' Briefly stated facts of the case out of which this SA.0 has arisen are that the respondents filed an application seeking ejectment of the petitioners regarding a shop situate in Khata No, 143, Dera Ghazi Khan on 14-3-1987. This ejectment petition has been contested by the appellants on the grounds that the relationship of landlord and the tenants does not exist between the parties and that the appellant is co-sharer in the Khata on the portion whereof the shop in disptue in situate and possess the shop as co-owner, therefore, till partition can retain possession of the shop in question as a co-sharer and hence the ejectment petition is liable to be dismissed. It is further contended that the property in question is situated beyond the Municipal Limits' and as such a petition under the provision of Urban Rent Restriction Ordinance, 1959 is not maintainable.
Objections of misjoinder and wrong description of the property have also been raised and pleas of the wilful default, subletting, bona fide personal need and requirement of the shop for re- construction, raised by the respondents, have also been controverted.
2. On the basis of the pleadings of the parties, learned Rent Controller framed the following issues:- --
(1) Whether the premises in dispute is situated within the Municipal Limits and is an urban property governed by the Rent Restriction Ordinance? OPP.
(2) On proof of the preceding issue, whether the respondents are no longer tenants under the petitioners over the demised premises? OPR.
(3) Whether the petition is bad for misdescription of the tenanted premises? If so, its effect? OPR.
(4) Whether the petition is bad for misimpleadment of minor respondent No,4 and misjoinder of parties? If so, its effect? OPR.
(5) Whether the respondents have willfully defaulted in payment of the stipulated rent? If so, for what period and to what effect? OPR.
(6) Whether the respondent No,1 sublet the premises in dispute to the other respondents without the petitioners' consent? If so, its effect? OPP.
(7) Whether the premises in dispute is required by the petitioners for his bona fide personal use?
OPP.
(8) Whether the shop in dispute requires to be genuinenly reconstructed? If so, its effect? OPR.
(9) Relief. ' and vide judgment dated 31-7-1991 dismissed the ejectment petition. The respondents filed appeal against the said order wherein appellants filed cross-objections against the findings recorded by the learned Rent Controller on issue No,1. Learned Additional District Judge vide order, dated 18-9-1991 accepted the appeal and remanded the case to the learned Rent Controller with the direction to decide all the remaining issues, after hearing the parties and after decision thereon to return the case file with the findings and reasons to the learned appellate Court and the appeal was kept pending. Vide order, dated 29-9-1992, learned Rent Controller decided issues Nos. 2, 4, 5, 6, 7 and 8 against the appellants and transmitted the findings to the Court of learned first appellate Court. Fresh objections were raised by the appellants against the findings on issues adversely decided by the learned Rent Controller. Learned appellate Court, vide order dated 3-12- 1991 accepted the appeal and passed an order of ejectment against the appellants holding that relationship of landlord and tenant exists between the parties. This order has been challenged in this second appeal.
3. Mirza Manzoor Ahmad, learned Advocate has appeared on behalf of the appellants whereas Mr. Zafar Yasin and Mr. Naveed Hashmi, Advocates have appeared on behalf of respondents.
4. Learned counsel for the appellants has argued that admittedly Khata is joint between the co- sharers. The appellant No,1 has purchased a share in Khata wherein the shop is situate from one of the co-sharers, as such himself has become a co-sharer and being in possession of a portion of the joint property, is not liable to be ejected inasmuch as he doing a co-owner, cannot be deemed to be a tenant in possession of the shop in question. Reliance in this behalf has been placed by the learned counsel for the appellants on cases of Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9 and Syed Shahbaz Khan v. Syed Muhammad Hussain and others 1971 SCM R 198.
5. As against the above arguments of the learned counsel for the appellants, Messrs Mian Zafar Yasin and Mr. Naveed Hashmi, Advocates, have contended that there is a concurrent finding of fact to the effect that possession of the appellants is that of tenant, therefore, having denied the tenancy, the principles of forfeiture of the tenancy will be attracted in the case and as such order of ejectment has rightly been passed against the appellants. Learned counsel further contended that as the appellant No,1 has purchased a share in the joint Khata from another co-sharer and not the landlords, hence their status as tenants shall not come to an end and principle of estoppel being applicable in the case, the appellants shall have to vacate the premises in pursuance of the order of ejectment passed against them and thereafter they can file a title suit or a suit for partition. In support of this argument, reliance has been placed on cases of Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCM R 913, and Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242.
Learned counsel, however, have not admitted the appellants even as co-sharers in the Khata in question.
6. I have considered the arguments addressed by both the learned counsels for the parties and have gone through the record. Muhammad Bakhsh, appellant No,1 is proved to have purchased a share in Khata No,143 wherein the shop in question is admittedly situate on 2-3-1987, vide the mutation of sale sanctioned in his favour on 24-3-1987. Similary, vide Mutation No,3606 Exh.R2, on record, Muhammad Bakhsh appellant No,1 purchased a share out of joint Khata from Messrs Ghulam Yasin and Jan Muhammad, co-sharers. Vide registered sale-deed Exh.R-15, the appellant No,1 is proved to have purchased a share out of the joint Khata from Messrs Muhammad Bakhsh son of Imam Bakhsh, a co-sharer on 7-1-1989. Aforementioned documentary evidence proves beyond doubt that the appellant No,1 has become a co-sharer in the Khata wherein the shop in question is situate, and therefore, it is held that the appellant is co-owner/co-sharer in Khata No,143 wherein the shop in dispute is situate.
7. The next question which requires determination in this case, is as to what is the status of the appellants vis-a-vis possession of the shop in question i.e. whether as tenant or as co-sharer and whether they can be ejected through an ejectment petition filed under the provisions of Urban Rent Restriction Ordinance, on the basis whereof an order of ejectment has been passed against them by the learned appellate authority.
8. In order to determine the above issue, law laid down in various judgments of the Hon'ble Supreme Court of Pakistan as well as this Court shall have to be examined as enunciated in the following judgments.
(1) Fazal etc. v. Manzoor Hussain PLD 1979 Note 9 at p.6.
(2) Muhammad Muzaffar Khan v. Muhammad Yusuf Khan" PLD 1959 SC 9.
(3) Muhammad Nawaz v. Sh. Abdul Latif 1971 SCM R 198.
(4) Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9.
(5) Allah Yar v. Additional District Judge 1984 SCM R 741.
(6) Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17.
(7) Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1.
(8) Mir Salahuddin v. Qazi Zaheer-ud-Din PLD 1988 SC 221.
(9) Nazir Ahmad v. Mst. Sardar Bano and others 1989 SCM R 913.
(10) Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242.
(11) Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rehman and others 1992 SCM R 1352.
' In the case of Fazil etc. v. Manzoor Hussain etc. PLD 1979 Note 9 at page (6), it has been held as under:--- ----S.9---Possession, suit for---Simpliciter--Co-sharers requiring to be put in possession of joint land, allegedly dispossessed from land--Bare suit for possession not maintainable unless partition of such joint land first asked for---Remedy, held, lies in bringing suit for partition and getting a decree for possession of specific shares on partition---Co-sharer or owner entering in possession even forcibly, held further, cannot be dispossessed unless joint land first partitioned."
' In case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9, it has been held as under:-- "The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights 'as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the. area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided Khata, does not become a co- sharer in that Khata."
' In case of Muhammad 'Nawaz v. Sh. Abdul Latif (1971 SCM R 198), where a godown was jointly owned by four persons and one of them sold his share to an outsider and the godown was in possession of M as tenant who had sublet the same in favour of R who was a brother of L who had purchased the share referred to above and an ejectment was obtained by the three co-owners which was resisted to by the purchaser of a share in the said godown on the ground that the godown was occupied by his brother as his tenant and therefore, the order of ejectment cannot be executed inasmuch as the ejectment of R will in fact be the ejectment of a co-sharer. Their Lordships have held at page 199 of the report as under:--- "In law, a co-sharer in possession of a joint property cannot be evicted without filing a suit for partition. In these circumstances, the High Court was perfectly justified in observing that the Courts below have failed to exercise the discretion vested in them"...
' In case of Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9, where a dispute arose as to whether a co-owner who is in possession of the property in excess of his share and who is recorded as a tenant of excess could be ejected from the premises under the provisions of the Urban Rent Restriction Ordinance, 1959. The answer has been rendered in negative and it has been held at page 14 of the report as under:--- "Relying on Muhammad Abdullah v. Abdul Jabbar (2), it is submitted by the learned counsel for the respondent that the status of the appellant is to be determined by the true nature of his tenure as a person who has inherited the property under the Muslim Law and not by the extraneous factors of paying rent to another co-owner or to the receiver, or the fact that the commissioner appointed in the partition suit determined the rental -value of the portion of the property occupied by the appellant.
' We are inclined to agree with this submission. 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. In his position as co-owner and judgment-debtor, he is liable to be dealt with under rule 95 of Order XXI."
' In case of Allah Yar v. Additional District Judge 1984 SCM R 741, where the tenant raised the plea of existence of agreement to purchase the property from the previous owner through a receipt of payment of earnest money, it has been held by the Hon'ble Supreme Court that unless and until the genuineness of the receipt has been decided by the Civil Court in favour of the tenant, he cannot protect his possession even under the provisions of section 58 of the Transfer of Property Act, and the tenant hence cannot deny the relationship of landlord and the tenant. Relevant portion of the report at page 743, is reproduced as under:--- "Learned counsel also sought time so as to make an application before the Rent Controller for obtaining interim relief for the protection of petitioner's possession. This prayer is against the rule laid down by this Court in the case of Rahmatullah v. Ali Muhammad and another (1). The respondents have been adjudged in these proceedings as entitled to receive rent without any doubt. Regarding their right the issue of relationship of landlord and tenant has rightly been decided against the petitioner. For the time being accordingly they have no right to retain the possession after the eviction orders have been passed in duly constituted proceedings under a special law. The stay' of eviction by a Civil Court even as interim measure would obviously be in aid of injustice."
' In case of Makhan Bano v. Haji Abdul Ghani, PLD 1984 SC 17, it has been held at page 21 of the report as under:--- "So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies the premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevant for the purposes of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his statutory duties as provided under the Ordinance. Reliance is placed for this on Amanullah Khan v. Chotey Khan (1), Muhammad Shah Alam v. Muhammad Abdul Ghafoor (2) and Muhammad Yusuf v. Asghar Hussain (3)."
' In case of Province of Punjab through Secretary Education v. Mufti Abdul Ghani PLD 1985 SC (1), where the question arose as to whether the rule of estoppel applies as understood generally against the tenant in pursuance whereof and hence he cannot deny the title of the landlord. Their Lordships of the Hon'ble Supreme Court of Pakistan have held that "uncontrolled" application is not applicable to the cases under the Urban Rent Restriction Ordinance, 1959, and applicability of the principle will depend on the facts and circumstances of each cases. It has been further held in the same judgment that the learned Rent Controller while deciding the issue of relationship of landlord and the tenant can also decide the question of title raised by the parties during the course of trial of ejectment proceedings. It has been held at pages 8 and 9 of the report as under:--- "The last argument of the learned counsel is based on the rule of estoppel contained in section 116 of Evidence Act. He is right that under the general law broadly speaking a tenant during the subsistence of the tenancy, cannot question the title of the landlord as it stood at the commencement of the tenancy. If he desires to do so he must first surrender the possession to the landlord and then may dispute his title. If he fails to observe this rule then under section 111(g)(2), of the Transfer of Property Act also, his right to tenancy itself would be forfeited on observance of certain procedural and other conditions. In so far as this general rule of estoppel vis-a-vis a tenant and landlord is concerned, it cannot have uncontrolled application to the cases to be determined under the special rent restriction laws. It will depend upon the facts and circumstances of each case. In a recent judgment Makhan Bano v. Haji Abdul Ghani (1), this Court held as follows:--- "So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies the premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevant for the purposes of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his statutory duties as provided under the Ordinance. Reliance is placed for this on Amanullah. Khan v. Chotey Khan 1978 SCMR 14, Muhammad Shah Alam v. Muhammad Abdul Ghafoor, 1979 SCM R 443 and Muhammad Yusuf v. Asghar Hussain 1980 SCM R 886."
' In this case it is to be obsreved that the rule of estoppel (and forfeiture) would not apply also because the denial by the appellants is not regarding the title of the respondent vis-a-vis "the beginning of the tenancy", even if it is assumed to have existed before the transfer orders were passed in 1962 and also in 1979 in favour of the School.
' The denial is regarding the change of position by the said transfer. The principle and rule embodied in section 116, Evidence Act is not attracted in all cases of dispute over title between landlord and tenant. One exception as in this case is the denial vis-a-vis a stage after "the beginning of the tenancy". Another condition is that the denial should be during the continuance of the tenancy and not afer the determination thereof. Moreover, it should be of the landlord who 'let the tenant in' and not of any other person.
' In this case before the transfer the landlord was the Custodian/Settlement Department.
Thereafter, the so-called tenant (the school) became the owner. No question then could arise of the application of this rule. The statutory tenancy dealt under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 did not come into being because the respodnent never became a transferee. This intervention of a "paramount owner" also is involved in this case and when this happens, the rule of estoppel would not apply. Looked at from ,Whatever angle, the argument of the learned counsel has no force."
' In case of Mir Salahuddin v. Qazi Zaheeruddin, PLD 1988 SC 221, while deciding the extent of jurisdiction of the learned Rent Controller, their Lordships of the Honourable Supreme Court of Pakistan have held that the learned Rent Controller can render a finding even on the question of title and once the decision on the question of title has been rendered by the learned Rent Controller, the same cannot be challenged even in Civil Court unless it is said so in the order itself.
At page 226 of the report, it has been held as under:--- "In order to appreciate the argument of the learned counsel it is necessary to briefly re-state the rule laid down in the case of Rehmatullah. It is that: ' A matter involving even a dispute of title--having once obtained finality in the Rent Controller's forum (including the hierarchy of appeal/s and thus the appellate and superior Courts) cannot be re-agitated in a suit before a Civil Court of general jurisdiction, inter alia, because of principle contained in section 12(2), C.P.C. read with section 9, C.P.C., and, the provions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (as amended).
' Some possible exceptions to this rule have also been spelled out in the same case of Rehmatullah.
They are; that the finality attachable to the orders passed under the Rent Restriction Laws by different forums will be neutralised when the order itself says that it is not final regarding a particular issue and that the same could be re-agitated in the Court of general jurisdiction; or, when otherwise, the said order in itself conveys a clear undisputed intendment that it is not fmal and visualises a final determination by a Court of general jurisdiction as was in the case of Rehmatullah; or, when the relevant issue is determined on the basis of doubts, or, when the party concerned itself instead of getting the fmal determination in that hierarchy gives up the content therein with a positive statement in this behalf, so as to agitate the question before the Court of general jurisdiction which course in some cases would, be at the risk of a temporary adverse conclusion and/or action against him."
' In case of Nazir Ahmad v. Mst. Sardar Bano and others 1989 SCM R 913 which has been referred to by the learned counsel for the respondents in support of his contentions, the facts were that a tenant who had admitted the execution of the rent note in favour of the landlord, his status as a tenant under him and his induction by the landlord, in ejectment proceedings filed against him wanted to challenge relationship of landord and the tenant on the basis of a sale transaction of certain share in the suit property which had taken place during the pendency of the ejectment petition before the Rent Controller. He was not allowed to resist his ejectment and it has been held that he shall be at liberty to seek his remedy in Civil Court after handing over possession to the landlord. The main circumstances which have been taken into consideration by the Hon'ble Supreme Court of Pakistan for holding as above are that the sale has taken place during the pendency of the ejectment proceedings and the tenant has earlier admitted the relationship of landlord and tenant, and further that the learned Rent Controller was a Court of limited jurisdiction could not adjudicate the ownership rights of the parties, consequently, leave to appeal in the case has not been granted. Following is the relevant portion of the judgment rendered by their Lordships in the above-said case.
"We have heard the learned counsel for the petitioner at considerable length and are of the view that as per the record the fmdings of the Courts below are unexceptionable. The learned counsel for the petitioner here before us admitted that the petitioner entered into a shop in dispute as a tenant under the respondent at a monthly rent of Rs,40 which was subsequently enhanced to Rs,60. He also admitted the execution of the rent deed. In view of this clear and categorcial admission, the petitioner, notwithstanding the purchase by him of a certain share from the dispdted 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. Therefore, 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. Since the evidence produced by the petitioner at the trial to rebut the grounds in the ejectment petition was insufficient, so it cannot be said that the Courts below have decided the case wrongly.
' 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 merits.
Admittedly the alleged sale transaction of a certain share in the suit property took place during the pendency of the ejectment proceedings. The Rent Controller who was extrcising a limited jurisdiction under the Rent Restriction Ordinance could not adjudicate upon the ownership rights of the parties. The petitioner is, therefore, at liberty to seek his remedy in the Civil Court as observed by the learned Judge in his Chamber."
' In case of Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242 a tenant who had admitted the relationship of landlord and tenant subsequently resisted the ejectment petition on the basis of agreement of sale having been executed by one of the landlord in his favour. Their Lordships of the Supreme Court of Pakistan held that the tenant cannot resist his eviction inasmuch as he having admitted the tenancy and his induction into premises by the landlord shall have to vacate the premises and if he succeeds in getting a title decree in a title suit filed by him in Civil Court, he shall be entitled to re-enter the premises. At page 242 of the report, it has been held as under:---- 'Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate---though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, Allah Yar and others v. Additional District Judge 1984 SCM R 741, and Province Of Punjab v. Mufti Abdul Ghani, PLD 1985 SC 1."
' This judgment has also been referred to by the learned counsel for the respondents in support of his contentions. In case of Muhammad Siddique v. Arash Bibi 1985 CLC 1701, it has been held that the tenant can show that title of the landlord has come to an end or has been extinguished subsequent to the commencement of the tenancy. I have myself made a research on the subject and I have been able to locate the case of Syed Izharul Hassan Rizvi v. Mian Abdul Rehman and others 1992 SCM R 1352, where the ejectment petition filed by the landlord was contested by the tenant on the ground that he having purchased a share out of the property occupied by him from one of the landlord co-sharers having obtained a preliminary decree for partition and hence, his status having become that of a co-sharer, he could not be ejected from premises unless and until in the partition suit it is finally decided that he could not retain the property as he has no claim regarding that. Plea of the tenant in this case has been accepted by the Hon'ble Supreme Court and it has been held that in such a situation, possession of the tenant will be that of co-owner and as such he could not be ejected from the premises in question and further that doctrine of estoppel will not stand in the way of the tenant to challenge the entitlement of the landlord to eject him. At page 1356 of the said report, it has been held as under:--- "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 sub judice 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 property 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 Nazir Ahmad'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 possesison of the disputed property through his brother, who was occupant, and as in law a co-sharer in possession of joint porperty could not be evicted without filing a suit for possession, the High Court's order restraining the landord from executing 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 genuiness 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 exitinguished subsequent to the commencement of his tenancy. If any authorities are required for his view, Kumar Kirishana Prosade Deo Lal Singha v. Barabona Coal Concern Limited (AIR 1937 PC 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 to claim to the disputed shop."
9. A perusal of the case-law referred to above shows that following principles of law have been settled on the subject in question:---
(1) That a tenant purchaser from one of the co-sharers of a joint property (not a specified portion) becomes a co-sharer in the whole property and as such a co-owner in every inch thereof.
(2) That a purchaser of a share out of a joint property having become a co-owner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord.
(3) That the. principle of estoppel will not apply to a tenant who is resisting an ejectment petition filed under the provision of Urban Rent Restriction Ordinance, uncontrolled by facts and circumstances and in certain situation, the tenant is entitled to deny the title of the landlord.
(4) A co-sharer is entitled to retain the possession of the joint property till partition and cannot be ejected in execution of the ejectment order which cannot be passed by learned Rent Controller under the provision of Urban Rent Restriction Ordinance.
(5) A tenant can raise the objection of title in the ejectment proceedings being ejected by the learned Rent Controller who is competent to decide the question of title and decision of the question of title shall be res judicata and shall not be challengable even in a civil Court unless and until it is so said in an order passed by the learned Rent Controller or by authorities provided in the hierarchy of the Urban Rent Restriction Ordinance.
(6) That a tenant who has admittedly his status as a tenant, cannot resist I his eviction on the basis of an agreement for sale.
10. I have considered the case-law cited by both the learned counsels for the parties and other judgments referred to above and find that the cases cited by the learned counsel for the respondents in support of 'his contentions are distinguishable on facts. In case of 1989 SCM R 913 (supra), the tenant had admitted the tenancy, execution of the rent note and also his induction by the landlord. Purchase of a co-owner right had taken place during the pendency of the ejectment petition. Their Lordships were of the view that the learned Rent Controller is a Court of limited jurisdiction and cannot decide the question of title. In case of Province of Punjab through Education Secretary v. Mufti Abdul Ghani PLD 1985 SC 1 and case of Mir Salahuddin v. Qazi Zaheeruddin PLD 1988 SC 1, which are judgments rendered in appeal and deal with the scope of the jurisdiction of the learned Rent Controller and the applicability of principle of estoppel in rent matters were not brought to the notice of their Lordships during the course of arguments. It is in these circumstances their Lordships were pleased not to grant leave in this case. In case of 'Iqbal v. Rabia' mentioned (supra), the tenant had admitted the relationship of landlord and tenant and during the course of ejectment proceedings, he entered into agreement for sale with one of the landlords and he wanted to protect his possession. He was not allowed to do so on the ground that an agreement for sale does not create any right in favour of the tenant but the following observations were made at the close of the judgment:--- "It should be at the cost of himself and he must vacate---though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, Allah Yar and others v. Additional District Judge 1984 SCM R 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1." ' which clearly proves that view of the Lordships even in that judgment is that the tenant if proves his title, is entitled to the possession of the tenanted premises. Cases referred to by the learned counsel for the appellants on the other hand, support the view that a purchaser from co-sharer in a joint Khata becomes a co-owner in the joint property and cannot be dispossessed in pursuance of the ejectment proceedings taken under the provision of Urban Rent Restriction Ordinance.
11. This view is fully supported by the law laid down in case of Syed Izharul Hassan Rizvi mentioned (supra) which is the latest in point of time. In the case in hand tenancy is denied from the very beginning and the appellant No,1 who has claimed herself to be a co-owner, had purchased a share in the joint Khata prior to the filing of the ejectment proceedings. Hence the law enunciated in the aforementioned cases referred to by the learned counsel for the appellants and case of "Syed Izharul Hassan Rizvi" is applicable on all fours, to the facts of the case in hand.
12. In view of the above factual and legal position, I set aside the findings of the learned Courts below on the issue of relationship of landlord and tenant and hold that the status of the appellant No,1 over the shop in question is in the capacity of a co-owner/co-sharer in possession and not as a tenant and the other appellants are neither in possession nor are the sub-tenants. In view of my findings on the above issue, it is not necessary to record any findings on the remaining issues as the findings on these issues are without jurisdiction. Even otherwise, learned counsel for the parties have not addressed arguments on these issues.
13. Resultantly, this S.A.O. is accepted, impugned judgments rendered by the two learned Courts below and the order of ejectment passed by the learned first appellate Court is set aside and the ejectment petition filed by the respondents is dismissed with no order as to costs.