Mian Abdur Rehman respondent rented out a shop to Syed 1zhar-ul--Hassan petitioner in the year, 1972. On 8-10-1980 Mian Abdur Rehman filed an ejectment petition against Syed Izhar-ul-Hassan petitioner (tenant) on the grounds of default and personal need of his son (Abdul Hanan). The petitioner contested the ejectment petition. The learned Rent Controller framed the following issues:
(a) Whether the respondent has committed default in the payment of rent for the disputed period?
OPP.
(b) Whether the petitioner requires the shop in good faith for the use and occupation of his son Abdul Hanan? OPP.
(c)Relief.
After recording evidence the learned Rent Controller by his order dated 28-2-1983 decided the issue of default against the landlord and issue regarding personal need in his favour and ordered ejectment of the petitioner. The latter filed an appeal which was accepted by the learned Appellate Court on 13-6-1983. Learned Appellate Court decided both the issues in his favour and dismissed the ejectment petition. Mian Abdur Rehman landlord filed W.P. No.3928/83 in the High Court which was accepted on 11-6-1986 and the matter was remanded to the learned Appellate Court for a fresh decision. During the pendency of the appeal Abdul Mannan, brother of Mian Abdur Rehman (landlord) sold his share to the extent of 7/16th share in the shop in dispute in favour of the petitioner (tenant) through a registered sale-deed. He filed an application before the appellate Court that since he had purchased the share of Abdul Mannan out of the joint property of the respondent, he had acquired the status of a co-sharer and was thus no more a tenant under him, the ejectment petition be, therefore, dismissed. He also applied to the learned appellate Court for sending the case to the learned Rent Controller for further inquiry into the fact that another shop quite adjacent to the shop in dispute had been got vacated by the landlord from another tenant and instead of occupying the same he had alienated it to one Mst.Tahira Hafeez. The appellate Court by his judgment dated 13-10-1986 dismissed the aforementioned applications. The petitioner filed W.P. No.4731/1986 in the High Court against the said order which was dismissed by this Court on 18-4-1987 with the observation that the petitioner could file objection petition if the appeal was ultimately decided against him or pursue other remedies available to him. The petitioner filed a suit for possession through partition against Mian Abdur Rehman, his brother Abdul Mannan and mother Sardar Begum in December, 1986 which is still pending and is being contested by Mian Abdur Rehman etc. (landlord).
2. On 20-12-1986 the petitioner moved an application under Order XLI Rule 2 read with section 151, C.P.C. Before the appellate Court for permission to add additional grounds in the memo of appeal which was dismissed on 1-10-1987. Feeling aggrieved the petitioner filed W.P. No.5239 of 1987 which was accepted by this Court on 30-1-1988 with the observation that since the appeal of Syed lzhar- ul-Hassan petitioner was still pending before the learned Additional District Judge, there was seemingly no legal objection to the raising of point in controversy before the appellate Court which if raised shall be duly considered and disposed of in accordance with law. On 16-2-1988 the petitioner (tenant) filed an application under section 151, C.P.C. Read with section 15(6) of the Rent Restriction Ordinance before the appellate Court that since he had become a co---sharer in the disputed property by virtue of sale of substantial share in his favour the relationship of landlord and tenant ceased to exist and unless the question of title was decided by the Court of competent jurisdiction the appellate Court had no jurisdiction to decide the appeal in the changed circumstances. It was further stated that since civil suit with regard to partition of the property in dispute involving the point of entitlement of parties was pending adjudication in the Civil Court the decision of the appeal was likely to cause serious prejudice to the petitioner. The learned appellate Court by order dated 3-3-1988 dismissed the appeal filed by Syed lzhar-ul-Hassan petitioner and found the personal need of the landlord as bona fide and genuine. The application made by him under section 151, C.P.C. Was also held to be without any merit. It was observed that tenant should first vacate the possession in favour of the landlord and thereafter dispute his title.
Hence this writ petition.
3. It is contended that the learned appellate Court did not apply independent judicial mind to the facts and evidence about the bona fide personal need of respondent and was influenced by the observation made by this Court in W.P.No.3928 of 1983, that the purchase of 7/16th share in the joint property of which the shop in dispute was also a part from Abdul Mannan brother of Abdur Rahman respondent was substantiated by several documents, that principle of estoppel was not properly decided and that the evidence on the question of personal need was misread.
4. The respondent-landlord has strongly contested the petition. He has not only denied the factum of the petitioner having become a co-sharer in the property in dispute but has also asserted on the principle of estoppel that he cannot raise this plea till he surrenders the possession to him.
According to him the alleged sale-deed was mala fide and fraudulent because Abdul Mannan (Vendor) had no connection or interest in the property in dispute. He adds that the tenancy between him and the petitioner was admitted to have come into being in 1972 and the petitioner continued making payment of rent to him through money order and on his alleged refusal approached the Rent Controller, seeking permission to make deposit of rent in his favour and after the grant of permission started depositing rent in Court in his favour, that even during the course of his statement as R.W. 7 he admitted the factum of relationship of landlord and tenant. That a private partition had taken place between the co-sharers and the shop in dispute had fallen to the share of the respondent, that the jurisdiction of the learned Rent Controller and that of the appellate Court was limited and the question of title could not be gone into by them, that once the relationship of landlord and tenant was admitted the provisions of Qanoon-e-Shahadat estopped the tenant from denying the title of the landlord; that the evidence on record fully proved the bona fide personal need of the respondent that he wanted the shop for the business of his son Abdul Mannan.
5. Syed Izhar-ul-Hassan petitioner had entered the shop as a tenant under Mian Abdur Rehman etc. At a specified monthly rent. The share of Abdul Mannan was purchased by him during the pendency of ejectment proceedings. The suit for partition of property filed by the petitioner against Mian Abdul Rehman, landlord and others is being contested by them. It was held in Nazir Ahmad v.
Mst.Sardar Bibi and others 1989 SCM R 913 "that admittedly the alleged sale transaction of a certain share in suit property having taken place during the pendency of ejectment proceedings, the Rent Controller who was exercising limited jurisdiction under Rent Restriction Ordinance could not adjudicate upon the ownership rights of the partiesThe petitioner, notwithstanding the purchase by him of a certain share from the disputed property, could neither challenge the status of the respondent as landlady qua the suit property nor the existence of relationship of landlord and tenant between the parties". It was further held that the petition for ejectment could not be said to be incompetent on that ground. In W.P. No.5232 of 1988 Muhammad Islam v. District Judge, Kasur etc. It was observed "that sale agreement by the heirs of Haji Muhammad in respect of 1/8th share has not the effect of extinguishments of the tenancy right either whole or in part. Muhammad Islam continued to be rent paying tenant of the respondent and the afore stated sale agreement did not materially affect this legal status". W.P. No.3577 of 1988 is another authority on this point. The entitlement of Abdul Mannan in the property in dispute and his competency to transfer the same in favour of the petitioner is sub judice in the Civil Court. The respondent does not admit the claim of the petitioner to have become a co-sharer in the property in dispute and till such time his claim is declared by a Court of competent jurisdiction he cannot be granted any benefit of the said sale- deed. In Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 it was held that tenant cannot deny relationship of landlord and tenant till he is able to obtain a decree from Civil Court about the genuineness, validity and effect of the receipt of payment of the earnest money produced by him. In Muhammad Idrees v. Mst. Sara Begum and others 1986 SCMR 795 it was held that the petitioner having entered in occupation of demised property as tenant and that tenancy still subsisting, was estopped from questioning title of landlord.
In the present case the petitioner was inducted in the shop in dispute as a tenant. He acknowledged the respondent as such and had been remitting rent to him through money order and is now depositing the same in Court in his favour. As regards the personal need of the respondent, there is credible material on record to prove that his requirement of shop in dispute for his son Abdul Hannan is bona fide and genuine and that at the time of filing ejectment petition no other premises were available to him. Abdul Hannan had also appeared in the witness-box and stated on oath that he wanted to run stationery business in the shop in dispute. The petitioner has failed to show that the demand of the landlord is mala fide. Learned appellate Court has given cogent reasons in support of his finding that the need of the respondent is genuine and it is wrong to say that it was influenced by the observation of this Court in W.P. No.3923 of 1983. There is a concurrent finding of fact on this issue which is based on evidence and does not show any jurisdictional defect or misapplication of any law or principle. I do not, therefore, feel persuaded. To interfere with the impugned orders in the constitutional jurisdiction of this Court and accordingly dismiss the writ petition with costs.
Since it is a business premises the petitioner is allowed two months time to vacate it.