IHSAN-UL-HAQ CHAUDHARY, J.- The relevant facts for the decision of this constitutional petition are that the petitioner took lease of land measuring 8 Kanals comprising of Killa Nos. 22, 23 and 24 Rectangle No. 243/13 situated in Chak No. 10/NP, Sadiqabad for installation of service station through registered deed dated 8.7.1963. It was for a period of 30 years and the petitioner was to pay Rs. 1,000/- per annum as lease money. Syed Ahmad, the lessor, died. Mutation No. 815 of his inheritance was entered in the Revenue record and sanctioned on 21.5.1964 in favour of the respondent No. 1, his mother, four real brothers and three real sisters. Respondent No. 1 filed an ejectment application against the petitioner. It was claimed by her that she had become sole owner of the land as the heirs of Syed Ahmad had transferred their share in the land to her. It was added that the petitioner was informed as to the change of ownership vide notice dated 24,4,1982 which was duly received by him but neither he got the lease renewed nor cared to pay the rent for one year. Therefore, he was liable to be ejected on account of breach of the terms and conditions of the lease. The petitioner appeared and contested the ejectment petition. The main defence of the petitioner was that he was co-owner in the khata, therefore, there was no relationship of land- lady and tenant between the parties and for that reason the Rent Controller has no jurisdiction in the matter. The Rent Controller seized of the jurisdiction proceeded to frame the following issues:-
(i) Whether this Court lacks jurisdiction? OPR
(ii) Whether relationship of landlord and tenant does exist? OPA
(iii) Relief.
Respondent No. 1 examined Syed Khalid Shehzad as AW 1, Syed Mazhar Hussain as AW 2 while Syed Hassan Ahmad appeared as AW 3. Thereafter, the learned counsel for the landlady produced documents Exs. A/l to A/12 and closed her side. The petitioner in rebuttal appeared as RW. 1 while his learned counsel produced documents Exs. R/I to R/14 and closed his side. The Rent Controller after hearing the arguments decided both the issues in favour of the landlady vide order dated 19.10.1991 and proceeded to order ejectment of the petitioner. This order was assailed through an appeal before the Appellate Authority which dismissed the appeal vide order dated 1.2.1993. The petitioner, thereafter, filed the present constitutional petition which was admitted to hearing and notice was issued to the respondents. Respondent No. 1 alone has appeared through M/s. M. Rahim and S.M.Hussain Khan, advocates and contested the petition.
2. Ch. Nascer Ahmad and Sh. Azim Ashraf, Advocates, learned counsel for the petitioner argued that Zia Ahmad, predecessor-in-interest of the lessor owned in all land measuring 399 Kanals and 8 Marlas. He was succeeded by two widows including respondent No. 1, 6 sons and 4 daughters.
Syed Ahmad, the lessor, was one of the sons who let out the disputed piece of land to the petitioner vide registered lease deed dated 8.7.1963 placed on record as Ex. A/l. The lessor died in the end of 1963 and his estate developed on respondent No. 1, his mother, four real brothers and three real sisters and Mutation No. 815 of his inheritance was sanctioned on 21.5.1964. It is added that his way the respondent became owner of 39 shares in the entire Khata. She proceeded to sell 20 shares to the petitioner vide Mutation No. 89 sanctioned on 19.11.1966 and placed on record as Ex. R/I while the remaining 18 shares were sold by her to Jalal Din vide Mutation No. 90 sanctioned on 22.8.1964 Ex.
R/12. This way, respondent No. 1 ceased to be an owner in the Khata. It is added that this is fully proved by the copies of the Jamabandis for the years 1966-67 Ex. R/6. 1970-71 Ex. R/7, 1974-75 Ex. r/8, 1978-79 Ex. R/9 and 1982-83 Ex. R/10. It is argued that thereafter she acquired land measuring 8 Kanals through gift deed registered on 30.3.1982 from her son Abdul Rashid while another piece of land measuring 4 Kanals 1 Marla was acquired by her through gift deed registered on 5.4.1982 from her sons Hassan Ahmad, Mahmood Ahmad and daughter Mst. Zakia Begum. The Revenue Authorities sanctioned Mutation No. 3170 dated 3.10.1987. This way the respondent No. 1 again became shareholder in the Khata and accordingly her name re-appeared in the Jamabandi for the year 1986-87 Ex. R/ll. It is argued that the petitioner besides this had purchased land from Mst.
Surriya Parveen, step-daughter of respondent No. 1, through Ex. R/5 and yet another area of one kanal was purchased by him from Hassan Ahmad AW3 son of respondent No. 1. This way, he has become owner in the Khata and ejectment petition was not competent. The Courts below failed to take this documentary evidence of unimpeachable character into consideration. The learned counsel in support of this contention relied on the cases reported as Muhammad Nawaz v. Abdul Latif (1971 SCMR 198) and Izhar-ul-Hassan Rizvi v. Abdul Rahman (1992 SCMR 1352). It is added that in such situation the principle of estoppel does not come into play. In this behalf, the learned counsel has referred to the case reported as Muhammad Bakhsh v. Khuda Bakhsh (1993 MLD 937).
3. On the other hand, the learned counsel for respondent No. 1 argued that the land, the subject/matter of the ejectment petition, was not a part of the joint khata, therefore, the plea of co- ownership is not available to him. It is submitted that the land in dispute was taken of the joint holding of the parties and was made over to Syed Ahmad as a result of private partition. In support of the argument, the learned counsel has referred to recitation of this fact in the lease deed Ex. A/l.
It is added that the petitioner having accepted the terms and conditions of the lease and put his signature on it now cannot turn round and contend that this land was also part and parcel of the joint Khata. The learned counsel in this behalf referred to the case reported as Ali Muhammad v.
Shera and another (1987 SCMR 207). It is added that the land after the death of Syed Ahmad devolved on Mst. Ahmadi Begum respondent No. 1, Abdul Rashid, Hassan Ahmad, Mahmood Ahmad, Abdullah, real brothers, Mst. Razia Begum,Mst. Safia Begum and Mst. Zakkia Begum real sisters. The same has been transferred by Abdul Rashid vide gift deed Ex. A/3 and Hassan Ahmad, Mahmood Ahmad and Mst. Zakkia Begum vide gift deed Ex. A/4. It is submitted that the argument advanced on behalf of the petitioner that respondent No. 1 had sold her entire share is absolutely incorrect. It is submitted that the total Khata measured 399 Kanals 8 Marlas. Respondent No. 1 as widow got l/16th of this land i.e. Roughtly 25 Kanals whereas according to the Mutations Exs. R/13 and R/14 she had in all sold land measuring 15 Kanals 4 Marlas. This way, the respondent No. 1 is still owner to the extent of about 10 kanals. It is argued that the land is admittedly situated within the municipal limits, therefore, it has ceased to be agricultural land and the Land Revenue Act is not applicable to it in view of the provisions of section 3 of this Act, therefore, the question of Partition does not arise. The learned counsel in this behalf has referied to the cases reported as Muhammad Hussain v>. Muhammad Diq etc., (PLD 1975 Lahore 234) and Raja Khizar Hayat v. Saleh Muhammad (PLD 1986 Lahore 242). It is added that partition had already taken place. It is submitted that partition can either be carried through the Revenue Authorities or by private treaty, in this behalf the learned counsel has referred to the case reported as Muhammad Ibrahim v. Muhammad Sharif (1980 CLC 296). Therefore, there is no need of any further partition. It is added that the petitioner continued paying lease money till 1982 and never took up the plea that he was co-owner ir the Khata and ceased to be tenant. Therefore this plea is not available. The learned counsel in this behalf referred to the cases reported as Ghulain Mustafa v. Muhammadi Begum (1971 SCMR 432), Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani, (PLD 1985 S.C.l), Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCMR 913) and Muhammad Idrees v. Mst. Safia Begum and others (1986 SCMR 795). It is added that appraisal of evidence is not possible as it is not an appellate Court. In this behalf the learned counsel has referred to the cases reported as Noor. v. Manager of his highness, the Mir of Khairpur (1992 SCMR 1931), Qasim v. IVth Senior Civil Judge and Rent Controller (East), Karachi (1993 MLD 1846) and Muhammad Zaffar Iqbal v. Mst.
Pareeven Akhtar (NLR 1992 Civil 522). It is argued that the petitioner should first surrender possession and then take whatever plea he wanted to urge. It is added that it is a case of concurrent fmdings of fact recorded by the two Courts of competent jurisdiction with reference to the evidence on record therefore not amenable to constitutional jurisdiction.
4. Ch. Naseer Ahmad, the learned counsel for the petitioner which summing up the arguments submitted that it is correct that Zia Ahmad left 399 Kanals 8 Marlas of land which devolved on his widows, sons and daughters. It is added that the heirs of Zia Ahmad immediately after his death proceed to sell the land measuring 200 Kanals jointly through Mutation No. 66, which is duly reflected in the Revenue record. It is clear from Exs. R/I, R/2, R/3 and R/4 chat the total holding of the family was thus reduced to 199 Kanals 6 Marlas and the share of respondent No. 1 in this area was 39/592 and in terms of area it comes to 15 kanals 3 Marlas. It is explained that this was her total share from the inheritance of her husband Zia Ahmad and son Syed Ahmad as she got 2/32nd share from her husband and in terms of area this would be l2 Kanals 9 Marlas while she got 7/512th share from estate left by her son Syed Ahmad and in terms of her entitlement was 2 Kanals 14 Marlas, whiie she sold through mutations Exs. R/I and R/2 an area of 15 kanals 4 marlas. This way she had already sold land in excess of her share in the joint Khata. It is added that, in fact, the Khata has not been partitioned between the heirs of Zia Ahmad and the vendees from them. The plea of private partition was introduced only to facilitate lease of the land by Syed Ahmad as Burmah Shell Co. Insisted on lease of specific portion. It is argued that assuming without conceding that joint Khata was partitioned as written in the lease deed. But still respondent No. 1, four real brothers and three real sisters of Syed Ahmad became the joint owners of land after the death of Syed Ahmad. It is added that it is nobody's case that heirs of Syed Ahmad proceeded to partition the land which they got from him. Therefore, again the petitioner after acquiring the land from respondent No. 1 and Hassan Ahmad became share-holder in the land in dispute. It is added that the plea that respondent No. 1 is exclusive owner of the disputed land is belied by two facts. Firstly, she was not owner of single inch of land except the land she got through registered gift deeds Ex.
A/3 and Ex. A/4. Secondly, Syed Ahmad was succeeded by four brothers and three sisters.
Admittedly Abdullah, Mst. Safia Begum and Mst. Razia Begum had not transferred their share in the land in favour of respondent No. 1. It is argued that this fact completely falsified the claim of respondent No. 1 that she is sole owner of the land let out to the petitioner.
5. If have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases. Respondent No. 1 pleaded in the ejectment petition that she is the sole owner of the land in dispute and the petitioner "is in possession of the same as a tenant in pursuance of the lease agreement dated 8.7.1963, Respondent No. 1 thereafter 'pleaded that after the death of Syed Ahmad, the original lessor, the land devolved on his heirs including her and the other heirs proceeded to transfer their shares in her favour. It was added that the petitioner was creating legal complications and, therefore, the ejectment was sought on the grounds of default, refusal to renew lease deed, interference with the ownership rights and violation of the terms and conditions of the lease. The petitioner on the other hand claimed that having purchased land from respondent No. 1, her son Hassan Ahmad and her step/daughter Mst. Surriya Parven he.
Has become owner in the Khata. It was argued on behalf of respondent No. 1 to meet this defence of the petitioner that so far as the land the subject matter of the lease is concerned it was separated from the remaining Khata through private partition and the petitioner had accepted this position by signing the lease agreement. Therefore, the ownership in rest of the Khata was of no legal consequence and the Respondent No. 1 is exclusive owner of the lease hold. This controversy gives rise to following two important and basic questions:--
(1) Whether the petitioner is owner of any portion of land in dispute?
(2) Whether respondent No. 1 is the sole owner of the land in dispute?
14 Now coming to the first question. Zia Ahmad, the original owner was owner of land measuring 399 kanals 8 marlas and immediately after his heirs including respondent No. 1 proceeded to sell land measuring 200 kanals thereby reducing the land to be distributed amongst his heirs to 199 Kanals 6 Marlas. This is patently clear not only from the documents of the petitioner Exs. R/I, R/2, R/3, R/4, R/5, R/12, R/13 but also from the documents Exs. A/3, A/4, and A/5 produced by the respondent Nos. 1 got 2/32nd share from her husband and in terms of area l2 kanals 9 m:*rlas while Syed Ahmad her son got 7/64th share and in terms of area it comes to 21 Kanals I6 Marlas and after this death respondent No. 1 his mother got 7/512th share and in terms of area 2 kanals 14 marlas. This way, she became owner of 39/512th share out of the land left by her husband and son and in terms of area of land measuring 15 kanals 31/2 marlas. This is clear from the copy of Mutation No. 89 Ex.
R/I whereby she proceeded to sell 20/512th share to the petitioner and in terms of area 8 kanals vide above mutation sanctioned on 19.11.1966. She sold the remaining 18/512th share equivalent to 7 kanals 4 marlas to Jalal Din vide Mutation No. 90 Ex. R/12. This way, she sold in all 15 Kanals 4 marlas.
It is, therefore, clear that she ceased to be owner in the Khata. The result was that her name was omitted as owner in the Jamabandis 1966-67 Ex. R/6. The same position continued in the subsequent Jamabandis for years 1970-71 Ex. R/7, 1974-75 Ex. R/8, 1978-79 Ex. R/9 and 1982-83 Ex.
R/10. Now if the land the subject matter of the lease deed is treated as a separate entity then respondent No. 1 after the death of Syed Ahmad, the original lessor, her son became owner of 2 kanals 14 marlas out of the area of 8 kanals. She having sold her entire ownership which included the this area of 2 kanals 14 marlas also ceased to be an owner and instead the petitioner, vendee from her, at least became owner of 2 kanals 14 marlas out of the area of 8 Kanals. Besides this be purchased land measuring 1 kanal from Hussan Ahmad through Mutation No. 185 sanctioned on 20.10.1969 copy placed on record as Ex. R/2. Hassan Ahmad who was real brother of the original lessor succeeded to an area of 1 kanal 4 marlas. The result of these purchases was that the name of the petitioner was incorporated in the Jamabandis Ex. R/8, EX. R/9, Ex. R/10 and Ex. R/ll as a co- owner. The learned counsel for respondent No. 1 argued that the petitioner is already in possession of the land purchased by him. In this behalf, they referred to Exs. R/6 to R/ll according to which the petitioner at no point of time was in possession of the land less than l2 kanals I6 marlas. But the learned counsel for the respondent while raising this argument did not keep in mind that these entries read as- meaning thereby that the petitioner was in possession of a part of the land as owner and of a part as lease. But the areas of ownership and lease have not been specified. Therefore it was claimed by the learned counsel for he petitioner that he had become owner of the land to the extent of 3 kanals 14 Marlas at least in the land in dispute.
6. Now coming to the second question whether the respondent No. 1 is owner of whole of the land in dispute? It is clear from the above discussion that respondent No. 1 had sold her entire area in the joint Khata including the land in dispute. She ceased to be owner of any part of the land. She claimed in the ejectment petition that the heirs of Syed Ahmad had also surrendered their shares in the land in dispute in her favour. Therefore, she had become owner of the whole land instead of Syed Ahmad. We have seen that her claim as to her own share is incorrect. The remaining part is also not very accurate as Syed Ahmad was succeeded besides respondent No. 1 his mother, by his four brothers, namely, Hassan Ahmad, Mahmood Ahmad, Abdul Rashid and Abdullah and three real sisters, namely, Mst. Razia Begum, Mst Safia Begum and Mst. Ruqqiya Begum. Out of these seven brothers and sisters Abdul Rashid proceeded to transfer land measuring 8 Kanals vide gift deed Ex. A/3. Now the share of each brother in the area of 8 kanals was only 1 Kanal 4 marlas. A perusal of the gift deed shows that the land which was transferred was in the shape of four plots.
The learned counsel for the respondent while claiming the transfer of his share in the land in dispute pointed out to plot No. 1 where the words "petrol pump" appear but failed to appreciate that out of the area in dispute, as already noted, the share of Abdul Rashid was 1 kanal 4 marlas only. Moreover, the reference to petrol pump is for describing the boundaries of the said plot. The text reads as under:- This cannot be read conveying the area from the land in dispute. At best it could have conveyed 1 kanal 4 marlas according to the share of Abdul Rashid. Besides this it is not anybody's case that the land in dispute was ever dived into plots.
7. Now coming to the gift deed Ex. A/4. This was executed by Hassan Ahmad for'himself, Mahmood Ahmad brother and Mst. Zakia Begum sister. This covered an area of 4 kanals 1 maria. There is absolutely no indication that the land gifted was part of the land in dispute. Even otherwise, their share was 3 kanals only. Now if both the documents read together, it becomes clear that Abdullah, Mst Razia Begum and Mst. Safia Begum did not transfer their shares from the inheritance of Syed Ahmad to respondent No. 1. This falsifies the claim of the respondent in the ejectment petition that she is the sole owner of the land in dispute.
8. Now summing up the position. The petitioner is co-owner in the land in dispute and coversely speaking the respondent is not owner of the entire area of 8 kanals.
9. It is evident from the record that the plea of private partition though incorporated in the lease agreement yet was not accepted by the Revenue Authorities. The learned counsel for the petitioner during arguments submitted that mutation of lease was also entered in the record but was not sanctioned for the reason that the Revenue Authorities refused to give their blessings to the alleged private partition. They treated the Khata as joint. This is clear from the copies of the Jamabadis on record where Syed Ahmad or his heirs have not been treated as exclusive owners of the land in dispute. The conduct of respondent No. 1 is also against the partition of the joint khata because whenever she sold the land she sold from the entire khata and not specific share in the land in dispute and when she acquired land it was again in terms of joint khata. Therefore, there is no difficulty in holding that it is the joint khata. This completes the factual controversy.
10. Now coming to the legal aspect whether ejectment petitioner was competent against the petitioner, who had become co-owner in the land? I have already concluded while dealing with the second question that the landlady was not owner of the entire area of 8 kanals as per documents placed on the record by herself. It may be added here at the cost of slight repetition, that this exercise was done assuming that the area of 8 kanals, subject matter of the lease, was an independent entity/Khata. The landlady having failed to prove ownership over the whole piece of land and on the other hand the petitioner has successfully -proved that he has become co-owner at least to the extent of 2 kanals 14 marlas having purchased from respondent No,
1. Therefore, respondent No. 1 who is owner of part of the land in dispute cannot maintain the ejectment petition against the petitioner who is a co-owner. The petitioner is co-owner of each inch of the land and covered by the definition of 'landlord' as given in the Urban Rent Restriction Ordinance. Therefore, the Rent Controller has no jurisdiction in the matter.
11. The learned counsel for the petitioner in support of the argument that ejectment petition is not maintainable against a co-sharer has referred to the cases reported as Muhammad Nawaz v.
Abdul Latif (1971 SCMR 198), Muhammad Bakhsh v. Khuda Bakhsh (1993 MLD 937), Ishra-ul-Hassan Rizvi v. Abdul Rahman (1992 SCMR 1352), Shoukat Javed v>. Abdul Khalid (9991 SCMR 215). First in the series is the case of Muhammad Nawaz wherein it was, held as under:- "* jn v;cw> 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."
While in the case of Izhar-ul-Hassan Rizvi (supra) it w s held as under:- "Unfortunately it was not pointed out that section 11.6 of the Evidence Act which embodied the doctrine of estoppel was not exhaustive and that the tenant could plead that his landlord's title and come to an end or been extinguished s. ^sequent to the commencement of his tenancy. If any authorities are required for this view, Kumar Kirishana Prosada Deolal Singha 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 no claim to the disputed shop."
The above principle for ejectment not competent against a co-sharer was followed by this Court in the case of Muhammad Bakhsh (supra). The case in hand is even weaker than this case as the landlady is owner only of a part.
12. The learned counsel for respondent No. 1 on the other hand have referred to be cases noted above alongwith their arguments. The rule deduced in these is cases is not applicable to the case in hand as the facts are clearly distinguishable.
(i) In the case of A1 I Muhammad v. Shera (supra) the appellant had purchased specific Killa Numbers and subsequently contention was raised that as the khata was not partitioned, therefore, it would be a sale of unspecified share so as to make him co-sharer in the Khata but it was not accepted. This is not the case here.
(ii) 1 e case reported as Province of Punjab v. Mufti Abdul Ghani (PLD 19. 5 S.C. 1) does not advance the argument of the learned counsel for the respondent No. 1. It was held with reference to the case reported as Makhan Baito v. Hani Abdul Chani (PLD 1984 S.C. 17) and Rehinalullah v>. Ali Muhammad and another (1983 SCMR 1064) that the rule of estoppel vis-a-vis a tenant and landlord cannot have universal application to the cases arising under the Punjab Urban Rent Restriction Ordinance. The relevant portion of the judgment reads as under:- "In this case it is to be observed 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 the 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 after the determination thereof. Moreover, it should be of the landlord who 'let the tenant in' and not of any other person."
While the relevant portion of he judgment in the case of Makhan Bano (supra)reads as undet:- "****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 landlor's title is relevant for the purpose of granting or refusing him an equitable discretionary relief when such denial is coupled with manifest breach of his statutory duties as provided under the Ordinance. Reliance is aaced for this on Amanullah Khail v. Chhotey Khan (198\78 SCMR 14), Muhammad Shah Alam v. Muhammad Abdul Ghafoor (1979 SCMR 443) and Muhammad Yusuf v. Asgltar Hussain (1980 SCMR 866)."
(iii) In the case of Muhammad Ibrahim (supra) it was held that a person occupying the land under private partition shall be considered ostensible owner of the land. It does not help the respondent as discussed above.
(iv) In the case reported as Iqbal and 6 others v. Mst. Rabaiv Bibi and another (PLD 1991 S.C. 242) the tenant has not yet become owner and the suit for specific performance was still under adjudication. This case, therefore, is not relevant to the present controversy.
(v) In the case of Nazir Ahmad (supra) the denial was not outright and was raised at the subsequent stage.
(vi) The case of Ghulam Mustafa v. Muhammadi Begum (1991 SCMR 432) was decided on the basis of the rule laid down in the case of Nazir Ahmad v. Sardar Bibi (1989 SCMR 913). The plea of nonexistence of relationship of tenancy was not pressed in the first round of litigation.
(vii) In the case of Muhammad Idrees (supra) again the issue of relationship was not raised at the earlier stage. The result was that there was no adjudication by the Courts below whereas in the case in hand the issue was raised on the very first day.
(viii) The case of Muhammad'Hussain (supra) has been referred in support of the argument that where a house or similar structure is built on the land thci. It does not remain part of the estate. This was a pre-emption case. The purpose of citing this judgment seems to be that since on the land in dispute service station has been constructed, therefore, it has ceased to be a part of the joint khata. This again does not help due to facts noted . Above. Moreover, it was held that a person who converted the only piece of land into a building then he walks out of the estate, therefore, no more owner of any part of the. Estate and cannot claim superior right bf pre-emption. This is not the case in hand.
(ix) In the case of Raja Khizar Hayat (supra) again the land on the basis of which the pre-emption suit was filed has lost the agriculture character, therefore, the pre-emptor could not claim to be owner in the estate.
13. TRe-leanied counsel for respondent No. 1 in support of the argument that while deciding the constitutional petition this Court should not reappraise the evidence like the appellate Court. In this behalf the learned counsel has referred to the cases reported as Muhammad Zafar Iqbal v. Mst.
Parveen Akhtar (NLR 1992 Civil 522) and Qasim v. IVth Sbnior Civil Judge and Rent Controller (East)
Karachi (1993 MLD 1846). In the case reported as Noor alias Noor Muhammad v. Manager of his Highness, The Mir of Khairpur (1992 SCMR 1931) it was held that where the petitioner has made factual assertion, it was not a fit case for interference in constitutional jurisdiction. While in the case of Muhammad Sharif v. Muhammad Af/.Al (PLD 1981 S.C. 246) it was argued that scope for interference is very limited. Mere fact that another conclusion being possible on vidcnce adduced, held, does not make it a case for interference in exercise of constitutional jurisdiction. It was also held that the High Court should not sit to decide the writ petition as a Regular Second Appeal.
These judgments are not relevant because it is a case of gross misreading of evidence and non- reading of material evidence on record resulting in illegal assumption of jurisdiction. Therefore, it is a fil case to interfere in writ petition. I am fortified in my view by the judgment of the Hon'ble Supreme Court in the case reported as Khizar Hayat Khan Tiwana v. Zainab Begum (PLD 1967 S.C.
402). The orders of respondents Nos. 2 and 3 are without jurisdiction, therefore, not sacrosanct and liable to be set aside in constitutional jurisdiction.
14. Now coming to the other aspect that the respondent No. 1, the landlady, has failed to prove her ownership in respect of the land in dispute. The ejectment petition was incompetent and her remedy was before the Civil Court to establish her title. We in this behalf refer to the case of Rahmatullah (supra) wherein it was held that the Rent Controller need not go into the intricate question of title.
The Hon'blc Supreme C ourt, after examination of the case law on the point, held as under:- "It has already been held that when the decision of the issue regarding relationship of landlord and tenant depends solely and not only incidentally on the question of the ownership and title to the properly and it will not be possible for the Controller to decide the case without deciding the basic question involved regarding title, then in such like cases it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative. It has also been observed that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment.
The decision of maii\issue depends directly on the decision regarding title in the present case."
The same view was followed in the case of Abdul Hameed Naz and others v. Razia Begum Awan and others (1991 SCMR 1376).
15. It is clear from the case law referred to by the parties that conditionsprecedent for successfully defending ejectment petition on the ground of co- ownership are- *(i) that the objection should be taken at the beginning of litigation;
(ii) that the objection should be based on a Past and closed transaction and not merely on the agreement to sell Legal consequences of a tenant of the property becoming co-owner are-
(a) that a tenant who acquires the status of co-sharer, ceases to be a tenant as he himself would be covered by the definition of 'landlord';
(b) that the principle of estoppel as enunciated in Article 15 of the Qanoon-e-Shahadat (S. 116 of the Evidence At) is not attracted when the tenant acquires the status of co-owner;
(c) that a tenant after obtaining the status of co-sharer is entitled to retain the possession till partition;
(d) that the Rent Controller would have no jurisdiction in the matter; and
(e) that the remedy of the ex-landlord would be initiation of partition proceedings in case of agricultural land and institution of partition suit in case of urban immovable properly.
16. It is, therefore, clear that findings on both issues Nos. 1 and 2 are liable to be reversed.
17. The upshot of the above discussion is that the impugned orders of respondents No. 2 and 3 are declared illegal and without jurisdiction by accepting the writ petition with costs.