GUL HASSAN TAREEN J. This Regular First Appeal, preferred under section 96, the Civil Procedure Code, 1908 ('C.P.C') is directed from the judgment and decree dated 26 May, 2022, (Impugned judgment and decree'), passed by the Court of learned Civil Judge-I, Quetta, whereby Civil Suit No. 76/2021, instituted by the appellants was rejected under Order VII, Rule 11, C.P.C.
2. Facts of the case, briefly stated, are that on 22 November, 2021, appellants instituted a Civil Suit for declaration, possession partition and perpetual injunction against the respondents with the averments that they along with the respondents Nos. 1 to 6 are the legal representatives of deceased Syed Abdul Khair, who left behind two properties situated in District Pishin and District Quetta as his legacy. The description of the legacy was described in Para No. 1 of the plaint ('suit properties'). The first property is situated in District Pishin, whereas the second property is a shop bearing No. 25 situated at Jinnah Cloth Market, Jinnah Road, Quetta ('shop in question').
Metropolitan Corporation Quetta (respondent No. 9) is the owner of the second property/shop in question, whereas the said predecessor of appellants was lessee therein. The appellants further averred that in the suit properties, the respondents Nos. 1 to 6 have deprived them from getting their sharee shares. Finally, they prayed declaration, that they along with the respondents Nos. 1 to 6 are joint owners in the suit properties; declaration, that mutation entry No. 147 and agreements executed between respondents Nos. 1 to 9 in respect of the shop in question are result of fraud and forgery, partition through preliminary decree and perpetual injunction.
3. The respondents Nos. 1 to 6 submitted a common contesting written statement, whereas respondents Nos. 8 and 9 also submitted their contesting written statements.
4. Perusal of record reveals that respondent No. 7 made an application before the Trial Court under Order VII rules 10 and 11 C.P.C for rejection of the suit. The appellants contested the application. After hearing both sides, vide impugned judgment and decree, the Trial Court allowed the application and rejected the suit.
5. Mr. Sharjeel Haider, learned counsel for the appellants, states that predecessor of appellants was lessee of the respondent No. 9 in the shop in question; therefore, leasehold interest also devolved upon the appellants as legacy of their late predecessor. He states that the Trial Court, without framing issues and recording evidence, has illegally held that the second property/shop in question did not belong to their late predecessor and now is in possession of the respondent No. 8 as lessee of respondent No. 9. He states that the Trial Court situated at Quetta has jurisdiction to try the suit relating to partition of properties situated at Quetta and Pishin. He referred to section 17, C.P.C and placed reliance on the following case laws: Abdul Habib and others v. Mst. Noor Bibi and others 2022 SCMR 1846, and Sindh Industrial Trading Estate Ltd through Secretary v. Muhammad Illyas and another 2005 SCMR 309.
6. Respondents Nos. 1 to 6, through attorney, respondent No. 1, appeared in person and defended the impugned judgment and decree.
7. Syed Ayaz Zahoor, learned counsel for the respondent No. 7 opposed the contention of appellants counsel and states that the shop in question situated at Quetta is a leased property and by its very nature, lease is not heritable and partition-able between the legal heirs of a deceased lessee. He states that appellants cannot claim any right of inheritance in a property owned by the respondent No. 9 (Quetta Metropolitan Corporation). He supported the impugned judgment and requests for dismissal of the appeal.
8. Heard. Record perused.
9. Perusal of the impugned judgment reveals that the Trial Court has observed that the first property is situated beyond the local limits of its territorial jurisdiction whereas, to the extent of shop in question, it has been observed that since it belongs to the respondent No. 9, as such, is not an inherited property and the same cannot be treated as legacy of predecessor of the appellants.
The findings of the Trial Court are not legally correct for, it is an admitted fact that the shop in question is a leased property which was leased out by the respondent No. 9 to the late predecessor of the appellants and respondents Nos. 1 to 6. The late predecessor had leasehold interest in the shop in question and, therefore, a leased property is not only heritable by the legal representatives of a deceased lessee rather is partition-able between them. According to section 105, the Transfer of Property Act, 1882 ('Act, 1882'), a lease of immovable property is a transfer of a right to enjoy such property in consideration of a price paid or promised or of money etc. A lessee may enjoy such immovable property for commercial or residential purpose, according to the nature of the leased property and terms of a lease deed. A lessee may, in the absence of a contract to the contrary, may, even transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the leased property under section 108 (B)(I), the Act, 1882. Therefore, interest of a deceased lessee is heritable and partition-able. It does not make any difference, whether leased property belongs to a private person, to government or to an autonomous body. The Supreme Court of Pakistan in Sindh Industrial Trading Estate Ltd.'s case, relied upon by the appellants counsel, has held as under: "6. Learned counsel for the petitioner could not show us any provision whereunder the legal heirs of the deceased cannot inherit the tenancy right of lease. Learned Division Bench of the High Court has observed.-- "The learned Advocate for the appellant did not point out any clause in the Lease Deed whereby appellant has been authorized to terminate the lease, in case of death of the lessee or that the right accrued to the lessee/tenant cannot be inherited to, the legal heirs. In reply to our query the learned counsel for the appellant admitted that the SITE in case of death of the tenant mutates the names of the legal heirs of the said tenant in respect of the properties allocated to them. He further stated that since in the instant case the deceased had failed to put property in use in terms of the lease and further that the very property has been got allotted by misrepresentation the appellant is not bound to mutate the names of the legal heirs of the deceased. We are afraid that the contention of the learned Advocate for the appellant has any force. We are of the view that the property in question was one of the assets left by the deceased and the legal heirs inherited the same as admittedly property stood in the name of the deceased at the time of his death and even today same stands in the record of the appellant in the name of deceased. The legal heirs inherited the property in question, with whatever right deceased had in it, and if there is any defect in the title the legal heirs had inherited the defective title and merely because the property has been mutated in the names of the legal heirs of the deceased does not mean in any way that the defect, if any, initially intact to the said property has been wiped of nor the same disentitles the appellant to take action, if any, they intend to take against the legal heirs.
In the matter pertaining to letters of administration the Court only determined the question about the assets left by the deceased and inherited by the legal heirs and in appropriate cases undertook to investigate adverse claim between the legal heirs in the said proceedings, but merely because the letter of administration has been issued, the same does not tantamount to confirming title on the legal heirs."
10. The respondent No. 8 in his written statement averred that the shop in question was previously in the possession of the predecessor of the appellants and respondents Nos. 1 to 6 as tenant of respondent No. 9 which was later rented out to the respondents Nos. 1 to 6. Later, the shop in question was given to the respondents No. 1 by the respondent Nos. 2 to 6, as sole tenant of the respondent No. 9 and rent was being paid by the said respondent. He also averred that in August, 2005, he entered into the shop in question with the respondent No. 1 in business of curtain cloth as joint tenant of the respondent No.9. Later, the entire shop was handed over to him and rent of such shop was/is being paid by him. The respondent No. 8 further averred that he paid Rs. 22,50,000/-to the respondent No. 1 in exchange for transfer of business of the shop in question and purchased the leasehold interest from the respondent No.1 through written agreements.
11. Admittedly the predecessor of the appellants was lessee in the shop in question; therefore, the leasehold interest was also heritable legacy. Whether appellants were given their due shares in the shop in question by the respondents Nos. 1 to 6 or otherwise, required framing of issues and recording of evidence, however, the Trial Court while non-suiting the appellants has overlooked the pleading of the appellants as well as of the respondent No. 8. The respondent No. 8 has not denied the fact that the predecessor of appellants was lessee of respondent No. 9 in the shop in question which, later devolved upon the respondents Nos.1 to 6 and later respondent No. 1 sold out leasehold interest/ business of the shop in question to him in exchange for a price of Rs.22,50,000/-. The Trial Court should have framed issues and allowed parties to lead their respective evidence.
12. Since, the shop in question is situated within the local limits of the territorial jurisdiction of the Trial Court and the Trial Court has also jurisdiction to try the suit of appellants in respect of property situated at Pishin in view of section 17, the C.P.C, therefore, the Trial Court has committed material illegality vide impugned judgment and decree.
13. For afore discussion, the appeal is allowed; the impugned judgment and decree dated 26 May, 2022, passed by the Court of learned Civil Judge-I, Quetta, in Civil Suit No. 76/2021 is set aside and case is remanded back to the Trial Court for decision of the suit on merits after framing issues and recording evidence.
14. Since, the Trial Court, vide impugned judgment, has non-suited the appellants upon a preliminary point and the impugned decree is reversed in the instant appeal under Order XLI, Rule 23, C.P.C; therefore, appellants are entitled for return of affixed court fee stamp of Rs.15000/- under section 13 of the Court Fees Act, 1879. Office to issue the relevant certificate to the appellants for return of court fee.