' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the judgment of the learned Judge in Chamber, whereby the appeal filed by them against the order of ejectment by the learned Controller was dismissed.
2. The respondents filed an application for ejectment against Ahmed Din in respect of shop bearing Municipal No,1-21/3, Sarafa Bazar, Quetta. During the pendency of application Ahmed Din died and his legal heir also expired. Petitioners Nos.1 to 3 being the legal heirs were joined as parties. In the ejectment application it was pleased that the shop has been sublet to petitioner No,4 without consent and permission of the respondents. It was also pleaded that petitioners Nos.1 to 3 had failed to tender rent from the year 1972 onwards and the shop was required in good faith for their own use and occupation. The petitioners did not file any written statement but Muhammad Rafique petitioner No,4 appeared and opposed the ejectment application. It seems that petitioner No,4 had obtained Power-of-Attorney from petitioner No, 1 . In his written statement petitioner No,4 while denying the claim of default and bona fide requirement, pleaded that after the death of Ahmed Din (the original tenant) his son carried on business in the shop who died and his grandson Muhammad Arshad continued business. On 14-9-1982 Muhammad Arshad entered into a partnership business with one Syed Salahuddin and thereafter when Muhammad Arshad also died, his legal heirs and widow continued with the said partnership with Syed Salahuddin. After some time Salahuddin transferred his share to Muhammad Rafique, petitioner No,4 who continued the said partnership. It was pleased that the sons and widow of Muhammad Arshad are the tenants and petitioner No,4 is their business partner. The learned Controller granted ejectment application holding that the shop was required in good faith for personal bona fide use and occupation of the respondents. The disputed shop was sublet and that default has been committed in payment of rent. The petitioners filed appeal which was dismissed by the impugned judgment confirming the findings of the learned Controller on all issues.
3. The petitioners had not filed partnership deed before the Controller but it seems that in appeal the said document was produced and taken into consideration. It is contained in the paper book (Part II) filed by the petitioners. The learned counsel for the petitioners contended that petitioner No,4 entered in partnership but no interest in tenancy was created in his favour and petitioners Nos.1 to 3 are the tenants. The petitioners have nowhere alleged that this partnership deed was entered into with the consent and permission of the respondents. Mere entering into a partnership deed may not amount to subletting or parting with the possession of the shop or premises in which the business of such partnership is carried on but if any interest of the non-tenant partner is created in the tenancy then it will amount to subletting. In this regard reference can be made to Muhammad Subhan v. Mst. Bilquis Begum and others (1994 SCM R 1507 (2), where it was observed as follows:-- "Handing over possession is of a wider implication than mere subletting. In case a partnership firm is a tenant, then all the partners can claim the tenancy rights in proportion of their share. Each partner is deemed to be in possession of the demised property. Once a proprietary firm is changed into a partnership firm, then all the partners have right, title and interest in the tenancy, goodwill, business and assets according to their share unless otherwise provided in the partnership deed."
4. Coming back to the partnership deed, we find that it was entered into between Muhammad Arshad the predecessor-in-interest of petitioners Nos.1 to 3 and Salahuddin. It contains clauses which indicate that Salahuddin's interest was created in the tenancy. It has been mentioned in the partnership deed that the business run by the grandfather of the predecessor-in-interest of petitioners Nos.1 to 3 in the shop was continued by him. He inducted Salahuddin as a partner and changed the business for earning more profits. The tenant-partner was only to invest his tenancy rights and possession while Syed Salahuddin was to invest Rs,60,000. It was further provided that after reducing the investment amount from the income the partners will share profit and loss in equal proportion. The expenses which included rent of the shop were to be borne equally.
Therefore, the rent was to be paid out of the partnership income, half of which was payable by Salahuddin. Under clause 6 it was provided that if anyone of the partners were to retirefrom the partnership, he shall surrender his right in the shop to the other partner who will continue the business and the retiring partner will not have any right in the shop and business. Under clause 9 anyone of the partners, besides the partnership business of selling "Dari" was allowed to continue his separate and independent business in the shop without any restriction. Salahuddin was solely responsible for any further investment in the business and was to maintain accounts. Under the deed the sale and purchase of Dari was to be carried out by Salahuddin and the tenant partner could purchase Dari only on his instruction. From a perusal of these clauses in the partnership deed, it seems that predecessor-in-interest of petitioners Nos.1 to 3 had invested his right of tenancy whereas respondent No,4 had invested cash amount. The outgoing retiring partner was to surrender his right in the tenancy which presupposes that both the partners had right in the tenancy by virtue of this partnership deed otherwise the question of surrendering tenancy rights by Salahuddin would not have arisen.
5. Mr. Basharatullah, learned Advocate Supreme Court for the petitioners contended that clause of retirement was only to be implemented on happening of certain contingency. That may be so but it clearly indicates that firstly both the partners have right in the tenancy and in case the tenant partner retires from the business he will surrender his right in favor of other partner. This clause coupled with other clauses as mentioned above, clearly proves that the predecessor of petitioners Nos.1 to 3 had created interest of Salahuddin in the tenancy. This amounts to subletting and as it was without the permission of the respondent, it was hit by the provisions of section 13 of the Ordinance of 1959.
6. Another aspect which seems to have escaped the notice is that admittedly Muhammad Arshad who had entered into a partnership deed with Salahuddin has died. As there were only two partners, immediately on the death of Muhammad Arshad the partnership stood dissolved.
However, petitioner No,4 seems to be in possession of the shop and is carrying on the business which was carried on by the partnership firm. There is no evidence to show that after the death of Muhammad Arshad, petitioners Nos.1 to 3 had entered into a fresh partnership deed with petitioner No,4 which did not create his interest in the tenancy. In any event the fact that Salahuddin had entered into partnership deed in whose favour right in tenancy had been created, both the Courts were justified in holding that it was a clear subletting of the disputed premises. Furthermore, petitioner No,4 is in possession of the shop under some arrangement with petitioners Nos.1 to 3 without the consent of the respondents. In the circumstances subletting has been proved. Leave is refused. The petitioners are allowed to vacate and hand over peaceful possession of the disputed premises to the respondents on or before the expiry of four months from today failing which the learned Controller shall issue writ of ejectment without notice to the petitioners.