' RUSTAM S. SIDHWA, J.---This is an appeal by Syed Izhar-ulHassan Rizvi, appellant, against the judgment of a learned Single Judge of the Lahore High Court, dated 19-7-1989, dismissing his writ petition.
2. The brief facts of the case are that on 29-9-1972 Mian Abdur Rehman, present respondent No,1, and his brother Abdul Mannan and mother Mst. Sardar Begum rented out a shop to Syed Izharul Hassan Rizvi, appellant, on a rental of Rs,250 per mensem. On 8-10-1980 Mian.Abdur Rehman, respondent filed an ejectment petition against Syed Izhar-ul-Hassan Rizvi, appellant-tenant, for the grounds of default and personal need of his son, Abdul Manan. The appellant contested the ejectment petition. The learned Rent Controller, by his order dated 28-2-1983, decided the issue of default against the landlord and the issue regarding personal need in his favour and ordered ejectment of the appellant. The latter filed an appeal, which was accepted by the Appellate Court on 13-6-1983. The Appellate Court decided both the issues in his favour and dismissed the ejectment petition. The respondent then filed Writ Petition W.P. No,3928 of 1983 in the High Court, which was accepted on 11-6-1986 and the matter was remanded to the learned appellate Judge for a fresh decision. During the pendency of the appeal, Abdul Manan, brother of the respondent, who was one of the three joint owners of the property, sold his share to the extent of 7/16th in the shop in dispute in favour of the appellant through a registered sale-deed. The appellant then 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 co-sharer and was thus no more a tenant under him and therefore the ejectment petition be dismissed. He also applied to the learned Appellate Court for sending the case to the learned Rent Controller for further inquiry into the fact whether another shop quite adjacent to the shop in dispute had been got vacated by the respondent from another tenant and instead of occupying the same he had alienated it to one Mst. Tahira Hafeez. The Appellate Court, by its judgment dated 13-10-1986, dismissed the aforementioned applications. The appellant filed a Writ Petition W.P. No,4731 of 1986 in the High Court against the said order, which was dismissed by that Court on 18-4-1987, with the observation that the appellant could file an objection petition, if the appeal was ultimately decided against him or pursue other remedies available to him.
3. The appellant then filed a suit for possession through partition against Mian Abdur Rahman*, his brother Abdul Manan and mother Sardar Begum in December, 1986.
4. On 20-12-1986 the appellant 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 memorandum of appeal, which was dismissed on 1-10-1987. Feeling aggrieved, the appellant filed writ petition W.P.
No,5237 of 1987, which was accepted on 30-1-1988, with the observation that since the appellant's appeal was still pending before the learned Addl. District Judge, there was seemingly no legal objction to the raising of the said matter before the Appellate Court, which, if raised, could be duly considered and disposed of in accordance with law.
5. On 16-2-1988 the appellant 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 appellant.
6. The Appellate Court, by order dated 3-3-1988, dismissed the appeal filed by the appellant and found the personal need of the respondent 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 the appellant as tenant should first vacate the possession in favour of the landlord and thereafter dispute his title.
7. Being aggrieved by the above order, the appellant filed a writ petition; which was dismissed on 19-7-1989. The learned Single Judge held that the entitlement of Abdul Manan in property in dispute and his competency to transfer a share to the appellant was subjudice in the Civil Court and till such time his claim was accepted by the Court, he could not avail of the benefit of the sale- deed in his favour. The learned Judge also held the appellant having entered in occupation of the demised property as a tenant, was estopped from challenging the title of the landlord.
8. Not satisfied with the above judgment, the appellant petitioned this Court for leave to appeal.
During the pendency of the petition, the Civil Court also passed a preliminary decree in the appellant's suit for partition by its judgment dated 29-1-1989. Accordingly, leave was granted in this case to consider the effect of this judgment.
9. On behalf of the appellant it is submitted that the appellant having secured the preliminary partition decree became co-sharer in the property and so long as he was in possession, he could not be evicted. Until a decree for partition was passed and it was found that he was not entitled to the property in his possession. In this connection learned counsel relies on Muhammad Nawaz v.
Sheikh Abdul Latif (1971 SCMR 198). It is further submitted that under section 116 of the Evidence Act which deals with estoppel, the tenant can still show that the landlord's title has come to an end or been extinguished subsequent to the commencement of the tenancy. In this connection the learned counsel relies on Muhammad Siddiq v. Arash Bibi (1985 CLC 1701).
10. On behalf of the respondent it is submitted that the appellant's possession as co-sharer cannot be sustained and the eviction decree must take effect. In this connection learned counsel relies on Allah Yar v. Addl. District Judge (1984 SCM R 741) and Nazir Ahmad v. Mst. Sardar Bibi (1989 SCM R 913).
11. We have heard the arguments of the learned counsel for the appellant and the respondents and have perused the record. It is an admitted position that the appellant has now secured the preliminary decree for partition of his 7/16th share and that the matter is now subjudice in the Appellate Court. It is, therefore, clear that prima facie the appellant has established presently his right to 6/17th share in the disputed propety and he has become a co-sharer to that extent. In Allah Yar's case (supra) the tenants had only an agreement for purchase in their favour from the previous owner through receipt of payment of earnest money. The Rent Controller found that the receipt which was executed by the husband of the previous owner was not supported by any proof that the husband had a power of attorney from his wife to sell the property. He therefore held that the receipt was not issued by an authorised person. In these circumstances, the tenants' claim was rejected and eviction ordered, which was upheld right upto the Supreme Court. The Supreme Court held that the tenants could not take advantage of section 53-A of the Transfer of Property Act, as their suit for specific performance was still pending. In Nazar Ahmed's case (supra) the tenant had purchased 49/288th share in the property through registered sale-deed. The Rent Controller rejected the plea of the tenant that he was a co-sharer entitled to retain possession. This position was upheld right upto the Supreme Court on the ground that the tenant was estopped from challenging his position as a tenant. In Muhammad Nawaz's case (supra), where the brother of a person in occupation had secured sale-deed in respect of a share of the property from a co- owner, the Supreme Court upheld the High Court's view that the vendee was in possession of the disputed property through his brother, who was occupant, and as in law a co-sharer in possession of joint property could not be evicted without filing a suit for possession, the High Court's order restraining the landlord from exec Ling the Rent Controller's order against the occupant was maintained, the suit for partition being allowed to proceed. This view appears to be the correct view. In Allah Yar's case (supra) the gcnuiness or otherwise of the receipt produced by the tenant to justify the purchase of the disputed property from its previous owner was not finally decided and the suit for specific performance filed by the tenant to establish the validity of his purchase had also not been decreed. In these circumstances, the learned Judges deciding that case rightly came to the conclusion that the tenant could not deny the relationship of landlord and tenant. In Nazir Ahmad's case (supra) it appears that though the finding of the learned Judges was to the effect that the tenant had become co-owner in the property, yet they held he could be ejected. It was not forcefully pointed out that being a co-sharer in the property, so long as he remained in possession, he could not be evicted until a decree for partition had been passed and it was found that he was not entitled to the property in his possession. The learned Judges basically based their decision on the fact that the tenant could neither challenge the status of his landlady qua suit property nor the existence of relationship of landlady and, tenant between the parties, notwithstanding the fact that he had become a co-owner in the property. Unfortunately it was not pointed out that section 116 of the Evidence Act which embodied the doctrine of estoppel was not exhaustive and that the tenant could plead that his landlord's title had come to an end or been extinguished subsequent to the commencement of his tenancy. If any authorities are required for this view, Kumar Kirishna Prosade Deo Lal Singha v. Barabona Coal Concern Limited (AIR 1937 P C 251) and Muhammad Siddiq v. Arash Bibi (1985 CLC 1701) may be referred. In these circumstances, it would appear that the appellant, since he is in possession, cannot be evicted unless in the partition suit filed by him it is finally decided that he has no claim to the disputed shop.
12. For the foregoing reasons, this appeal is allowed and the judgment of the High Court dated 19- 7-1989 is set aside, without any order as to costs. However, in case in the partition suit filed by the appellant, which is now pending before the Appellate Court, it is finally decided that the appellant has no claim to the shop in his possession, then within one month of the said final decision, the respondents can apply to this Court for review of this judgment. Till then, no ejectment proceedings shall be taken against the appellant.