Ghulam Mustafa petitioner in this constitution petition has challenged the judgment dated 27-3- 1983 of the learned Additional District Judge, Lahore whereby the appeal of Mst. Muhammadi Begum, respondent No.1 challenging the order dated 24-4-1980 of the learned Rent Controller was accepted, the afore noted order dismissing the ejectment petition was set aside and the petitioner was directed to hand over the vacant possession of the shop in question within one month.
2. The facts necessary for appreciating the respective contentions of the parties are that property No.S. 50-R-10 commonly known as 10-Hall Road, Lahore was transferred to Abdul Rehman's by the Settlement Department and P.T.O. Dated 15-1-1960 was issued in his favour who thereafter associated in the transfer of the property Mst. Muhammadi Begum, respondent No.1 and one Khurshid Beg vide association deed (Annexure R.2). The revised P.T.O. Was issued in favour of all the joint transferees describing the share of Mst. Muhammadi Begum as 1/2 share and that of Khurshid Beg and Abdul Rehman's 1 /4th share each. An application was thereafter made by the transferees for issuing separate P.T.Os. And P.T.Ds. According to their respective shares but this request was disallowed by the Deputy Settlement Commissioner vide order dated 16-11-1962. A joint P.T.D. Was then issued in favour of the three transferees.
3.Ghulam Mustafa, petitioner, who claims to be in possession of two rooms on the ground floor towards the front side of the property since 1958 converted these two rooms into one shop and continued to occupy the same even after transfer of the property in question. The claim as to the time when the rooms were occupied is disputed by contesting respondent Mst. Muhammadi Begum as her case is that Ghulam Mustafa, as is apparent from C.H.Forms (Annexures R.7 & R.8) filed in 1959 by the occupants of the property known as 10-Hall Road, Lahore, was then not in possession of any room of the property, 10-Hall Road, Lahore and that Ghulam Mustafa came much after the transfer and continued to occupy, as her tenant, the two rooms converted into shop, presently in dispute.
4.An ejectment petition was filed by Mst. Muhammadi Begum in the year 1971 against the petitioner but the same was withdrawn. Thereafter, on 12-10-- 1976, another ejectment petition was filed by the contesting respondent against the petitioner on the ground that the shop in question was required for reconstruction alongwith main property for which building plan had already been got sanctioned from the Municipal Corporation. It may be noted that Khurshid Beg also sold his 1/4th share in favour of Mst. Muhammadi Begum, contesting respondent with the result that proprietary rights thereafter vested in Mst. Muhammadi Begum to the extent of 3/4th and remaining 1/4th continued to vest in Abdul Rehman's.
5. During the pendency of ejectment petition Ghulam Mustafa petitioner purchased from the heirs of Abdul Rehman's, 1/4th share in the property vide sale deeds dated 8-4-1979 and 15-3-1980. It may be noted here that the sale deeds do not contain any recital about the possession of the heirs of Abdul Rehman's, the vendors, over any specific portion or rooms of the property or about delivery of has possession of any such portion or rooms to Ghulam Mustafa, the vendee. The association deed (Annexure R.2) however, contains the recital that Muhammadi Begum is to own and possess the ground floor (Manzil-e-Zerian) while Khurshid Beg and Abdul Rehman's are to own and possess the upper storey. The petitioner after so purchasing a share vide sale deed dated 8- 4-1979 moved an application dated 3-7-1979 before the Rent Controller seeking permission to produce and prove the sale deed so as to advance the plea that the ejectment application was liable to be dismissed as he had become a co-owner of the building. Another application was moved on 6-1-1980 requesting the Rent Controller to dispose of the aforesaid application before hearing the final arguments in the ejectment petition. These applications were dismissed on 23-1- -1980. The petitioner then moved an application dated 19-4-1980 seeking permission to amend the written reply to the ejectment application so as to incorporate the plea that because of the purchase through two sale deeds, the ejectment application is liable to be dismissed for want of jurisdiction. This application was also dismissed by the learned Rent Controller vide order dated 19- 4-1980 observing that the purchase of the property had not affected in any manner the relationship of tenancy between the parties. It was, however, added that judicial notice of the sale deeds shall be taken while disposing the main ejectment petition. The learned Rent Controller vide order dated 24-4-1980 dismissed the ejectment petition as he was of the view that on the ground of additions and alterations, eviction of the shop cannot be obtained. The aforesaid order dismissing the ejectment petition was set aside on appeal of the contesting respondent by the learned Additional District Judge, Lahore vide judgment dated 3-9-1981. This led to the filing of constitution petition (W.P. 517/81) in this Court. The petition was accepted vide judgment dated 11- 11-1982. The judgment passed in appeal by the learned Additional District Judge was set aside and the appeal was remanded for fresh decision in accordance with law. The remand was directed with following observations: "In the circumstances of this case, the Rent Controller as well as the appellate authority were duty- bound to consider the effect of the purchase on the relationship of tenancy otherwise existing between the parties. This question has necessarily to be gone into in order to determine the jurisdiction of the Rent Controller. This being a jurisdictional question could not have been left undetermined by the Rent Controller firstly and then by the appellate authority."
6. The appeal was accordingly heard again and the learned District Judge vide impugned judgment dated 27-3-1983 again accepted the appeal and resultantly directed eviction of the petitioner from the shop in dispute. This led to the filing of the present constitution petition.
7. Learned counsel in support of the petition contended that the petitioner being owner of 1/4th share in the building, became co-owner in every part of the property and as such the Rent Controller ceased to have jurisdiction in the matter as a co-owner cannot be dispossessed except through a suit for partition. 1n support of the proposition reliance was placed on Muhammad Nawaz and others v. Sh. Abdul Latif and another (1971 SCMR 198), Mst. Sabira Sultana and another v. Bangul Khan and others (1974 SCMR 510) and Mirza Adam Khan v. Muhammad Sultan. ( PLD 1975 S.C. 9). It was further contended that the finding that the petitioner is a tenant of the contesting respondent having been not based on record, stands vitiated, and that the petitioner even otherwise is not a tenant of the contesting respondent and as such the impugned eviction order is illegal; that as the question of title of the contesting respondent was raised, the learned appellate authority following the rule enunciated in the cases of Province of Punjab and another v.
Mufti Abdul Ghani (PLD 1985 S.C. 1) and Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) should have decided the issue of relationship of tenancy against the landlord with the direction to get his title established from the Court of general jurisdiction before seeking ejectment.
8. Learned counsel for the contesting respondent in reply submitted that the petitioner stands estopped from urging that he is not a tenant of the contesting respondent as in his better statement before the Rent Controller he had admitted the tenancy and as previous petition was decided on the premises that the relationship of tenancy existed between the parties. It was further submitted that no dispute as to title was either raised or was to be decided by the Rent Controller or by the appellate authority as the contesting respondent is admittedly owner of property to the extent of 3/4th share while the petitioner has purchased 1/4th share of Abdul Rehman's in the property from his heirs. He submitted that the judgments of the Supreme Court do not as such apply to the present case. Lastly, it was contended that the principle that a co-owner cannot dispossess his co-owner from the joint property is not applicable to the instant case as the petitioner having entered the shop in dispute as a tenant of the respondent, relationship is to be governed by the provisions of the Punjab Rent Restriction Ordinance and the contesting respondent as such is entitled to seek ejectment. It was argued that in the garb of purchase of 1/4th unspecified share in the property, the petitioner cannot be allowed to oust the landlady from the specified portion of which she is in exclusive possession through her tenant. In support reliance was placed on Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCMR913).
9. I have considered the respective submissions of the learned counsel for the parties and have also gone through the petition and the other documents available on record. The plea that the petitioner is not a tenant of the respondent and that finding to this effect returned by the appellate Court is illegal is without merit. This plea in this second round of litigation is otherwise not available to the petitioner. In the first round the plea as is apparent from para. 20 of the judgment in earlier petition (W.P. 5177/81) was that "the appellate authority despite the fact that the question of sale and its effect on the tenancy was raised before him, failed to determine the said question and as such, has acted illegally in accepting the appeal."
It was because of the above-noted plea that this Court made the observations as under: "The appellate authority in these circumstances before setting aside the said order was called upon to go into the question and to determine its effect if any, on the relationship of tenancy otherwise brought into existence through the rent deed executed by the petitioner.
It is apparent that plea of non-existence of relationship of tenancy was not pressed in the first round of litigation in view of the admission of the petitioner contained in the statement before framing of issues to the effect that he had executed the rent deed and was paying rent to the landlady. The appellate Court in its judgment made specific mention of this admission. Even a reference to the; contents of the written reply to the ejectment 'petition would show that the payment of rent to the landlady stands acknowledged. For all these reasons, it is idle to contend that relationship of landlord and tenant did not exist between the; parties. The plea of the learned counsel in this respect being without basis is hereby repelled.
10. The next plea, that the appellate authority following the rule laid down in the case of Rehmat Ullah (supra) should have decided the issue as to existence of relationship of tenancy against the landlady as she is not admittedly exclusive owner of the property and as bona fide dispute about the title existed, has also no merit. The respondent landlady admittedly owns 3/4th share while 1/4th: unspecified share has come to vest in the petitioner. Neither any question of title; arose for decision nor the petitioner has succeeded in creating a reasonable doubt on the title of the landlady in the building in question. IC will, therefore, be seen) that the rule laid down by the honourable Supreme Court in the above noted cases as such does not apply to the instant case. It appears that this question was raised merely to confuse the real issue involved in the matter.
11. The only question which requires consideration is, whether the petitioner can successfully resist his eviction from the shop in dispute, possession of which he holds as a tenant on account of purchase of a share in the property. The precedents cited may be noticed at this stage. In the case of Muhammad Nawaz (Supra) a godown was jointly owned by A, B, C and D. D. Sold her share to one L. The godown was in occupation of one M who had sub let it to another person R. A, B, C obtained an order of ejectment under section 13, West Pakistan Urban Rent Restriction Ordinance, 1959 against M on the ground of his sub-letting the premises to R. R. Was brother of L who purchased the share of D. The execution of ejectment decree obtained by A,B and C was resisted by L on ground that R, his brother, was in occupation as his own tenant. It was held that in the circumstances, the allegation that R, was tenant of L could not be held to be far fetched and the High Court was right in restraining, A,B, and C from evicting R pending partition suit filed by L. This case on facts is distinguishable as one of the co-owners was apparently asserting ~ his exclusive possession over the jointly owned property through a tenant. This appears to be the reason for staying ejectment as on principle a co-owner in exclusive possession cannot be dispossessed even by a co-owner specially during the pendency of a partition suit. The case as such does not help the petitioner.
12. The facts and circumstances of the case of Mirza Adam Khan (Supra) have nothing in common with the case in hand. The observations made in this precedent which were relied upon by the learned counsel for the petitioner, read as under:- "We think that the High Court has rightly observed that on the death of a Muslim intestate his estate devolves upon his heirs who succeed to it in specific undivided shares in proportion to their inheritance and each heir becomes the owner of a definite fraction of every part of the estate until partition takes place. A co-owner does not, therefore, become a tenant of the other owners, simply by being in possession of property in excess of his own share, and he would therefore, be liable to pay compensation to the other co-owners for the excess occupied by him. In this view of the matter he does not become a tenant, and no question would arise of taking proceedings against him under the Rent Restriction Ordinance:"
The position of law summed up in the aforequoted para reflects the true position obtaining between the co-owners when on death of a Muslim intestate, his estate devolves on the heirs but this principle cannot be invoked by the petitioner in the circumstances of the instant case.
13. The other precedent relied upon is the case of Mst. Sabira Sultana and another (supra). The facts of the case are that a house belonging to one Muhammad Tufail on his death devolved on his heirs, Sabira Sultana and Abbas Haider appellants and respondents Nos. 2 to 6. Respondent No.3 being the eldest son of late Muhammad Tufail got executed power of attorney in his favour from his mother, on her own behalf and on behalf of other minor respondents. Thereafter respondent No.3 obtained loan on two occasions through two mortgage deeds executed by him on his behalf and on behalf of other respondents on the basis of aforesaid power of attorney. The mortgagee on the basis of mortgage filed ejectment proceedings against all the heirs of late Muhammad Tufail including Mst. Sabira Sultana and Abbas Haider appellants. The Rent Controller passed an. Order of ejectment which was appealed against. The appeal was compromised and respondent No.3 undertook on his own behalf and on behalf of appellants and other respondents to deliver possession of the house. Mst. Sabira Sultana and Abbas Haider then filed a suit for declaration that power of attorney executed by their mother on her own behalf and on behalf of others in favour of respondent No.3 and subsequent mortgage deeds in favour of the mortgagee were null and void and that their share i.e. 21/80 in the house in dispute remains free from all encumbrance and as such the eviction order passed was not binding on them. They. Also applied for grant of interim injunction restraining respondent No.3 from delivering possession of the property to the mortgage. The learned trial Judge granted interim injunction restraining the mortgagee from pursuing the execution proceedings in respect of the whole house and also restrained respondent No.3 from putting the mortgagee in possession of the house in dispute till the decision of the case. On appeal, the learned District Judge vacated the interim injunction but in revision the High Court restored the interim injunction issued by the learned trial Court to the extent of 21/80 share in the property in dispute. The Supreme Court upheld the order of the High Court passed in revision with the observations that the result, however, of issuing interim injunction is that the appellants cannot be evicted from the entire house unless the property is partitioned. It will be seen that the injunction to the extent of shares of other respondents who had executed the power of attorney on the basis of which mortgage was created, was not granted. This precedent thus does not support the plea advanced by the petitioner.
14. Now the case of Nazir Ahmad v. Mst. Sardar Bibi and others (supra) relied upon by the learned counsel for the landlady may be examined. In this case the learned Judges of the Supreme Court held that the contention of the learned counsel that the petitioner having become an owner in the suit property could not be proceeded against under the Rent Restriction Ordinance, has no merit. It was observed that admittedly the alleged sale transaction of a certain share in the suit property took place during the pendency of the ejectment petition and the Rent Controller who was exercising a limited jurisdiction under the Rent Restriction Ordinance could not adjudicate upon the ownership rights of the parties and that the petitioner is, therefore, at liberty to seek his remedy in the Civil Court as observed by the learned Judge in his chamber. The honourable Judges of the Supreme Court also observed that the petitioner tenant 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. Hence, under no circumstances, the petition for ejectment of the petitioner could be said to be incompetent and the Courts below were justified in holding so. This case applies fully to the facts of the instant case. Learned Judges while making the aforesaid observation had in view obviously the well established principles of law that a co-owner cannot dispossess a co-owner in exclusive possession of the joint property and that a co-sharer who is in exclusive possession without let or hindrance by the other co-sharers can transfer it to a third person subject to the right of other co-sharers to obtain a partition. Even if a co-sharer is in possession of share in excess of his entitlement still he cannot be dispossessed by the other co-sharers except through a suit for partition and till then he is at best entitled to claim compensation. This is the principle which has been highlighted by the Supreme Court in the case of Mirza Adam Khan (Supra).
15. In the instant case exclusive possession -of the respondent/ landlady would stand established once it is accepted that the petitioner was a tenant of the respondent. The petitioner admittedly was not paying the rent to all the co---owners but only to the respondent landlady. It will be pertinent to note that the Agreement of Association (Annexure R.2 with the written statement) which stands mentioned in the P.T.O. (Annexure R.3) and the Permanent Transfer Deed (Annexure with the petition) was also relied upon to establish ownership with possession of the demised premises. The plea to the effect that the plan for reconstruction and additions got sanctioned from the Municipal Corporation bears signature of Abdul Rehman's the co-owner is inconsequential as under the relevant law, all the co-owners are to submit jointly the plan for reconstruction and additions. The affixing of signature by a co-owner on such plan would not in any way refute the plea of exclusive possession of a co-owner over a specified part of the property held jointly. It may also be noted that the shop' in dispute abutts on the Hall Road, one of the most important commercial localities of Lahore while Abdul Rehman's from whom the petitioner purchased one- fourth share in the property was assertedly in possession of a portion on the upper storey of the building. Moreover it would amount to depriving the co-owner of his exclusive possessory rights over a part of the joint property, if the tenant is allowed to retain that very part which he held as a tenant and from which he is otherwise liable to be ejected under the Rent Laws merely because of purchase of a share in the joint property during the pendency of the ejectment proceedings. Would it be just and equitable to refuse ejectment of a tenant in the portion of the building abutting on Hall Road or The Mall, Lahore on the ground that he has purchased a portion of the building abutting on the back street or on the upper storey and thus equipped himself with the right to claim the demised portion in a suit for partition on the basis of possession. It will be pertinent to point out that the principle applicable to the partition of joint property is that a co-owner who is in physical possession of a part of joint property which is not in excess of his share is Sallowed ordinarily to retain that very part and his possession even on partition is not to be disturbed. All these and the allied questions including the market value of the part claimed and the share are to be raised and resolved by the Civil Court in a partition suit. These matters are not to be gone into in the summary enquiry which a Rent Controller is required by law to hold. The Rent Contorller under the Punjab Rent Restriction Ordinance is to determine the question of existence of relationship of landlord and tenant and is to regulate the said relationship in accordance with the provisions of the Ordinance. Once the existence of that relationship is established and the landlord has satisfied the Rent Controller about his title, jurisdiction of the Rent Controller would be available to order ejectment on any one or more of the grounds given in Section 13 of the Ordinance. In the circumstances of the present case, the ejectment cannot be refused on account of purchase of a share by the petitioner as qua the shop in dispute, the position of the petitioner is that of a tenant.
The petitioner will, however, be at liberty to seek partition of the joint property by filing a suit for partition with the further right to raise all the pleas available to him under law. Subject to this observation, this petition fails and is dismissed with cost. The petitioner is however, allowed one month's time to deliver the vacant possession of the shop in dispute to the respondent/landlady.