Petitioner in this constitutional petition impugns order dated 30.3.2022 of learned Addl. District Judge Rawalpindi whereby appeal of respondent No.1 was allowed, order of ejectment was set aside and in result the ejectment petition was dismissed.
2. Petitioner filed a petition under section 15 of Punjab Rented Premises Act, 2009 for eviction of respondent No.1 from shops No.3, 4, and 5 situated at Mirza Market, Street No.3, Charaha Road, Muslim Town, Rawalpindi, on the ground of default in payment of rent, expiry of tenancy, breach of terms and conditions of oral agreement and personal use. The case of the petitioner was that his late father rented out shops No.4 and 5 to the late father of respondent No.1 in the year 1986 against a written agreement; after the death of petitioner's father, the property and shops devolved upon the petitioner who rented out shop No.3 to respondent No.1 under oral tenancy in the month of August 2009 and that the respondent No.1 stopped paying rent from June 2019 and that despite request the respondent No.1 did not pay the arrears of rent nor vacated the shop. Legal notice was issued to respondent No.1 which remained unresponded. Respondent No.1 in his application for leave to contest raised certain legal objections and took the stance that relationship of landlord and tenant did not exist between the parties; he was owner in possession of the property and that shops were purchased by predecessor of respondent No.1 namely Mirza Pervez Ashraf Baig son of Mirza Inayat Baig through a registered sale deed No.6045 dated 24.10.2017 from Mirza Muhammad Akram. It was maintained that a suit for partition of property was pending in the civil court and likewise another suit for declaration, cancellation and permanent injunction was also filed against him which was sub judice. It was alleged that shops having been purchased by respondent No.1 therefore his status was that of a co-sharer who could not be ejected except through a decree for partition. Issues were framed; evidence was recorded. Learned Special Judge
(Rent) decided the matter in favour of petitioner and allowed ejectment of respondent No.1 vide order dated 10.1.2022. Respondent's appeal was allowed by learned Addl. District Judge, Rawalpindi vide order dated 30.3.2022, in result, the order of ejectment was set aside and ejectment petition was dismissed. In the instant constitutional petition the order of Addl. District Judge is under challenge.
3. Learned counsel for the petitioner submitted that the appellate court misinterpreted the relevant law and passed an order in a slipshod manner, the appellate court misconstrued the evidence of the parties and that the evidence proved beyond doubt that shops were constructed by the father of petitioner and that the name of Mirza Akram was shown as benamidar in the sale deed as the petitioner's father was in England and got the name of Muhammad Akram inserted as benamidar to look after the property and that electricity meters were in the name of the mother and father of petitioner, that the sui gas bill also to be issued in the name of petitioner's mother and father which were sufficient to verify the ownership of the petitioner's father and that there was an admission of respondent No.1 in the evidence that he was a tenant in the property and that cumulative effect of this evidence was that the relationship of landlord and tenant had been established, therefore, the respondent No.1 was liable to eviction and that at best respondent No.1 could claim to be a co-sharer in the rest of vacant landed property while the constructed property being owned by petitioner's father, respondent No.1 could not be allowed to make any claim qua the shops in dispute.
4. Points raised by learned counsel have been duly considered and documents filed with the petition have been minutely examined. Stance of the petitioner was that respondent No.1 was tenant in the shops and that the shops were constructed by his father and that the respondent No.1 having admitted the tenancy, could not deny such relationship in the garb of sale deed purportedly executed by Mirza Muhammad Akram who was a benamidar in the sale deed and could not convey any right. Though in the application for leave to contest respondent No. 1 denied the tenancy agreement but in cross-examination he showed his ignorance about said agreement.
It is, however, in the evidence that firstly father of respondent No.1 and, thereafter, respondent No.1 were occupying the shops. The learned Addl. District Judge observed that even if it is admitted that respondent No.1 was tenant of father of petitioner but the question arose as to what would be the effect of new development which took place. It was noted that through sale deed No.6044 dated 24.10.2017 produced in evidence as Ex.R-2, respondent purchased the house measuring 08 marlas from Mirza Muhammad Akram who was real brother of father of petitioner. Similarly, vide sale deed No. 6045 dated 24.10.2017 Ex.R-3, Mirza Parvaiz Ashraf who was father of the respondent purchased shops along with roof constructed over land measuring two marlas from Mirza Muhammad Akram.
As per sale deed No.1013 dated 25.3.1968 the total area of the property was 01 kanal and 35 sq. ft. which was sold in favour of Mirza Muhammad Akram and the father of petitioner in equal share.
Mirza Muhammad Akram being owner of one half of property transferred his share measuring 10 marlas in the shops and the house to the respondent No.1, in result, he became co-sharer in the property. It was also observed that sister of the petitioner Mst. Shahida Jabeen filed a suit for cancellation of sale deed which was pending before the civil court. Respondent and his brother and mother had also filed a suit for partition against the petitioner and his sister which was sub judice in the civil court. From these facts proved on record, the learned Addl. District Judge concluded that respondent No.1 had become a co-sharer in the joint property, his status as tenant has ceased and his possession became that of co-owner and would thus fall in the definition of landlord. It was observed that as a co-sharer the respondent was entitled to retain the possession of joint property till partition takes place and he could not be ejected in the execution of any ejectment order.
5. As against the view of learned Addl. District Judge, the learned Special Judge (Rent) had proceeded on assumption that once a tenant is always a tenant and that the tenant was estopped from denying title of the landlord. The learned Special Judge (Rent) passed the ejectment order which was set aside in appeal by learned Addl. District Judge.
6. Ordinarily a tenant in possession of property cannot deny the title of landlord unless he vacates the premises. Such rule is, however, not absolute. If the tenant acquires title in the property which was held by him as a tenant his status will transform to co-sharer. He could not be ejected except through partition in such development. Reference can be made to Mst. Sanobar Sultan and others v. Obaidullah Khan and others (PLD 2009 SC 71) and Abdul Zahir v. Jaffar Khan (2010 SCMR 189).
In the latter it was observed as under: "The appellant has already purchased considerable portion of the property in question and thus has become joint owner thereof and the position existing previously has enormously changed.
After purchase of land in dispute, the privity of landlord and tenant came to end and extinguished. ...
8. Needless to add that a purchaser of a share out of a joint property having become a co-owner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord. A co-sharer is entitled to retain the possession of the joint property till partition and cannot be ejected".
Reference was also made to the case of Muhammad Muzaffar Khan v. Muhammad Yousaf Khan (PLD 1959 SC 9) where it was held as under: "The vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bonds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owners in an undivided khata, does not become a co-sharer in that khata"
In Syed Izhar Ul Hassan Rizvi v. Mian Abdur Rahman and others (1992 SCMR 1352) it was observed that the doctrine of estoppel was not exhaustive and tenant could plead that his landlord's title had come to an end or was extinguished subsequent to commencement of tenancy. In the case of Mohammad Nawaz and two others v. Sh. Abdul Latif and another (1971 SCMR 198) it was observed to the effect that a co-sharer in possession of joint property could not be evicted without filing suit for partition. It was a case in which an ejectment order was passed on grounds of subletting and default, however, during execution an objection was taken that one of the co- sharers had sold his share to the tenant and, therefore, execution could not take place. It is observed by the honourable Supreme Court that "we are satisfied that the High Court was perfectly justified in holding prima facie that Sh. Abdul Latif was in possession of the property in dispute through his brother Muhammad Rafique. In law a co-sharer in possession of a joint property cannot be evicted without filing a suit for partition." As regards the plea of electricity and sui gas bills bieng in name of father of the petitioner, these document do not convey any title nor reflect as proof of title in the property and, therefore, no reliance can be placed thereupon. As to the argument that construction was made by father of the petitioner, suffice it to observe that site plan of construction approved by government department produced by the petitioner shows the name of both the owners i.e. Mirza Muhammad Akram and father of the petitioner as owners of the property. Any construction made on the joint property could not possiby be assumed to be owned by one person or a symbol of partition between two co-owners. Be that as it may, these questions will be attended to by a court where the suit for partition is pending. For the purposes of present proceedings suffice it to observe that on purchase of the share of Mirza Muhammad Akram through registered sale deeds, respondent No.1 became co-sharer in the property and his status as tenant had ceased and extinguished. The order of learned Addl. District Judge does not suffer from any error of law and jurisdiction and is based on correct analysis of evidence on record.
7. Resultantly this petition is devoid of substance which is accordingly dismissed.