1. ' The appellant filed application for ejectment against the respondent in respect of shop situated on Plot No,518-C, P.E.C.H.S. Commercial Area Karachi. The appellant alongwith Abdul Ikram, Abdul Basit, Mst. Amtul Mannan and Mst. Amtul Qayyum inherited the properties left by their father. All these properties are situated in Pakistan Employees Cooperative Housing Society Limited and with the agreement of the parties their names were mutated in the following manner: "(1) Residential house on Plot No,207-A, Block No,2, measuring 1,000 sq. Yards; P.E.C.H.S. Karachi in the names of Mr. Abdul Ikram and (2) Mr. Abdun Naseer. (2) Commercial Plot No,517-C, Block No,2, measuring 70 sq. Yards; in the name of (1) Mr. Abdul Basit and (2) Mst. Amtul manan. (3)
2. Commercial Plot No,518-C, Block No,2, measuring 70 sq. Yards; P.E.C.H.S. In the name of (1) Mr. Abdun Nasir and (2) Mst. Annul Qayyum.
3. ' Plots No,517-C and 518-C are adjacent plots on which two buildings are constructed with a common staircase and passage between these buildings. Each building consists of two flats and two shops. According to the mutation order building on Plot No,517-C was mutated in the name of Abdul Basit and Mst. Amtul Mannan while building on Plot No,518-C was mutated in the name of Abdul Naseer the appellant and Mst. Amtul Qayyum. After the mutation the appellant served a notice under section 18 of the Sindh Rented Premises Ordinance on the respondent informing that the shop occupied by him has been transferred in his name and he should continue to pay agreed rent to him. The respondent accordingly paid rent to him. Thereafter on 22-3-1984 the appellant served a notice requiring the respondent to hand over vacant possession as he required the same for his own personal requirement. As the request was not complied with the appellant filed application for ejectment which was dismissed by the learned Controller.
4. ' The respondent has raised the plea that property is owned by all the legal heirs and not by the appellant alone and further that shops adjacent to the shop of the respondent have been let out time and again and if there would have been any genuine need the appellant would have occupied the said shop. Mr. Dastgir the learned counsel for the respondent has contended that the mutation is not a proper transfer in the eyes of law. In this regard the learned counsel has referred to PLD 1974 Quetta 13 where it was observed that transfer under section 13 of West Pakistan Urban Rent Restriction Ordinance covers the same meaning as contemplated by the Transfer of Property Act and therefore after the death of owner the property stands transferred to his legal heirs. There can be no cavil with this proposition. The question in this appeal is whether the mutation order should be treated a proper transfer by which the appellant and Mst. Amtul Qayyum are owners of building on Plot No,518-C or that all the legal heirs continue to be owner of the said building. It is a general practice that upon mutual agreement between the legal heirs their names are mutated in the records of the Cooperative Housing Society in terms thereof. This practice seems to be invoked in this society also and likewise it was after due publication and on complying with proper procedure as is obvious from Ex.A-1, the Society mutated the properties separately in the name of legal heirs as agreed between them. By virtue of this mutation the appellant became the owner of the property on Plot No,518-C alongwith Mst. Amtul Qayyum, his sister. I, therefore, see no reason to hold that all the legal heirs are the owner of the entire property. This observation is however made considering the evidence on record and in respect of the present case. Furthermore after the notice under section 18 was served the respondent agreed to pay rent to the appellant.
5. ' Mr. Khawaja Mahfoozur Rehman the learned counsel has contended that the appellant and Mst.
6. Amtul Oayyum have agreed to their specific share in the property and the shop occupied by the respondent and flat situated above this shop is in the ownership of the appellant and the shop and flat adjacent to it on Plot 518-C belongs to his sister Mst. Amtul Oayyum. Therefore the crux of the contention is that the appellant is the owner of the shop occupied by the respondent and has no concern with the other shop. Except the statement of the appellant no agreement or any independent evidence has been produced to prove that this arrangement exists between these two parties.
7. ' The learned counsel for the respondent has contended that the requirement of the appellant is not bona fide he is carrying on business in a shop situated on Plot No,517-C and secondly that the second shop on Plot No,518-C has been let out to various persons and is now closed. On the other hand Mr. Khawaja Mahfoozur Rehman has contended that the shop occupied by the appellant on Plot No,517-C belongs to his brother as is obvious from the mutation letter and that Rent Case No, 2269/85 was filed for his ejectment from that shop which has been disposed of by a compromise in which the appellant has undertaken to vacate the same when he is able to get his shop which is occupied by the respondent. A certified copy of the application and order has been produced today. Be that as it may, the fact remains that the shop in which the appellant is carrying on business does not belong to him. There is evidence on record that the appellant and his brother Abdul Basit who owns the said shop are not on good terms and there have been disputes and quarrels to the extent that the matter had been reported to the police. In these circumstances the assertion by the appellant that he has been asked to vacate the premises seems to be proper and reasonable. Secondly, the shop adjacent to the appellant's shop on Plot No,518-C is stated to have been rented out to other persons. In these regards the evidence of the witnesses of the respondent is very material. Mansoor Ahmed has stated that the shop was occupied by one Iqbal who was carrying the business of repairing air-conditioners and it is closed for the last six months. He has further stated that this shop was rented out about three or four years back to Iqbal. He had sworn his affidavit on 6-5-1986 and therefore three or four years back means about 1982 or 1983.
8. Considering the time factor during which the shop must have been rented out, this very fact cannot malitate against the bona fide requirement of the appellant. Moreover the evidence is that the shop is closed, this is completely different from vacating the shop. Considering all these facts in my view the appellant has made out a case for personal bona fide requirement. The learned Controller does not seem to have properly appreciated the evidence on record and has completely ignored the mutation letter which was produced by the appellant. The impugned order is set aside and the appeal is allowed. The respondent shall vacate and hand over vacant possession of the premises to the appellant within a period of six months.