment petition and shall not prejudice any civil litigation pending among the parties."
Feeling aggrieved, petitioner preferred an appeal which was dismissed by the learned Appellate Court via judgment and memo of cost dated 11.06.2022. Hence, this Writ Petition.
3. Learned counsel for the petitioner argues that the impugned judgments and memos of cost of learned courts below are against facts and law, result of mis-reading and non-reading of evidence led by both the parties; that the findings of learned Courts below are contrary to law as defence of the petitioner in the ejectment petition, subject matter of this writ petition, is that he is co-owner of suit property and alleged relationship of landlord and tenant between the parties is not in existence, whereas the version of respondents is that petitioner is their tenant on the basis of rent agreement dated 22.02.1986, therefore, in the light of denial of petitioner with regard to tenancy, the respondents were under obligation to produce original agreement of rent in evidence but they failed, likewise they were to produce Stamp Vendor of said document who allegedly issued the stamp paper of rent agreement and Scribe who allegedly scribed the same and the marginal witnesses whereof as well but nothing was produced in evidence in this regard; that prior to the filing of ejectment petition the respondents in the year 2010 instituted a suit for declaration, recovery of possession under Section 8 of the Specific Relief Act and recovery of mesne profit, which was dismissed by the learned trial court on 28.07.2012 and they filed revision petition before the learned District Judge, which was dismissed as withdrawn on 28.08.2015, therefore, the respondents themselves stated that the petitioner is no more their tenant but the learned Courts below failed to consider this aspect while passing the impugned judgments and memo of costs; that the respondents also instituted a suit for partition of property on 27.01.2016 against the petitioner as well as other co-owners wherein they categorically stated that the property of parties is joint and the petitioner's share is measuring 02-marla 20-yards but he is in possession excess of his ownership; that at the time of filing of ejectment petition the respondents did not disclose the previous litigation in shape of suit for declaration, recovery of possession and mesne profits and suit for partition which is still pending adjudication, therefore, the respondents failed to prove the alleged relationship of landlord and tenant between the parties and it was incumbent upon the learned courts to dismiss the ejectment petition but the learned courts below accepted the same in hasty manner and lastly prayed for acceptance of this writ petition.
4. Conversely, learned counsel representing the respondents has vehemently opposed the arguments advanced by the learned counsel for the petitioner and supported the concurrent findings of learned courts below by arguing that the respondents fully proved their relationship of landlord and tenant; that as petitioner denied existence of relationship of landlord and tenant so when such relationship was proved then default in payment of rent also stood proved and while relying upon "Mrs. Azra Riaz v. Additional District Judge and others" (2021 CLC 623) and "Naveed Akhtar v. Special Judge (Rent), Sialkot and 2 others" (2021 CLC 952) prayed for dismissal of the instant writ petition.
5. I have heard the arguments advanced by the learned counsel for the parties at length and also gone through the record minutely with their able assistance.
6. The basic controversy formulated in shape of issue No. 1, is with regard to relationship of landlord and tenant and the onus to prove said issue was placed upon the respondents. The ejectment petitioner No. 3 (Aftab Saleem) appeared in the witness box as AW-1, Adnan Zafar as AW-2 and Muhammad Najaf Khan as AW-3. All these three witnesses submitted their affidavits as Exh.A-1 to Exh.A-3 respectively. Through their affidavits they reiterated the facts as pleaded in the ejectment petition. In documentary evidence they produced copy of ejectment petition filed by their predecessor namely Muhammad Saleem Khan as Exh.A-4, attested copy of written reply as Exh.A- 5, attested copy of replication as Exh.A-6, attested copy of issues as Exh.A-7, attested copy of order sheet as Exh.A-8, attested copy of map of property as Exh.A-9, attested copy of compromise deed dated 08.10.1987 in ejectment petition as Exh.A-10, attested copy of rent agreement dated 22.02.1986 as Exh.A-11, attested copy of record of rights as Exh.A-12 and attested copy of 'copy-form' as Exh.A-13. On the other hand, the petitioner himself appeared in the witness box as RW-l. In documentary evidence he produced his affidavit as Exh.R-1 as well as other documents as Exh.R-2 to Exh.R-50 comprising of registered sale deeds and previous litigation etc. between the parties.
7. Pulse of the case is that whether any relationship of landlord and tenant existed between the parties or not? The petitioner in his application for leave to contest in shape of written reply pleaded that rented premises along with other properties belonged to predecessor of respondents namely Abdul Rauf Khan son of Wali Muhammad Khan, who transferred his entitlement to his four sons namely Muhammad Aslam Khan, Muhammad Saleem Khan (Predecessor of respondents), Muhammad Azam Khan and Zafarullah Khan through different sale deeds and produced copies of said sale deeds as Exh.R-2 to Exh.R-5. Thereafter said four sons of Abdul Rauf Khan transferred 1/9 shares in the total properties to their sister Mst. Altaf Bibi through registered Tamleek deed dated 09.01.1979 (Exh.R-31). Copy of sale deed dated 28.12.1978 in favour of Muhammad Saleem Khan, predecessor of respondents, was brought on record as Exh.R-3. Perusal of said sale deed (Exh.R-3) it appears that Abdul Rauf Khan transferred shares in different khata numbers, total measuring 14- marlas in favour of Muhammad Saleem Khan and it cannot be ascertained from said sale deed that whether the rented premises was included in the said sale deed or not. The ownership of respondents in the khata where rented premises situated is not an issue between the parties and there is no necessity for a landlord to prove that he was owner of the rented premises, as it is a settled proposition of law that a landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties, therefore, there is no need to go into any further details with regard to ownership. However, it is established on record that respondents were owner in the khata where the rented premises is situated (Exh.A-12/Exh.R-47).
8. Although petitioner took a plea that his father Abdul Karim got the rented premises on rent from Abdul Rauf Khan but he failed to prove his assertion through any documentary evidence. The petitioner in his application for leave to contest admitted the stance of the respondents that their predecessor Muhammad Saleem Khan filed an ejectment petition against him which was concluded in shape of compromise. The learned Courts below while deciding the ejectment petition based their findings upon said proceedings and concluded that relationship of landlord and tenant existed between the parties.
9. From perusal of record it appears that predecessor of respondents namely Muhammad Saleem Khan filed an ejectment petition against the petitioner titled as "Muhammad Saleem Khan v.
Mistry Shahid Karim" on 11.10.1986 (Exh.A-4) whereby, he claimed that petitioner got the rented premises through lease agreement dated 22.02.1986 (Exh.A-11). Along with the ejectment petition he annexed rough site plan as Exh.A-9. From perusal of ejectment petition (Exh.A-4), lease agreement (Exh.A-11) and rough site plan Exh.A-9 it appears that the same description of the rented premises was given against which instant ejectment petition has been filed. Petitioner filed contesting written reply on 12.02.1987 (Exh.A-5). Predecessor of the respondents filed replication (Exh.A-6). During the proceedings of said ejectment petition, parties of said ejectment petition arrived at compromise and placed compromise deed dated 08.10.1987 as Exh.C-1 which was brought on record as Exh.A-10. In the light of said compromise, ejectment petition was disposed of on 08.10.1987 (complete order sheet/Exh.A-8). In Exh.A-10 petitioner while accepting the relationship of landlord and tenant with Muhammad Saleem Khan (predecessor of the respondents) maintained that he will pay rent of the workshop amounting to Rs. 1000/- per month regularly in advance before 5th of every month through duly acknowledged receipt; that he will not sublet the workshop; that after every two years from today the rent will be enhanced at the rate of 15 percent.
The petitioner got recorded his statement as RW-1 and during cross examination admitted that predecessor of the respondents filed an ejectment petition against him which was decided on the basis of compromise. He also admitted that through compromise it was settled that he will pay the rent regularly to predecessor of the respondents. He also admitted it correct that the ejectment petition of respondents was with regard to the same property against which predecessor of the respondents filed ejectment petition.He also admitted that he did not purchase any portion from the rented premises from predecessor of the respondents or from respondents. He also admitted it correct that the possession of the rented premises is with him since 1986. His exact deposition is as under:- From scanning of said evidence it is established that relationship of landlord and tenant was existed between petitioner and the predecessor of respondents. After demise of Muhammad Saleem Khan, the respondents step into his shoes and became landlord of the petitioner. For reference "Rehmat Ghani v. Taimur Khan and 6 others" (2018 CLC Note 109 at page 97). In case titled as "Ghulam Mustafa and another v. Mst. Muhammadi Begum and another" (1990 CLC 246) it was held that where a tenant, in first round of litigation, admitting execution of rent deed and payment of rent to landlady, could not, in second round of litigation, put up plea of non-existence of relationship of tenancy. The Peshawar High Court also taken the said view in case titled "Habib Khan v. Haji Haroon-ur-Rashid" (1989 CLC 783) by observing that "another important factor which negatives the plea of tenant/respondent regarding the joint ownership of the suit property is that all along in the previous litigation, he never raised the plea of joint ownership but positively admitted himself to be tenant of the suit shop under the appellant as is clearly mentioned in the order of the Tehsildar, copy Exh. P.W.1/7. This plea of the tenant/respondent being an afterthought, cannot be entertained. Once he acknowledged himself to be tenant of the appellant in the suit shop the principle of estoppel as enunciated in Section 116 of the since repealed Evidence Act as reincorporated in Art.115 of Qanun-e-Shahadat, 1984 comes into play debarring the tenant/respondent to deny the title of his landlord." The learned Courts below keeping in view the evidence available on the record rightly concluded that relationship of landlord and tenant existed between the parties.
10. So far as the other claim with regard to outstanding rent from the month of October, 2014 till vacation of rented premises is concerned, since the relationship of landlord and tenant has been established by the respondents and the petitioner failed to rebut it, therefore, the learned Courts below rightly declared that in presence of relationship of tenancy between the parties, respondents are entitled for outstanding rent as claimed for.
11. The petitioner claimed that he had purchased some properties from different persons in the joint khata where the rented premises situate, and in this way he became co-sharer in the said khata, hence, ejectment petition is not maintainable. Further maintained that in this regard suit for partition between co-owners is also pending adjudication, therefore, he cannot be evicted on the basis of rent agreement (referred supra) till the final adjudication of partition proceedings.
Admittedly the rented premises exist in Khata No.243 Mouza Taraf Ismaeel. Multan. Petitioner purchased six yards from Muhammad lmran Khan through registered sale deed dated 10.10.2000 (Exh.R-32), 12 yards from said vendor through registered sale deed dated 05.08.2000 (Exh.R-33) one marla from Moazzam Kamran Babar through registered sale deed dated 14.10.2000 (Exh.R-34), one marla 10 yards from Najia Bibi through registered sale deed dated 06.03.2002 (Exh.R-35), 09 yards from Qayyum Nawaz Khan through registered sale deed dated 01.02.2003 (Exh.R-36), one marla 22 yards from Hameeda Bibi through registered sale deed dated 12.04.2022 (Exh.R-37), 10 square yards from Hameeda Bibi through registered sale deed dated 11.04.2022 (Exh.R-38), 18 square yards from Saeeda Parveen etc. through registered sale deed dated 31.08.2000 (Exh.R-39) and his suit for specific performance against Muhammad Umer Farooq Khan son of Muhammad Aslam Khan with regard to 02-marla 13-yards is still pending before the learned Civil Court (Exh.R-41 to Exh.R-43) but it is also matter of record that the petitioner never purchased any specific portion from Saleem Khan or his legal heirs and said fact was also endorsed by him during cross-examination. From the record it appears that tenancy created between the petitioner and predecessor of respondents in the year 1986 through lease agreement dated 22.02.1986 (Exh.A-11) whereas the petitioner started purchasing shares in khata No.243 from different owners in the year 2000 and onwards, therefore he cannot claim himself to be co-owner in the rented premises on the basis of said sale deeds.
12. If a person at the very inception acquires possession of an immovable property as a co-owner, obviously according to the general principle of civil law, he cannot be dispossessed from such premises without proper partition proceedings and a decree/order of a competent court in that regard. But where a person enters upon the premises as a tenant under one of the co-sharer of the property, he continues to be a tenant till such time either the tenancy is terminated by an expressed agreement between the landlord and tenant or he surrenders the possession. However, if during the subsistence of tenancy, a tenant purchases a share from a co-owner, his status as a tenant does not cease to exist. Tenant during subsistence of tenancy, cannot question title of landlord as it stood at commencement of tenancy. If he desires to question, he must first surrender possession to landlord and then may dispute his title. The august Supreme Court of Pakistan in a case "Kalimullah v. Amin Hazin and others" (1976 SCMR 77) observed that once a person accepted another as his landlord and entered into premises, he could not be allowed to challenge the title of his landlord. The august Supreme Court of Pakistan in a case titled "Province of Punjab though Education Secretary and another v. Mufti Abdul Ghani" (PLD 1985 Supreme Court 1) held as under:-- "Under the general law broadly speaking a tenant during the subsistence of the tenancy, cannot question the title of the landlord as it stood at the commencement of the tenancy. If he desires to do so, he must first surrender the possession to the landlord and then may dispute his title. If he fails to observe this rule, then under section 111 (g)(2) of the Transfer of Property Act also, his right to tenancy itself would be forfeited on observance of certain procedural and other conditions."
The Hon'ble Supreme Court of Pakistan in a case titled as "Nazir Ahmad v. Mst. Sardar Bibi and others" (1989 SCMR 913), where tenant took a plea that he became co-sharer in the demise premises after purchasing a share therein, thus, ejectment petition was not maintainable against him, dismissed his contention by holding as under:- "We have heard the learned counsel for the petitioner at considerable length and are of the view that as per the record the findings of the Courts below are unexceptionable. The learned counsel for the petitioner here before us admitted that the petitioner entered into the shop in dispute as a tenant under the respondent at a monthly rent of Rs. 40 which was subsequently enhanced to Rs.60. He also admitted the execution of the rent deed. In view of this clear and categorical admission, the petitioner, notwithstanding the purchase by him of a certain share from the disputed property, could neither challenge the status of the respondent as landlady qua the suit property nor the existence of relationship of landlord and tenant between the parties. Therefore, under no circumstances the petition for ejectment of the petitioner could be said to be incompetent and the Courts below were justified in holding so. Since the evidence produced by the petitioner at the trial to rebut the grounds in the ejectment petition was insufficient, so it cannot be said that the Courts below have decided the case wrongly."
Said dictum was followed by august Supreme Court of Pakistan in a case "Ghulam Mustafa and others v. Mst. Muhammad Begum and others" (1991 SCMR 432). The Hon'ble Supreme Court of Pakistan in a case titled "Madrissa Darul Uloom Al-Bagiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court) and another" (PLD 1992 Supreme Court 401) observed that where a tenant was inducted under a written agreement, could not challenge the title of the landlord without first surrendering the possession to him, however, he could seek his remedy from the Civil Court of competent jurisdiction. This dictum was followed by the august Supreme Court of Pakistan in another case titled "Irshad Ahmad and others v. Allah Ditta and others" (1998 SCMR 948) by observing that "law is fairly well-settled that a tenant during the subsistence of the tenancy cannot question the title of his landlord as it existed at the commencement of the tenancy. He must first surrender the possession to the landlord and then may dispute his title."
A person entering premises as tenant cannot be permitted to deny that status as estoppel under Article 115 of Qanun-e-Shahadat Order, 1984 would operate and principle "once a tenant always a tenant" would apply. Once relationship of tenancy is proved, at once Article 115 of Qanun-e- Shahadat Order, 1984 will come into play. In Nazir Ahmad's case, supra, a five-learned member Bench of august Supreme Court of Pakistan applied the principle of estoppel against a tenant who had denied title of the landlord and had set-up the plea of becoming a co-sharer. In "Amin and others v. Hafiz Ghulam Muhammad" (PLD 2006 Supreme Court 549) it was held that if a tenant denied landlord's title in both the situations i.e. when the tenant set-ups his own title or when he set-ups somebody else's title, the principle of Article 115 of the Qanun-e-Shahadat Order, 1984 was applied and unless he has surrendered possession, he could not repudiate landlord's title. In another case "Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs." (2006 SCMR 1068) it was held that if a tenant denies the proprietary rights of the landlord, then he is bound to first deliver the possession of premises in question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the court and decree is passed in his favour, only then he can enforce the same according to law with all its consequences. In case "Abdul Rasheed v. Maqbool Ahmed and others" (2011 SCMR 320) the august Supreme Court of Pakistan held that if a tenant denied relationship of landlord and tenant by claiming that he purchased demised premises through sale agreement, then in such circumstances he had to vacate premises and the suit for specific performance of sale agreement, whereafter he would be given easy access to premises in case he prevailed.
This Court in the following cases titled as "Syed Izhar-ul-Hassan Rizvi v. Mian Abdul Rehman and 2 others" (1989 CLC 2144), "Khawaja Masood Ahmad and another v. Sajjad Sarwar and 2 others"
(2002 MLD 434) and "Muhammad Arshad v. Farooq Ahmad" (2010 YLR 1374) also observed the dictum laid down by the Hon'ble Supreme Court of Pakistan.
The aforementioned law clearly propounds that till such time, the tenancy stands terminated mutually by the landlord and a tenant or the possession of the property is surrendered by the tenant, which he took at the inception under a tenancy relationship, he cannot resist the ejectment application on the ground that he has acquire a share from a co-sharer and become co-owner in the rented premises. For all these reasons, it is idle to contend that relationship of landlord and tenant did not exist between the parties. The plea of learned counsel in this respect being without any force is hereby repelled. There is no justification to allow the petitioner to hang on the property from which he was sought to be ejected.
13. The learned counsel for the petitioner failed to point out any illegality or material irregularity in the findings recorded by learned Courts below. I have seen no illegality, irregularity and misreading or non-reading of evidence on the part of learned Courts below while passing the impugned judgments/orders. There are concurrent findings of facts in the matter recorded by learned Courts below and while passing the impugned judgments/orders and memos of cost every piece of evidence, oral as well as documentary, produced before them has been considered and nothing is shown to have been overlooked from their judicious consideration. The findings of the learned Courts below on question of facts and law being based upon proper appreciation of oral as well as documentary evidence, are not liable to be reviewed or substituted by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The constitutional jurisdiction could only be invoked if findings forming bases of judgments/orders impugned are based on no evidence at all or some evidence having material bearing on controversy had been missed or totally ignored by Courts below or impugned findings were recorded in violation of relevant statute or some other settled principles/rule of law.
14. Epitome of above discussion is that this writ petition having no merits is hereby dismissed with no order as to costs.