Brief facts of the case are that admittedly the appellant and his brother, Syed Muhammad Siddiq are owners/landlords of Shop No.1679/1, Chhota Bazar, Rawalpindi Cantt. (property in question). The appellant Syed Muhammad Munir filed ejectment petition against the respondents. It is mentioned in the petition that he is a co-owner/landlord of the disputed premises. The respondents are tenants under him. Originally, the property was rented out to the predecessor-in-interest (Nazir Ahmad late) of the present respondents. Nazir Ahmed expired and the present respondents occupied the disputed property. He mentioned in the petition that prior to this, the present appellant alongwith his brother Syed Muhammad Siddiq filed ejectment petition against the respondents on the ground of default in payment of rent etc., which was decided in his favour vide order dated 17-7-1990 passed by the Rent Controller, Rawalpindi Cantonment. On appeal by the respondent, the Hon'ble High Court set aside the order of ejectment vide judgment dated 27-11- 1990.
2. The appellant now seeks ejectment on the sole ground of his personal requirement. In good faith for his own use as he is in hard need of the disputed shop. He is jobless and not in occupation of any shop in cantonment area; neither in the vicinity nor he has vacated any such shop in the near past.
3. The respondents appeared before the Rent Controller and filed written statement. They raised certain objections to the maintainability of the ejectment petition. Besides others, it is stated in the written statement that the applicant is in occupation of Shop No.1679/2, which is located adjacent to the disputed shop and lying vacant for the last two years. According to the respondents, this fact has been concealed by the appellant intentionally, as such, he has not approached the Court with clean hands. The respondents further stated that the applicant was running a school under the name and style of Falcon Academy situated in R.A. Bazar, Rawalpindi, alongwith Muhammad Siddiq but this material fact, too, had been concealed. He is, therefore, not entitled to seek ejectment.
4. On the pleadings of the parties, following issues were framed:---
(1) Whether the present petition is not maintainable in view of the objections taken by the respondents in their written statement? OPR
(2) Whether the application is also not maintainable and proceedable against respondents Nos.2 to 7 in view of objection No.1 of the written, statement? OPR
(3) Whether the petitioner requires the disputed premises in good faith for his personal use and occupation? OPP
5. After framing of the issues, the parties were directed to produce their evidence. The appellant produced Syed Muhammad Siddiq as P.W.1 and he himself appeared as P.W.2. In rebuttal, Muhammad Amin appeared as R.W.1 and Khalid Mehmood, special attorney of the respondents, appeared as R.W.2. The learned Rent Controller dismissed the ejectment petition vide his order dated 28-10-1993. The appellant filed the present FA.O. Seeking to set aside the impugned order of the Rent Controller.
6. I have heard the learned counsel for the parties and with their assistance perused the record minutely.
7. In the present appeal, the propositions are as under:---
(a) As to whether the applicant needs the shop in good faith for his own use or not?
(b) Whether he is not in. Occupation of any other shop to run his business?
(c) Whether he is jobless and needs this shop, having no other property in the vicinity?
(d) Whether the applicant concealed the factum of other shop or shops of which either he was an owner or co-sharer making him in the eyes of law disentitled to the relief?
8. From the statement of P.W.2 Syed Muhammad Munir, it is clear that both the brothers are owners of present Shop No.1679/1. They have three other shops located in the area of Cantonment Board, Rawalpindi. He states that the present shop was rented out while Shop No.1679/2 is in occupation of his brother wherein he runs business. His statement has been supported by the evidence of his real brother P.W.1, Syed Muhammad Siddiq, who admits that Shop No.1679/2 is in his possession while the other two shops are under the possession of the tenant. He admits that property in which school Falcon Academy is functioning belongs to him alone though the school is being run by a tenant, and had nothing to do with the school. He contends that appellant is jobless and shop is needed in good faith for his own use. The appellant wants to start business in the shop where for the possession be handed over to him. He categorically denied that either they want to sell the shop or ejectment was sought with a view to enhance the rent.
9. As against this, in the statement of Muhammad Amin R.W.1, it is admitted that there are three other shops belonging to the appellant and his brother Muhammad Siddiq. One of those is with him (Muhammad Amin) as tenant and the remaining two are with other tenants. Regarding fourth shop, he stated that Muhammad Siddiq used to work in that but now it is lying vacant for the 2-1/2 years. He is of the view that shop in question is not needed in good faith for his own use by the appellant. The petition is mala fide with a view to enhance the rate of rent. He admits that the appellant sells books and stationery. He supplies books and stationery to the schools etc. In cross-- examination, he has 'categorically admitted that Muhammad Siddiq is in possession of Shop No.1679/2. He thus lends effective support to the statement of Muhammad Siddiq where he stated that Shop No.1679/2 is in his (Muhammad Siddiq) possession. While the other three shops are with the tenants including the present one. From this, it is concluded quite safely that no other shop located in the area of Cantonment Board, Rawalpindi, belonging to appellant is lying vacant which he could occupy for his business, to earn his living.
10. The next question is as to whether the appellant has come in, good faith to the Court. According to the contents of the application, his case is that he carries on business by roaming in markets and sells articles from place to place. The respondents admit that the appellant is not in possession of any shop but he supplies books and stationery to certain schools. In this case, factum of ownership stands established. At one stage, a suggestion was put to Muhammad Siddiq P.W.1 and in answer to that he stated that the appellant had been running business for the last 2- 1/2 years, selling copies and pencils on cycle supplying to different schools. This suggestion makes out the case of the appellant that he needs the shop in good faith for his own use.
11. A legal proposition has been raised by contending that co-sharer's possession is the possession of other co-sharer. He maintains that his brother Muhammad Siddiq, a co-sharer, is in possession of Shop No. 1679/2. In the eyes of law, Siddiq's possession is the possession of the appellant as well.
In support of this, he relies on 1991 M LD 1236. In addition to this, it has also been stated that failure on the part of appellant to disclose that, he and his brother are in possession of the adjacent shop, does not entitle him to have the shop vacated. Factually, nowhere the appellant admits that he is in physical possession of Shop No.1679/2. At the. Most, it can be said that both the brothers being co-sharers of Shop No.1679/2 have joint title but not the physical possession together. The business is not being run jointly by them. The Court below was not persuaded to accept that co-sharer's possession is the possession of other co-sharer but the ejectment petition was dismissed on the ground that the shop was lying vacant which the appellant could very well-use for his business.
The Rent Controller has not dealt with the proposition that co-sharer's possession is the possession of other co-sharer. Most probably, this legal proposition was not put before the Rent Controller. It also does not find mention in the written statement. As far as the Rent Restriction Ordinance is concerned landlord not being in exclusive occupation of another shop but in occupation of same alongwith his family members does not debar him from having the shop vacated for purpose of starting independent business. Thus the argument of the learned counsel, which, seemingly was not raised before the lower tribunal, is not tenable in the eyes of law being contrary to the law declared by the superior Courts. Even otherwise, if such a principle that co---owner's possession, is the possession of other co-owner is adhered to in rent cases, it would create an anomalous situation of restraining other co-owners not to have independent/separate source of income for their living for all times to come. For these reasons, the landlord is not under obligation to disclose in the ejectment petition that he was/is in occupation of any other shop as a co---owner. In addition to this, "possession" in actual and having assumed the existence whether claimed by virtue of some title or without has no total similarity with "occupation" which does not entail the element of constructive possession of the whole. This meaning of the possession has an important distinguishing construction through occupation, control and use etc. In the relevant proposition, the word 'co-owner' has been used which in no manner can be stretched into that Urban Rent Restriction Ordinance is meant and to deal with matter of ejectment/rent cases considering the symbolic possession of the landlord. The constructive possession is based on some title but not the possession alone. If such meaning of proposition is afforded it will make Urban Rent Restriction Ordinance/Ejectment Law redundant mostly. Hence, the legal proposition raised by the learned counsel for the respondents that possession of Muhammad Siddiq of Shop No.1679/2 be also considered the possession of present appellant, has no substance.
12. In view of the above, I accept this appeal, set aside the impugned judgment dated 28-10-1993 passed by the Additional Rent Controller, Rawalpindi Cantonment, and the respondents are directed to vacate the shop by 17-2-1995 and hand over vacant possession of it to the appellant.
No order as to costs.