This second appeal is directed against the order, dated 14-2-1988 passed by the learned District Judge. Swat, whereby he accepted the appeal of Haji Haroon-ur-Rashid (hereinafter to be called tenant/ respondent) against the order, dated 11-10-1987 passed by the learned Rent Controller, Swat and, by setting aside the order of the Rent Controller, dismissed the petition of Habib Khan (hereinafter to be called landlord /appellant), for the eviction of the tenant! Respondent from the suit shop situated in the Main Bazar of Mingora.
2. The facts of the case, briefly stated are, that Mir Alam Khan was the owner of the suit shop and the adjoining shop towards its south. On his death, his inheritance devolved upon Mashal Khan and Abdur Rahim Khan in equal share. It is the case of the appellant that through private partition, the northern shop which is in suit fell to the lot of Mashal Khan while the southern one, was given to the other brother namely Abdur Rahim Khan. Mashal Khan sold the suit shop to one Gul Nabi which was pre-empted by Abdur Rahim Khan, as is evidenced by the deed EXh.PW.l/1, on the file and thus Abdur Rahim Khan became the owner of both the shops. He also died, leaving behind two sons namely Habib Khan appellant and one Badshah Khan. According to the version of the appellant, again there was private settlement between them, whereby Habib Khan appellant was given the suit shop as his exclusive ownership while Badshah khan became the exclusive owner of the southern shop- He sold the same, vide deed, dated 20-7 1984, copy EXh.RW.l/4 to Haji Said Anwar and his sons. The tenant/respondent Haii Haroon-ur-Rashid executed a deed in his own, writing on the pad of his shop. Cope Exh.PW.1/2, in favour of landlord /appellant wherein he acknowledges?
Himself to be in occupation of the suit shop as tenant on payment of Rs.1,400 as rent for a period of two years The landlord/appellant approached the Tehsildar of the area for the ejectment of the tenant/ respondent on the ground of persona: use as the existing laws had not yet been extended to that area and the Executive Officers were entrusted with the powers to decide all sorts of disputes between the contestants according to the custom, in vogue in the area. The prayer of the landlord /appellant was not acceded to by the Tehsildar and he, vide his order, dated 18-11-1974, dismissed his application. The appeal filed by him (appellant) before the Additional Deputy Commissioner, Swat met the same fate vide his order, dated 24-6-1975. However, the Additional Commissione: Malakand Division, vide order,dated 5-8-1975, set aside the orders of the lower forums and directed the tenant /respondent to vacate the suit shop within two months. This was challenged before the Deputy Secretary-III, Government of N.-W.F.P. Home and Tribal Affairs Department and he, by accepting the revision petition filed by the tenant/ respondent, set aside the order of the Additional Commissioner and restored that of the Additional Deputy Commissioner, dated 24-6-1975. The appellant approached this Court through a Writ Petition No.464 of 1977 but the same was also dismissed by the learned Division Bench of this Court, vide order, dated 6-11-1985.
3. Having been unsuccessful in the first round of litigation referred to above, the appellant submitted the instant application before the Rent Controller Swat under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 which had, in the meantime, been extended to that part of the country. The sole ground agitated in the petition for the eviction of the tenant /respondent, again is the requirement in good faith for personal use of the appellant. The tenant /respondent in his written statement, took up various pleas and inter alia, contended that he was joint owner in the suit shop as well as the adjoining shop towards the south and that, so long as, partition by metes and bounds, does not take place between all the joint owners, he cannot legally be ejected from the suit shop. He also raised the plea of res judicata. The learned Rent Controller after framing the necessary issues in the case and recording evidence of the parties, pro and contra thereon, through an elaborate and exhaustive order, ordered the eviction of the tenant/ respondent from the suit shop vide his order, dated 11-10-1987. However, the same was set aside on the appeal filed by the tenant /respondent before the learned District Judge, Swat vide his order, dated 14-2-1988, with the result that the ejectment petition filed by the appellant stood dismissed.
Hence the instant second appeal.
4. . 1 have heard the learned counsel for the parties for sufficient length of time and have gone through the voluminous record of the case with their assistance.
5. The learned Appellate Court has dismissed the petition of the appellant on two grounds firstly, that the tenant /respondent had proved himself to be a joint owner in the suit shop and the adjoining shop and that his physical eviction is not possible without regular partition of the property between all the co-owners; and secondly. That the landlord /appellant had not established requirement in good faith for personal use. The learned counsel for the appellant vehemently argued that the learned Rent Controller as well as the learned Appellate Court had a limited jurisdiction to determine whether the relationship of landlord and tenant, regarding the suit shop, existed between the parties or not and that they were not legally competent to enter into the question of ownership or joint ownership of the property in question. On the other hand learned counsel for the tenant /respondent controverted this assertion by submitting that, for the execution of the order of eviction prayed for by the landlord/ appellant, the decision of the plea of joint ownership was a must, particularly, when the tenant/respondent had purchased a share in the property inherited by Habib Khan, appellant and his co-heir, merging his tenancy in the co- ownership. As regards the second ground, the learned counsel for the appellant contended that his client is jobless and intends to start business in the suit premises, fit for the purpose, to make both ends meet. The learned counsel for the tenant /respondent on the contrary, relied on the previous litigation between the parties, discussed above and emphasised that the plea of bona fide personal requirement, having once been negative by the competent Courts of law in the earlier round of litigation upto the High Court, cannot be re-agitated by the landlord/ appellant.
6. 1 have anxiously considered the learned arguments of the learned counsel for the parties. The careful perusal of the deed, dated 12-2-1972, copy EXh.PW.l/2, would show that Haji Haroon-ur- Rashid tenant /respondent acknowledged himself to be the tenant of Habib Khan appellant in a shop on payment of Rs.1,400 as rent, having paid rent to him for one year in advance. He was confronted with this receipt while he was being examined as R.W.1 and he categorically admitted the execution of this deed. On the face of it, this deed was execute by the tenant /respondent after the purchase of the southern shop from Badshah Khan vide deed Exh.R.W.1/4. It is inconceivable that in the presence of the deed copy EXh.R.W.l/4 executed on 20-7-1964, allegedly conferring upon him co-ownership in the suit shop, the tenant /respondent would still acknowledge himself to be the tenant of the appellant in the suit shop. He is also belied by the contents of the said deed itself, copy EXh.R.W.l/4, which he himself produced in the Court and is legally bound by whatever is recited therein. Badshah Khan vendor of this deed has specifically admitted himself to be the owner, of built shop in the Main Bazar (10 feet) bounded, towards north by Habib Khan (shop in suit). Consequently the northern shop viz. The suit shop is owned by Habib Khan appellant as per admission of Badshah Khan, the predecessor-in-interest of the respondent which lends support to the claim of the appellant that there had been family settlement between him and Badshah Khan whereby, the suit shop had exclusively fallen to the lot of the appellant. Such being the case Badshah Khan and his successors-in-interest viz. Haji Said Anwar and his sons, including the respondent, are legally estopped to deny the exclusive ownership of the appellant regarding the suit shop or to claim co-ownership therein. Another important factor which negatives the plea of the 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.l/7. This plea of the tenant/respondent being an afterthought, cannot be entertained.
Once he acknowledged himself to be the tenant of the appellant in the suit shop, the principle of estoppel as enunciated in section 116 of the since repealed Evidence/ Act as re-incorporated in Art. '115 of Qanoon-e-Shahadat, 1984 comes into play, debarring the tenant /respondent to deny the title of his landlord. The learned Appellate court has misread and non-read the evidence in this respect and has exercised his jurisdiction illegally and with material irregularity, so far as his decision about the jointness of the property is concerned and consequently by setting aside this ,finding on the appellate Court I hold that the appellant s the landlord' of the suit shot; and the respondent Haji Haroon-ur-Rashid is tenanting the same under him and that the relationship of landlord and tenant exists between there.
7. As regards appellant's plea of requirement in good faith for personal use, suffice it to say that this very plea was not accepted by the Rewaji Courts right from the Court of Tehsildar to that of the Deputy Secretary Home and the High Court. No doubt those decisions cannot strictly operate as res judicata under the provisions of section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959 but under the general principle of res judicata they do stand in the way of the appellant because finality has to be attached to the judgments and orders- delivered by Courts of competent jurisdiction. The finding of the learned Appellate Court whereby, it did not accept the plea of the appellant regarding the bona fide personal use is, therefore, not open to exception and the same is hereby maintained.
8. The result is, that except for the modification of the impugned order of the Appellate Court as per decision in para. No.6 of this judgment, the instant appeal fails and is hereby dismissed, with no order as to costs.