1. ' This appeal is directed against the order of XIIth Senior Civil Judge and Rent Controller, Karachi (Miss Mahjabeen), dated 10th September, 1983 whereby the ejectment application filed by the appellant-landlady for eviction of the respondent-tenant was dismissed.
2. ' Brief facts of the case are that the respondent Mst. Kaneez Fatima is tenant occupying 2nd floor of the building which originally belonged to Muhammad Jamil, the deceased husband of the appellant, Mst. Fazal Bibi and his two brothers. It is said that in his lifetime the said Muhammad Jamil used to collect rent from the respondent. On death of Muhammad Jamil on 31-7-1961, his share in the disputed building devolved on the appellant, his widow and his other heirs. As the appellant had no accommodation of her own and was living with family of her son Bashir Ahmed in the P.I.B. Colony, she sought ejectment of the respondent from the disputed floor under section 14, Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance).
3. ' The ejectment application was resisted by the respondent who vehemently denied that the appellant was the owner/landlord of the disputed premises and, therefore, the latter's right to seek ejectment of the respondent was also questioned by her.
4. ' The learned Rent Controller after taking Into consideration the evidence adduced by both the parties, dismissed the ejectment application. Aggrieved by the Rent Controller's decision, the appellant has filed the present appeal. The arguments of the learned counsel for the parties were heard and with their assistance the evidence produced by the parties was also gone through.
5. ' It is admitted on both hands that the disputed 2nd floor which is in occupation of the respondent is a part of the building which originally belonged to Muhammad Jamil, the deceased husband of the appellant and his two brothers. It is further admitted that all the three original owners of the building having expired, the ownership of the building jointly devolves on the heirs of the said owners. In this way the appellant who is widow and hence heir of one of the original owners, has share in the disputed building which includes the disputed floor. The question arose if the appellant who is not the exclusive owner of the disputed floor, could seek ejectment of the respondent from the said floor on the ground of she being a widow of one of the original owners of the disputed floor.
6. ' The learned counsel for the appellant expressed the view that despite the fact that the appellant was not the exclusive owner of the demised premises, she could file ejectment application against the tenant in possession of the said premises, in her capacity as one of the joint owners of the said premises. In support of her view she placed reliance on Mst.Rahiman Bano v. Syed Wasi Ahmed Jeffery 1984 CLC 44 wherein the view taken was that widow who is co-owner of the property was competent to seek ejectment of the tenant from joint property belonging to her and other legal heirs and there was nothing in section 14 of the Ordinance prohibiting her from availing the desired relief.
7. ' The other case on the same point relied upon by the learned counsel for the appellant is of Mst.
8. Sardar Begum v. Mst. Hasina Jan 1983 CLC 3258 wherein it was held: "whatever her share be, she is a co-owner alongwith other heirs in every inch of the property. For the purpose of Ordinance she is owner and as such she is competent to file the rent application".
9. ' The next case relied upon by the learned counsel for the appellant on the same point is reported as Mst. Safia Bai v. Abdul Satter PLD 1983 Kar. 419 wherein the argument was raised that as the landlord is not full owner of the disputed premises, the ejectment application filed by such landlord is not maintainable. It was held that the argument was not sustainable under section 14(1) of the Ordinance.
10. 'In view of the above authorities, the appellant who is admittedly co-owner of the disputed premises is found to be within her right in seeking ejectment of the tenant in occupation of the said premises. Even the learned counsel for the tenant did not seriously contest the appellant's competence to institute ejectment proceedings against the respondent.
11. ' The next point that was agitated at the bar was that since other co-heirs are admittedly in possession of the rest of the disputed building they are deemed to be in the possession on behalf of all co-owners including the appellant and therefore for the purpose of section 14 of the Ordinance, the appellant being in possession of the building in the same locality, she was debarred from seeking ejectment of the tenant for the disputed premises. This argument which was raised by the learned counsel for the respondent is manifestly fallacious. It is true that some of the co- owners in possession of the remaining floors of the disputed building hold possession on behalf of all co-owners. In that case the co-owners not being in actual physical possession of the premises would be deemed to be in constructive possession of the same. If the appellant is held not to be in actual possession of any portion of the disputed building, she cannot be denied her right of getting the rented premises vacated only because she is in constructive possession of the rest of the same building. If this argument was accepted, then even the tenant holding the possession of the disputed floor on behalf of all the co-owners including the appellant would not be liable to ejectment. Therefore, it is the actual physical possession which matters under the Ordinance.
12. ' The appellant's case is that she is residing with the family of her son Bashir Ahmed in his house at P.I.B Colony, Karachi and she has no other accommodation of her own. This is however denied by the respondent whose plea taken in the written statement is that the appellant is residing independently on the top floor of the disputed building. But in the same para. (para. 2) of the written statement it is also mentioned that even ground floor and first floor are in possession of the applicant (appellant) and her son.
13. ' The only witness examined in support of the appellant's case is Zulfiqar Ahmed, her son. He has stated on oath that the appellant resides with her son Bashir Ahmed and his family in the house in P.I.B Colony owned by Bashir Ahmed's wife. He has denied that his mother is sharing with him the ground floor and the first floor of the building. Again no question has been put to him that his mother is occupying the full top floor independently as has been stated by the respondent in her written statement. According to this witness he is occupying the first floor of the building, the family of Muhammad Ismail's son is occupying the top floor (third floor) and the ground floor is in possession of the family of Muhammad Nazir's son. Muhammad Ismail and Muhammad Nazir were admittedly brothers of Muhammad Jamil father of the above witness Zulfiqar Ahmed. It is also not denied that all the above three brothers jointly owned the disputed building. Since one of the four floors (2nd floor) of the building was rented out and was in possession of the respondent/tenant: it was but natural that remaining three floors should be in possession of the heirs of the original co- owners in such a way that the heirs of each original co-owner should have at least one floor in their possession. This is what has been proved from evidence of Zulfiqar Ahmed. It is unbelievable that appellant who is widow of only one of the original co-owners would be allowed to occupy not only full top floor but would also be sharing first floor arid ground floor with her son nor can it be believed that the appellant's son who is the heir of one of the original co-owners would be permitted by the heirs of other co-owners to occupy more than one floor. Accordingly the plea raised by the defendant in her written statement does not appear to be true.
14. ' The myth of the respondent's plea is further exposed by the conflicting statements of her own witnesses. Syed Jaffar, the step son of the respondent and Khuda Bux her step son-in-law have been examined in support of the respondent's case. It is admitted by Syed Jaffar that the ground floor of the building is in possession of the children of Muhammad Nazir. Thus he confirms the statement of the appellant's witness, Zulfiqar Ahmed in this respect. Not only this but also the plea of the respondent stands falsified by his statement inasmuch as that the ground floor is not in possession of the appellant and her son as mentioned in the written statement. It is further admitted by Syed Jaffar that the first floor is in possession of the families of Zulfiqar Ahmed and Shamshad Ahmed, adding that the applicant (appellant) is residing with them. As pointed out above Zulfiqar Ahmed has however denied that his mother is living with him. As for third floor of the building, Syed Jaffar has also confirmed the statement of Zulfiqar Ahmed, that the said floor is in possession of Ashraf son of Muhammad Ismail. Thus even according to Syed Jaffar, respondent's own witness all the four floors are occupied in the manner he has indicated in his evidence.
15. Moreover, the statement of this witness is self-contradictory. In his examination-in-chief he has stated that both ground floor and first floor of the building are in possession of the applicant (appellant) and her son and that the applicant is living on the top floor independently. But in course of his cross-examination he has stated differently, saying that ground floor is in possession of Muhammad Nazir's son. Even otherwise it cannot be conceived how the appellant apart from occupying the top floor independently is also sharing ground floor and first floor with her son.
16. ' As disclosed in the examination-in-chief of the respondent's another witness Khuda Bux, the applicant (appellant) and her son are sharing three floors of the building namely ground floor, first floor and top floor. On perusal of his cross-examination it appears that this witness too has indulged in a lot of contradictions. As against what he has stated in his examination-in-chief, he has admitted in his cross-examination that son of Nazir Ahmed is residing on the ground floor. This tallies with the statement of Zulfiqar Ahmed as well as what has been admitted by Syed Jaffar in his cross-examination. He, however, hastily adds that the applicant (appellant) too resides with him (Nazir's son) on the ground floor. This is patently false. The appellant is not expected to reside with nephew of her husband when she has own children or when she is said to be residing independently on the top floor. His further admission in cross-examination is that Shamshad and Zulfiqar reside with their families on the first floor. In the same breath he also adds that Shamshad also resides on the ground floor even though according to this witness Shamshad has no issue. It is further admitted by Khuda Bux that third floor is in possession of Sadik's family and the top floor is in joint possession of the application (Appellant) and Ashraf. This again is difficult to believe Ashraf is nephew of the appellant's husband. It cannot be believed, that the appellant having own children living in the same building would share the top floor with her husband's nephew, particularly when the top floor consists of only one room.
17. 'For above reasons the evidence of the respondent's witnesses does not inspire confidence.
18. Moreover, their evidence cannot be preferred to the evidence of Zulfiqar Ahmed, the witness of appellant which looks convincing and natural. If Zulfiqar's evidence is believed, the appellant is residing in the P.1,.B Colony in the house of her daughter-in-law, the wife of her son Bashir Ahmed.
19. Accordingly she needs the accommodation in possession of the respondent for her personal use.
20. ' In view of above findings the appeal is allowed and the respondent is directed to deliver possession of the disputed premises to the appellant within three months of this order. The parties will bear their own costs.