' Ejectment Case No, 1928/1976 was filed by Muhammad Ismail and Muhammad Shafi, appellants in this appeal, against the respondent for his eviction on the ground mentioned in para. 2 of the application which reads as follows :- "That the applicants' families have expended to the extent of 22 members with grown-up children.
Two daughters of the appellant No, 1 have married with two sons of the applicant No, 2 about one year ago. The present residential premises which is also jointly owned by the applicants and where both of the applicants alongwith their said families are jointly residing has become insufficient for the total residential needs of the applicants and their family members. As such the applicants require the said premises in occupation of the opponent for the personal bona fide use of their said married sons and daughters."
2. - It may be observed that in the ejectment application, the appellants had stated that they were the co-owners of the property' in question. The respondent denied the case for requirement put up by the appellants. Muhammad Ismail, one of the appellants, appeared as a witness-on behalf of the appellants. Muhammad Sharif, appeared as a witness of the respondent as his attorney. By the impugned order dated 19-1-1980 the ejectment application was dismissed. The entire reasoning of the learned Rent 'Controller is contained in last paragraph of the impugned order which is reproduced here:- "1 have heard the arguments of both the learned counsel for the parties. It is the case of the applicant himself that Tufail is not their tenant and admittedly he is in possession of 2 rooms. No doubt that 2 sons of applicant Shafi and one son of Ismail are married and there are about 19 persons, according to ration card, in the families of both the applicants but even then I am of the considered opinion that requirement of the premises in case by the applicants is not reasonable because in the connected case filed by the same applicants bearing No, 1927, I have ordered for the ejectment of the other tenant of the applicants and in the result the applicants will be in possession of two rooms presently in possession of Tufail for whom the applicants are not liable to provide the accommodation and 3 rooms presently in possession of other tenant against whom I have passed the order of the ejectment in addition to the accommodation already with them and then the applicants will be in possession of the accommodation more than their requirements where they can easily accommodate their all family members, therefore, in view of above discussion and in interest of justice I disallow the application with no order as to costs. Order accordingly."
3. Being aggrieved the appellants have filed the present First Rent Appeal. I have heard Mr. K. B.
Bhutto, learned counsel for the appellants and Mr. Mirza Saeed Baig, Advocate, who has appeared on behalf of the respondents. According to the appellants' case there are in all 9 rooms in the residential part of the house in question and out of these 9 rooms, 3 are in possession of the two appellants, wherein they are residing with their families including married children, two rooms are in occupation of one Tufail and his family who is claimed by the appellants to be the brother of appellant Muhammad Shari, 3 rooms are in possession of one Murad Ali, a tenant and one room is in possession of respondent, Muhammad Siddiq, in respect of which room the ejectment application was filed. In so far as the tenant Murad Ali is concerned, an application for his ejectment had been filed by the appellants and the learned Rent Controller granted that application and reference about this is to be found in the last paragraph of his impugned order reproduced hereinabove. As regards the two rooms in occupation of Tufail, according to the learned Rent Controller these two rooms are deemed to be available to the appellants as Tufail has been admitted by the appellant not to be their tenant. According to the learned Rent Controller the present area in occupation of the appellants together with 3 rooms which they will get on account of the ejectment order passed against tenant Murad Ali plus the 2 rooms of Tufail are sufficient for the requirements of the families of the appellants.
4. The first contention of learned counsel for the appellants was that from the evidence it had been established that Tufail is brother of Muhammad Shafi, one of the co-owners/appellants and the learned Rent Controller erred in taking the view that these two rooms would be considered to be in possession of the appellants. The contention of Mr. K. B. Bhutto, learned counsel for the appellants was that Tufail is the brother of Muhammad Shafi appellant and the landlords had a choice not to get the premises vacated by Tufail but to file an application for ejectment of the tenants in other portions of the house in question. It was submitted that if a landlord had more than one tenant and if the landlord required further accommodation, the choice as against whom ejectment application be filed rests with the landlords and by analogy if one portion was in possession of a relative who was not a tenant and another portion in occupation of a tenant, under the law, the landlord has the choice to file an ejectment application against the tenant and he need not take steps for getting the premises in occupation of the relative vacated and the area in occupation of the relative could not be deemed to be in possession of the landlord for considering whether the area in occupation of the landlord was or was not sufficient for the needs of the landlord and for the needs of his family. On the other hand, Mr. Mirza Saeed Baig, learned counsel for the respondent argued that there was no choice available in these circumstances with the landlord and he should in such circumstances first get the portion in possession of his relative vacated.
In the instant case evidence has come on record that Tufail is the brothe of Muhammad Shafi, appellant and in my view this evidence has not been shaken either in the cross-examination or in the evidence led on behalf of th respondent. It has also come on record that Tufail has been living in the 2 rooms with his family not as a tenant. Apparently Tufail has been residing in the premises as a brother of appellant, Muhammad Sha with the courtesy of the appellants. There is nothing strange or abnormal about such permission being granted expressly or impliedly. In the socia structure of our society in Pakistan relatives specially close relatives like father, son or brother, do help the relatives in various ways and one such method is by providing free accommodation to a needy relative. I find substance in the contention of Mr. K. B. Bhutto, learned counsel for the appellants, that in the situation like the present case, it is the choice of the landlord to proceed against the tenant and not to ask the brother and his family to vacate the portion in their possession. Learned counsel for the respondent had relied upon PLD 1969 Lah. 886 and PLD 1961 SC 28 for the proposition that such choice is not available and that in such circumstances the landlord must get the premises in occupation of the relative vacated first and if such accommodation fulfils the requirement of the landlord and his family, be is not then entitled to file an ejectment case against the tenant. 1 find that neither of these two reported judgments are relevant to the point in question and in neither of these two judgments any such principles has been laid down.
5. I am, therefore, of the view that the learned Rent Controller was wrong in his finding that the two rooms in possession of Tufail and his family are available to the appellants. The result is that the number of family members of the two appellants, according to the learned Rent Controller, are 19 and they have three rooms in their occupation and they will now be having three more rooms in the ejectment order passed against the tenant Murad Ali attaining finality. Nineteen persons with several of the children of the two appellants being married, six rooms, in the facts and circumstances of the instant case, will not be sufficient, according to my view for their needs. In my view, on the basis of the evidence on record a case had been made out for ejectment of the respondent from the room in question on the ground of personal requirement of the married children of the appellants.
6. As a result First Rent Appeal No, 100 of 1980 is allowed and the order dated 19-1-1980 of the learned Rent Controller passed in Rent Case No, 1928 of 1976 is set aside and the ejectment application filed by the appellants is granted. The respondent is, however, granted time till 31-8- 1983 to vacate the premises.