1. This petition in extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 impugnes decision, dated 12-12-1994 of learned Additional District Judge, Sialkot whereby a decision of learned Civil Judge 1st Class, Sialkot exercising powers of Rent Controller in execution passed on 13-7-1994 was affirmed. Thus, the objections filed by the petitioner to the execution of ejectment order were finally turned down.
2. Subject-matter of dispute between the parties was a residential house bearing Survey No.2/428, Muslim Street, Water Works Sialkot City. Pervaiz Alamgir Shaikh alongwith his brother Khalid Jahangir held possession of it. It was given by them on monthly lease to Tariq Amjad Butt at a monthly rental of Rs.1,500 in the month of June, 1990. Inducted tenant paid half of the monthly rent i.e. Rs.750 in cash to Pervaiz Alamgir Sheikh and deposited the other half in the bank account of Khalid Jahangir. The arrangement for cash payment and deposit in bank account of the respective landlords continued till the month of April, 1992. Thereafter, there was a default in payment of monthly rent to both the landlords. Consequently, on 18-1-1993, Pervaiz Alamgir Sheikh instituted a petition for ejectment of Tariq Amjad Butt from the house on grounds of rent-default with effect from the month of May, 1992 to the month of December, 1992 and causing of damage to the house which had impaired its value and utility. Tariq Amjad Butt contested the ejectment application. His case in defence was that he had paid the monthly rent to Sheikh Muhammad Iqbal and his sisters who were owners of a half share in the house and therefore, was not a rent defaulter on any score.
3. Furthermore, causing of damage to the house, impairing its value and utility was also controverted by him.
4. Following issues arose for determination in the ejectment case:--
(1) Whether the petition is not maintainable in view of preliminary objections Nos.1 and 2 of the reply? O.P.R.
(2) Whether, the respondent has not paid the rent from May, 1992 to December, 1992 and therefore, he is wilful defaulter? OPP
(3) Whether the respondent has consciously damaged the property and reduced the value and therefore, he is liable to ejectment? O.P.P.
5. It may be worthwhile to observe that issue No.1 reflected an objection regarding non-joinder of necessary parties to the ejectment case. Both sides gave evidence in support of their respective versions. On its examination, learned Rent Controller concluded in favour of Pervaiz Alamgir Sheikh and decreed ejectment from the house in his favour on 13-12-1993 and directed Tariq Amjad Butt to surrender possession of the house in his favour within one month. An appeal filed from the ejectment order by Tariq Amjad Butt was dismissed by learned Additional District Judge, Sialkot on 9-3-1994. This decision was not assailed further in writ jurisdiction and was allowed to attain finality in law. Both the Courts, learned Rent Controller as well as the learned Appellate Judge had found that Tariq Amjad Butt was inducted in the house as a tenant by Pervaiz Alamagir Sheikh and his brother and that he had agreed and bound himself to pay the monthly rent to them in the manner shown above. It was further found that rent at the agreed rate of Rs.1,500 per mensem was paid to them till the month of April, 1992. Therefore, Tariq Amjad Butt was not authorised in law to turn towards Sheikh Muhammad Iqbal Shat for payment of monthly rent to him from the month of May, 1992 onward and that there was no record in proof of payment of rent by Tariq Amjad Butt to him. It shall also be profitable to observe that Sheikh Muhammad Iqbal Shafi had appeared as a witness in support of defence taken by Tariq Amjad Butt. The learned Courts dealing with the ejectment case had found against him. It was observed that he was not entitled to receive rent from the tenant inducted in the house by Pervaiz Alamgir Sheikh and his brother.
6. Decree-holder sued out execution of the eviction order against Tariq Amjad Butt for regaining possession of the house from him. Execution petition was filed in the office of Rent Controller, Sialkot on 10-4-1994. Sheikh Muhammad Iqbal Shari objected to the execution of the eviction order. His case was that he alongwith his sisters was co-owner to the extent of a moiety in the house and, therefore, upon his taking actual possession of the house from the tenant on 9-4-1994 could not be disturbed in execution of the eviction order in favour of Pervaiz Alamgir Sheikh. He traced his half share in the house to the ownership of Mst. Saeeda Begum. Vide order, dated 13-7-1994, learned Rent Controller turned down the objections and allowed the execution of the eviction order to proceed. As said above, his decision was affirmed in appeal.
7. At this stage, it was necessary to narrate that the objector Sheikh Muhammad Iqbal Shafi had also instituted a suit for partition for separating his share in the house against Pervaiz Alamgir Sheikh in the Civil Court at Sialkot. Aforesaid suit awaited adjudication in the trial Court. Tariq Amjad Butt tenant in possession of the house was not made a party to the suit for partition. It may also be of some importance to notice that Pervaiz Alamgir Sheikh had sold out his share in the house to Mst.
8. Shafqat Begum widow of Ch. Abdul Majid in the sum of Rs.1,75,000 vide a registered sale-deed on 31-1-1994. Rana Nasrullah Khan, Advocate, learned counsel for the petitioner stated that his brother Khalid Jahangir had also sold out his share in the house to the same lady. However, no record of the sale by him was produced at the hearing. As far the sale of the share in the house of Pervaiz Alamgir Sheikh, a photo copy of sale-deed was annexed with the writ petition. On the basis of it, Tariq Amjad Butt had presented a petition under section 12(2), Civil Procedure Code for setting aside of the decision given in his appeal by learned Additional District Judge on the ground that after having sold out his share in the house, Pervaiz Alamgir Sheikh was incompetent to proceed with the ejectment case against him. Petition under section 12(2), Civil Procedure Code was dismissed on merits on 12-12-1994 by learned Additional District Judge, Sialkot. This decision was yet to be separately assailed by the erstwhile tenant Tariq Amjad Butt in appropriate proceedings.
9. Therefore, I shall refrain from comments on its merits. Learned counsel also suggested the same course.
10. At the hearing, it was forcefully urged by Rana Nasrullah Khan, Advocate that as a co-sharer in possession of the house, the petitioner could not be ejected from it on the strength of an eviction order passed by the Rent Controller in favour of Pervaiz Alamgir Sheikh, decree-holder and the only remedy against him was a civil suit for partition of the house. In support of the proposition, learned counsel referred to the cases of Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rehman and others 1992 SCM R 1352 (Supreme Court of Pakistan) and Muhammad Bakhsh and 3 others v. Khuda Bakhsh and 3 others 1993 M LD 937 (Lahore) wherein it was found that a person originally inducted as a tenant in property purchasing a part of it from one of his landlords and then filing suit for partition of the same wherein he was granted a preliminary decree could not be evicted unless in the partition suit filed by him it was finally found that he had no claim to the property in question. The burden of the cases relied upon was that a tenant by purchasing a share in the property of which he was previously a tenant became a co-sharer in it and, therefore, could not be ejected from it without a suit for partition. In the case of Syed Izhar-ul---Hassan Rizvi (supra), a two-member learned Bench of the Supreme Court commented on the decision in the case of Nazir Ahmad v. Mst.
11. Sardar Bibi and others by the five members learned Bench of the Supreme Court reported 1989 SCM R 913 which had taken the contrary view on the point at issue. Commenting on the proposition, their Lordships of the Supreme Court in case of Nazir Ahmad in paragraphs 6 and 7 of the judgment observed as follows:-- "6. We have heard the learned counsel for the petitioner at considerable length and are of the view that as per the record the findings of the Courts below are unexceptionable. The learned counsel for the petitioner here before us admitted that the petitioner entered into the 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 categorical admission, the petitioner, 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: 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.
7. The contention of the learned counsel that the petitioner having become as owner in the suit property could not be proceeded against under the Rent Restriction Ordinance has no merits.
12. 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 exercising 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 Chambers. Independent of the proposition laid down by Honourable the Supreme Court in case of Nazir Ahmad, the facts on the basis of which decision of Honourable Supreme Court in case of Syed Izhar--ul-Hassan Rizvi proceeded were clearly distinguishable and made all the difference in the proposition of law enunciated by it. From paragraph 2 of the judgment of the Supreme Court in the case of Syed Izhar-ul-Hassan Rizvi, it was evident that the shop was rented out to the tenant by Mian Abdur Rehman (respondent No.1 before the Supreme Court), his brother Abdul Marian and mother Mst. Sardar Begum on a rental of Rs.250 per mensem.
13. Mian Abdur Rehmar alone instituted an ejectment petition against the tenants on grounds of default and personal need of his son. During the pendency of the remanded appeal, Abdul Marian who was one of the joint owners and a co-landlord of the property had sold out his share to the extent of 7/16th share in the shop in dispute in favour of the tenant through registered deed. On the basis of the purchase of the share of Abdul Marian, the tenant had pleaded for dismissal of the ejectment petition against him on the ground that he was a co-sharer in the shop and could not be evicted therefrom. Additionally, the tenant in that case had filed a suit for partition of the shop on account of his purchase o~ the share of Abdul Marian and had also secured a preliminary decree in the suit. Upon these premises, their Lordships of the Supreme Court found that since he was a co-sharer in the property occupied by him previously as a tenant, his ejectment from it was not justified. Seen from the judgment of the Supreme Court, it was crystal clear that one of the admitted co-landlords had sold out his share in the property to the tenant. The tenant was relegated to the status of co-landlord who had sold out his share to him in the leased property. All the three, in case of Syed Izhar-ul-Hassan Rizvi (supra) were his collective landlords. One of them transferred his share in the leased property to the tenant which prevented his ejectment from the property. Additionally, a preliminary decree for partition was also made in favour of the tenant.
14. These factors were absent in the case under consideration which turned it materially distinguishable from the ratio in the cited case. In the case in hand, the control and management of the house was undisputably held by Pervaiz Alamgir Sheikh and his brother. They held its actual possession. It was they who inducted Tariq Amjad Butt as their monthly tenant in the house upon payment of Rs.1,500 as rent per mensem to them. Admittedly, the tenant acted. Upon and abided by his agreement and paid half of the monthly rent in cash to Pervaiz Alamgir Sheikh-and deposited the other half share of the monthly rent- in the bank account of Khalid Jahangir till the month of April, 1992. Record clearly showed that from the very inception of the tenancy in June, 1990 till the--month of April, 1992, the tenancy-arrangement agreed upon worked satisfactorily.
15. Thereafter, there was a default in the commitment by the tenant by altering his direction to Sheikh Muhammad Iqbal Shah etc. And allegedly paid the rent to them. Written record to support payment of rent to them was not forthcoming on file. Sheilth Muhammad Iqbal Shaft and his sister Mst. Fahmida Shami both appeared as witness in support of the defence taken by Tariq Amjad Butt in the ejectment case. Learned Rent Controller as well as the learned Additional District Judge clearly pronounced upon their falsity and held Tariq Amjad Butt as tenant in possession of the house on behalf of Pervaiz Alamgir Sheikh and his brother Khalid Jahangir. In course of ejectment proceedings, Sheikh Muhammad Iqbal Shafi did not come forward to become a party in them.
16. They also did not prefer an appeal from the ejectment order passed against the tenant at the instance of Pervaiz Alamgir Sheikh. Learned counsel for petitioner referred to the case of Mistri Allah Din v. Fazal Muhammad and another PLD 1991 SC 52 to urge that as non-party to the ejectment case, no appeal could be filed from the decision of the Rent Controller by Sheikh Muhammad Iqbal Shafi etc. Be that as it may, 'a final determination by the learned Rent Controller as well as the learned Additional District Judge in appeal on the status of Tariq Amjad Butt vis-a-vis Pervaiz Alamgir Sheikh and his brother could not be upset and reviewed in execution by the learned Rent Controller. Additionally, Sheikh Muhammad Iqbal Shafi, his brother and sisters claiming a moiety in the ownership of the house in question neither held its immediate nor mediate possession. They had yet to establish their share in the ownership of the house in the civil suit for partition instituted by them. Tariq Amjad Butt was not put in possession of the house by them either. On the other hand. It was Pervaiz Alamgir Sheikh and his brother Khalid Jahangir who gave the house in question on monthly lease to Tariq Amjad Butt and transferred its physical possession to him.
17. Having taken the possession of the house on tenancy from these two persons, the tenant was precluded to attorn to Sheikh Muhammad Iqbal Shafi etc. For payment of rent to them. If the house in question had not been let out to Tariq Amjad Butt by Pervaiz Alamgir Sheikh and his brother, they were clearly entitled to maintain their possession on it without disturbance till its partition at the instance of the alleged other co-owners. It so, if the house was let out by them to a tenant by parting with its possession to him, on what principle of law or equity the alleged co-owners could deprive them of their possession of the house held through their tenant. Affirmance of such a proposition might lead to startling results. It shall tantamount' to self-imposed partition of the alleged joint property which could cause manifold legal complications and hardships to a person in settled possession of the property claiming to be its owner. Therefore, the petitioner had no right whatsoever to take possession of the house from the acknowledged tenant of Pervaiz Alamgir Sheikh and his "brother Khalid Jahangir on 9-4-1994, exactly a month after the decision of the appeal by learned Additional District Judge, Sialkot on 9-3-1994. The. Execution case was filed on 10-4-1994. Since the possession was taken during the currency of the lis, it shall be hit by rule of lis penciens. Therefore, it shall be deemed to have been held on behalf of the tenant Tariq Amjad Butt and alongwith him, the petitioner shall also leave and vacate in favour of the decree-holder. The petitioner had no independent defence to make to retain possession of .He house by him. As a result of it, impugned decisions on the objections raised by the petitioner were neither without jurisdiction nor without lawful authority. Hence, there was little scope for interference a with them in extraordinary jurisdiction of this Court.
18. The decision in Muhammad Bakhsh's case (supra) had its own peculiar features materially different from the instant case. Therefore, it was not much helpful.
19. At the end, it was necessary to observe that after the hearing in the case was concluded for pronouncement of judgment in it later, learned counsel for the petitioner again appeared and requested for withdrawing the writ petition. Since I had already heard the writ petition on its merits, I preferred to record a final decision on it for putting my views on record. Request by the learned counsel for not pressing the writ petition and its withdrawal was noticed for reference.
20. Having regard to the aforesaid, writ petition is dismissed in limine.