1. ' The present Civil Revision Application has been filed assailing the concurrent findings of the Courts below whereby Suit No,140 of 1985, filed by the applicant, was dismissed.
2. ' Briefly the facts are that the applicant had filed Suit No,140 of 1985 alleging that she had been residing alongwith her husband Chandgi in evacuee house No,III B-65/1, ever since migration to Pakistan in the year 1947. Respondent No,2, her son, also used to reside with her. According to the applicant, her husband and respondent No,1, who is elder brother of her husband, owned joint property in India, alongwith two other brothers, namely, Phool Din and Gaini. Respondent No,1 being the elder member of.the family, was allowed by her husband and the aforesaid two brothers to file claim in respect of the property abandoned by them in India and get the claim verified and the expenses to be incurred were to be shared equally and that he would also obtain transfer of the properties in possession of the respondents and other brothers in his name and thereafter would transfer to his brothers, the properties in their possession respectively, for which respondent No,1 was duly paid by the applicant's husband. It is then stated that after obtaining the transfer of the properties, the said respondent never served any notice either during the lifetime of her husband or thereafter, claiming ownership of the property in her possession, wherein she had been living throughout in her own right by virtue of the family arrangement.
3. ' Respondent No,1, according to her, dishonestly and fraudulently filed Rent Application No,21 of 1983 seeking eviction of her son, respondent No,2 without impleading her, although she was a necessary party. Respondent No,2 in his written statement had specifically pleaded that the applicant was in possession of the suit property and was a necessary party. Nonetheless, the above rent application was granted by the Rent Controller.
4. ' It was pleaded by her that she being in continuous, open and hostile possession of the suit property against respondent No,1 for more than 20 years, had matured and perfected her title by law of adverse possession. Alternatively it was pleaded that the applicant not being a party in the above rent proceedings, the order of eviction passed therein was not binding on her. It was alleged that respondent No,2 had been acting against the interest of the applicant.
5. ' The applicant sought declaration that the eviction order passed by the Rent Controller in Rent Application No,21 of 1983 was not binding on her and that her title had matured and perfected in respect of the disputed property by adverse possession, she being in continuous, open and hostile possession. Consequential relief by way of injunction was prayed for restraining the respondent from ejecting her from the property in dispute.
6. ' Respondent No,1 in his written statement denied the allegations made in the plaint. He denied that he was the brother of the applicant's husband. It was, however, admitted that the husband of the applicant used to reside in the suit premises and became his statutory tenant after transfer of the property to him, against his verified claim and paid rent to him, till he died in 1979. It was further averred that the applicant was residing in another property, owned by him, bearing No,II-B/59, alongwith her second son, namely, Jamil and respondent No,2 was residing in the suit property.
7. Since respondent No,2 failed to pay rent to him, he first filed a suit for possession against the said respondent which was decreed but on appeal filed, the suit was dismissed as being not maintainable. He, therefore, filed the above rent application which was thoroughly contested by respondent No,2 but ultimately his eviction was ordered, against which he has filed rent appeal before this Court which is pending. It is specifically pleaded by him that the applicant was not joined as a party because of the fact that she was not in occupation of the suit property. It is further averred that the applicant was fully aware of the aforesaid rent proceedings commenced by him and if she had any interest, she should have joined as a party in the said proceedings. It was further averred that after decision of the rent case against respondent No,2, the said collusive suit had been filed to frustrate the eviction order passed against respondent No,2.
8. ' Respondent No,2 filed his written statement in which he supported the case set up by the applicant in the suit.
9. ' The learned Civil Judge framed as many as 9 issues. The applicant examined herself and three other witnesses and so also respondent No,1 examined himself and two other witnesses. On the basis of the evidence the learned trial Court reached the conclusion that the applicant was not in possession of the suit property and was residing with her other son in another property, stated hereinabove, which was also owned by respondent No,1. The applicant failed to establish that the suit property was acquired in the name of respondent No,1 as alleged by the applicant or that her husband was one of the transferees of the said property or that he had any interest therein. It was concluded that the applicant had failed to prove title by way of adverse possession.
10. ' The appeal filed against the aforesaid judgment and decree of the learned Civil Judge was dismissed.
11. ' I had heard the learned counsel Mr. M.H. Burney for the applicant and Mr. Hassan Mahmood Baig for the respondents.
12. ' The learned Advocate for the applicant contended that the applicant being one of the heirs of the recorded tenant was a necessary party in the rent proceedings and since she was not joined as a party, the order of eviction in so far as the applicant is concerned, is void ab initio and she cannot be evicted from the said property pursuant to the eviction order. It was next urged by him that the present suit was maintainable under Order XXI, Rule 103, C.P.C. and the Civil Court has jurisdiction to grant the decree prayed for.
13. ' On the other hand it was contended by the other side that the applicant was not in possession of the suit property and, therefore, though she is one of the legal representatives of the deceased tenant, was not a necessary party and that the suit under the circumstances of this case was not maintainable.
14. ' Reliance was placed on Mst. Kulsum Bai v. Mst. Nargis Bano 1985 SCM R 1275, Kabeeruddin v. Syed Sibtain Ahmed 1987 CLC 604 and Muhammad Azeem Oureshi v. Hakim Syed Akhtar Irshad and 4 others 1990 CLC 122.
15. ' I have gone through the evidence, certified copies whereof have been filed alongwith the memo. of revision. Although the applicant in her evidence persistently alleged that she was in possession of the suit property, but her witnesses P.W.2 Abdul Ghani and P.W.3 Abdur Rahman admitted in the cross-examination that the applicant was residing with her son Jamil. The former further stated that in between the houses of the said Jamil and respondent No,2, there is a lane. Thus the two properties are distinct and separate properties. In view of the aforesaid admission of the two witnesses examined by the applicant that she was not residing in the suit property, the question arises whether under the law the applicant was a necessary party in the proceedings commenced by respondent No,1 under the Sindh Rented Premises Ordinance, 1979.
16. ' Section 2(j) of the Sindh Rented Premises Ordinance, 1979 defines "Tenant" as under:--- " 'Tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes---
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant."
17. The above definition came up for consideration before the several learned Judges of this Court and they are unanimous that only such heirs of the tenant who are in possession or occupation of the premises after the death of the tenant are to be considered as tenants. In Kamal Afreen v.
18. Mansoor Ahmed Qureshi PLD 1983 Kar. 598, it has been observed that only those legal heirs, who are actually in possession or occupation of the premises after the death of the tenant become statutory tenants.
19. ' Similar view has been expressed in the cases of Ghulam Nabi v. Muhammad Sachal 1986 CLC 2858; Mukhtar Ahmad v. Afroz Begum 1989 ALD 289; Ghaffar v. Ghafoor Bhai through his Legal Heirs 1990 CLC 1210 and Parveen Akhtar and 3 others v. Shafique Ahmad and another 1990 CLC 2019.
20. ' In view of the aforesaid unanimous interpretation of the above provisions, there cannot be two 'opinions that the applicant, who is not in possession or occupation of the suit premises after the death of her husband, but her son respondent No,2 is in exclusive possession and occupation of the premises in dispute, neither she nor her other son Jamil would fall within the definition of the term 'tenant'. In such view of the matter, no exception can be taken to the order of eviction passed against respondent No,2, for non-joinder of the applicant in the rent proceedings.
21. It may be observed that the applicant had set up an absolutely unwarranted case vis-a-vis the joint acquisition of the verified claim and the transfer of the property against such claim, in the name of respondent No,1, her husband and the brothers of the latter. It has been established on record that respondent No,1 is not the brother of the husband of the applicant but is the son of brother of the father of applicant's husband. There is no evidence whatsoever on record in respect of the alleged verification of joint claim and transfer of property against such claim.
22. Similarly there is no evidence on record with regard to acquisition of title by prescription and on the contrary the very fact that she is not residing in the suit property, the question of her being in continuous, open, hostile and adverse possession does not arise at all.
23. ' Coming to the issue of non-maintainability of the suit, no doubt the cases relied upon by the learned counsel while interpreting the provisions of section 22 of the Ordinance and Order XXI, Rule 103, C.P.C., lay down that after the amendments of the aforesaid provisions by Sindh Act I of 1986 and Law Reforms Ordinance XII of 1972 respectively, no separate suit lies in respect of the dispute pending in the execution proceedings but all such disputes arising between the parties and relating to the execution, discharge or satisfaction of the order passed by the Rent Controller, shall be determined by the Controller and not by a separate suit. But section 22 of the Ordinance came up for consideration in the latest judgment of the Hon'ble Supreme Court in the case of Fahmida Begum v. Muhammad Khalid and another 1992 SCM R 1908, wherein Zaffar Hussain Mirza, J. (as he then was), concurring with Ajmal Mian, J. at page 1931 has observed as under:--- "However, it is one thing to concede a power to the statutory forum to recall an order obtained from it by fraud, but another to hold that such power of adjudication or jurisdiction is exclusive so as to hold that a suit filed in a Civil Court of general jurisdiction is barred. I am therefore in agreement with my brother that a stranger to the proceedings, in a case of this nature has two remedies open to him. He can either go to the special forum with an application to recall or review the order, or file a separate suit. Once he acts to invoke either of the remedies, he will, on the general principles to avoid a conflict of decisions, ultim4tely before the higher appellate forums, be deemed to have given up and forfeited his right to the other remedy, unless as held in Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221, the order passed by the hierarchy of forums under the Sindh Rented Premises Ordinance, leaves scope for approaching the Civil Court."
24. ' In view of the above dictum the suit filed by the applicant, who was not a party in the rent case, is hereby held to be maintainable.
25. ' The above revision being without any substance was dismissed with costs by a short order dated 30-8-1992 and above are the reasons for the same.