1. ' F.R.A. No,740 of 1988 (Abdul Ghani v. Abrar Hussain), F.R.A. No,356 of 1993 (Syed Tehwar Hussain Kazmi and others v. Haji Muhammad Ismail), and F.R.A. No,357 of 1993 (Muhammad Ismail and others v. Muhammad Ibrahim), involve consideration of certain facts and points of law common to all these cases. I have, therefore, heard these appeals together and I am deciding these appeals by this common judgment.
2. ' On 1-8-1915 a plot of land measuring 11,401 sq. Yds. Bearing Land Survey No,9/24-B, Badshahi Road (Lawrence Quarters Area), Karachi was leased out for a period of 80 years by the erstwhile Government of Sindh to one Motichand Mohandas Lothan. The lessee constructed a number of buildings on the said plot. He built a set of 15 buildings which were separated by a path and 4 buildings were constructed across the path. Such property on establishment of Pakistan became evacuee property. The Chief Settlement Commissioner treated this property to be a big mansion although there were at least 285 separable Departments in these buildings, tenanted by different persons. The said evacuee property was put to open public auction and one Nawab Din gave the highest bid. Nawab Din associated himself with 58 other claimants and made the part payment of the bid price through their compensation books. Consequently the Deputy Settlement Commissioner issued them a Provisional Transfer Order on 17-12-1959 on the terms and conditions mentioned therein. It appears from the letter dated 23-8-1987 addressed to Mansoor Hussain son of Abrar Hussain (son of respondent Abrar Hussain in FRA No,740/88) that the transfer price of the property in question was not paid at least till then.
3. ' The admitted position in all these appeals is that a permanent transfer order has also not been issued by the Settlement Department or any other authority after the repeal of evacuee laws.
4. F.R.A. No 740 of 1988.
5. ' One Abdul Ghani, appellant in F.R.A. No,740 of 1988, filed an ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 on 18-2-1987 before the Sr. Civil Judge and Rent Controller (South), Karachi and his case was registered as Rent Case No,257 of 1987, seeking ejectment of one Abrar Hussain who was in occupation of one of the tenements of the building known as Topendas Alimchand Building, one of the blocks that were transferred to Nawab Din. He claimed to be son of one Nanney Khan, who had expired and was one of the transferees of the evacuee property in question. He claimed ejectment on the ground that Abrar Hussain has committed default in payment of rent with effect from January, 1984 till January, 1987 and the rent was payable at the rate of Rs,134 per month. He also needed the premises for bona fide use of his family ' The alleged tenant denied that relationship of landlord and tenant existed between the parties and claimed that he had purchased the share of one Salimullah, one of the 59 transferees, through an agreement to sell supported by irrevocable power-of-attorney and was himself an owner of the premises. He further claimed that Nawab Din had approached him and demanded rent. Nawab Din did not establish his credentials as owner of the property in question and, therefore, he started depositing rent in Miscellaneous Rent Case No,3922 of 1982. Similarly; he asserted that Abdul Ghani did not have any title in respect of the property in dispute.
6. ' The Rent Controller, on the basis of the pleadings of the parties, formulated following issues for his consideration: "(1) Whether there is relationship of landlord and tenant between the parties?
(2) Whether the tenant is wilful defaulter in payment of rent?
(3) Whether the applicant requires the demised premises for his personal bona fide use in good faith? .(4) What should the order be?"
7. ' On the basis of the evidence adduced by the parties, the Rent Controller decided the first issue in the negative, while he gave no finding on Issues Nos.2 and 3 and dismissed the application with the direction that the applicant may have his title declared from a Civil Court. The applicant in this case, being aggrieved by the order of the Rent Controller mentioned hereinabove, filed First Rent Appeal No,740 of 1988.
8. ' My learned brother Syed Abdur Rehman Shah, J. (as he then was), passed an order on 3-12-1991 whereby he adjourned the hearing of the appeal sine die as, according to him, permanent transfer deed was, as yet, not issued by the Department and it was not known as to what extent the appellant Abdul Ghani was entitled to. Appellant Abdul Ghani, being aggrieved by such order, filed an appeal before the Supreme Court of Pakistan, which was allowed by the judgment dated 10-3- 1992 and this Court was directed to hear the First Rent Appeal and decided it according to law. On a review application filed by Abrar Hussain, the words "as there is no dispute as to the title" were omitted from the judgment of the Supreme Court.
9. F.R.A. No,356 of 1993 ' Haji Muhammad Ismail, another son of Nanney Khan, the respondent in F.R.A. No,356 of 1993, filed an application for ejectment against the appellants on 22-11-1986 in the Court of IInd Sr. Civil Judge and Rent Controller, South Karachi. He filed the ejectment application on the ground of default in payment df rent and personal bona fide use. This application was resisted by the appellants as according to them Haji Nanney Khan, the predecessor-in-interest of the respondent, did not have definite title in respect of a particular apartment which was the joint property of various transferees and also denied that the requirements of the respondent was bona fide, he at best being one out of the 59 transferees of the premises in question. The appellants claimed to be in occupation of a bungalow which was also constructed within the compound of Topendas Alimchand Building.
10. Appellant No,7 claimed that he had purchased the property in question from one Syed Kausar Hussain Kazmi, who had purchased the premises through an agreement to sell from the original transferee.
11. ' The Rent Controller on the basis of the pleadings of the parties, formulated the following points for his consideration: "(1) Whether there exists relationship of landlord and tenant between the applicant and opponent from Sr. Nos.1 to 6?
(2) Whether the opponents have committed wilful default in payment of rent?
(3) Whether the applicant requires the premises in question for personal bona fide use?
(4) Whether statutory notice was required to be served on opponents and co-owner can file the ejectment proceedings without joining other co-owners?"
12. ' On the basis of the evidence brought on record by the parties, the Rent Controller answered all the four points in the affirmative and allowed the ejectment application. The tenants, being aggrieved, have preferred this appeal (FRA No,356 of 1993), against that order.
13. F.R.A. No,357 of 1993 ' Muhammad Ibrahim, the third son of Haji Nanney Khan filed an ejectment application against Muhammad Ismail, who is in possession of a portion of the building known as Topendas Alimchand Building, on the ground that he had committed default in payment of rent, sub-let the rented premises and that it was required for his personal bona fide use. Subsequently, appellants Nos.2 to 7 sought to be joined as the respondents in this rent case and their application was allowed by the Rent Controller and they were impleaded as such.
14. ' The ejectment application was resisted by Muhammad Ibrahim as, according to him, Nanney Khan at best, had a share in the undivided big mansions and its Lull transfer price was not paid to the Settlement Department and therefore transfer of the property in question was not final. He further denied the averments made in the ejectment application.
15. ' The Rent Controller on the basis of the pleadings of the parties formulated the following points for his consideration: "(1) Whether opponent No,1 is tenant of co-owner of the premises in question?
(2) Whether the tenant has committed any wilful default in payment of rent?
(3) Whether the applicant requires the premises in question for his personal bona fide use?
(4) Whether statutory notice was required to be served on the opponent and a co-owner can file ejectment proceedings without joining other co-owners?
(5) What should the order be?"
16. ' On appraisal of the evidence adduced by the parties, the Rent Controller decided the first 4 points in favour of the respondents and ordered ejectment of the appellants. The present First Rent Appeal No,357 of 1993 has been filed by the tenants.
17. ' Mr. Abdul Majeed Khan, Advocate appeared for the appellant in F.R.A. No,740 of 1988 and for respondents in the other two appeals, while Mr. Ali Akbar, Advocate appeared for respondent in F.R.A. No,740 of 1988 and for the appellants in the other two appeals.
18. ' Mr. Abdul Majeed Khan, Advocate, in these three appeals, mainly contended that the three sons of late Nanney Khan, one of the 59 transferees of the property in dispute, as co-owner, are entitled to initiate action under section 15 of the Sindh Rented Premises Ordinance, 1979. He also contended that the person or persons in whose favour provisional transfer order of an evacuee property is issued, he or they will be entitled to recover the rent and initiate other actions under the Ordinance.
19. In support of his such arguments he referred to the cases reported in PLD 1973 SC 214, 1986 CLC 354, 1992 MLD 1601, PLD 1964 SC 189 and PLD 1990 SC 427.
20. ' Mr. Ali Akbar, Advocate appearing in these three appeals contended that the three applicants in the three rent cases are sons of one Nanney Khan, who admittedly was one of the 59 transferees.
21. Nanny Khan is dead and his all the legal heirs are not known. The legal heirs of Nanney Khan, at best, will be entitled according to the share they had inherited out of 1/59 share in the joint properties and till such time their share is ascertained and demarcated at the site, they cannot be treated as the "owners" of the premises. Besides, the opponents in the rent applications have also asserted that they have purchased the share of one of the transferees in each case and had stepped into their shoes as joint owners of the property and the owner cannot be ejected from the premises owned by him as he occupies the premises as owner and not as a tenant. The transferees had admittedly not paid the full price of the evacuee property transferred to them and, therefore, they have acquired no title in the property.
22. ' Mr. Ali Akbar, Advocate for the parties in these appeals has contended as under: .(1) That in case of transfer of a big mansion Provisional Transfer Order cannot be issued unless full price is paid within the stipulated period and the transferee can only seek the ejectment of statutory tenants after the property is permanently transferred to him. He referred to the case of Attaul Haq and two others v. S. Malik Electric Company PLD 1971 Lahore 1007.
(2) That a co-sharer can only seek ejectment of a person in possession of the property to the extent of his share, that too after securing partition of the property. He referred to the case reported in PLI) 1964 Dacca 739.
(3) That the respondents in the rent applications claimed to have purchased the share of original transferees for adequate consideration and became joint owners of the property, notwithstanding the fact that the transfer in their favour was not effected through a registered sale deed. In such d case a co-sharer in possession of joint property cannot be evicted without filing suit for partition.
23. He referred to the case reported in 1971 SCMR 198 and the case reported in PLD 1969 Dacca 319.
(4) That the definition of 'landlord' as contained in West Pakistan Urban Rent Restriction Ordinance, 1959 and Sindh Rented premises Ordinance, 1979 are materially different from each other.
24. ' The admitted facts of these three appeals are that the dispute concerns rented premises in a big mansion sold out through open public auction to one Nawab Din, who associated 58 or 59 other persons for the payment of the price that he had offered in the bid. The full price of the big mansion has not been paid by the auction-bidders and in spite of it Provisional Transfer Order was issued in favour of Nawab Din and 58 others. The shares of 59 persons are not mentioned in the Provisional Transfer Order. During the passage of time some of the transferees sold their share to certain persons who were in possession of certain apartments in the big mansion. The most important point in these appeals is, if the three sons of Nanney Khan since deceased and one of the original persons, who had associated himself in the part payment of the price of big mansion, can be considered to be landlords in terms of the definition given in the Sindh Rented Premises Ordinance, 1979 to enable them to seek ejectment of the alleged tenants. The definition of 'landlord' as given in section 2(f) of the Sindh Rented Premises Ordinance, 1979, is reproduced below:-- "Landlord means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises."
25. Owner of a premises would mean a person who has a title over an immovable property. In the present cases the property being evacuee for which full price has not been paid as yet and no Permanent Transfer Deed issued in favour of the alleged transferees, the 3 sons of deceased Nanney Khan cannot be considered to be the owners. Besides the share of individual alleged transferees is also not determined in accordance with para. 16-B of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. In a case where full price is not paid even a provisional transfer order cannot be issued by the Settlement Department and such transferee can only take action to eject a tenant from the property after it is permanently transferred to him, his share is determined and partition of the property to the extent of his share is sought by him. In the present cases the 3 sons of Nanney Khan or any one else cannot be treated a "owners" of the property entitled to receive rent and seek ejectment of the tenants. Since there is no owner of the property in dispute, there cannot be any person who can be authorised for the time being to receive rent or considered as entitled to receive rent in respect of such premises. This view was taken in the case of Attaul Haq and 2 others v. H. Malik Electric Company, reported in PLD 1971 Lahore 1007.
26. The respondents in the application filed by the 3 sons of Nanney Khan claimed to have purchased share of some of the original transferees for adequate consideration and they were in possession of the premises in dispute. In the present cases when the original transferees did not acquire title as yet, they could not transfer the title to the subsequent purchasers but the purchasers being in possession of the premises were confirmed with their possessory title. They will be protected under section 53-A of the Transfer of Property Act.
27. ' It is also not known if the property in question was intended to be transferred by the department to all the 59 persons or 58 persons had merely transferred their compensation books to Nawab Din for payment of the price only.
28. ' In view of the above, the proper course for the appellant in F.R.A. No,740 of 1988 and the respondents in F.R.A. No,356 of 1993 and F.R.A. No,357 of 1993 will be to first obtain permanent transfer deed of the property in question after making the full payment of the price, have the share of each transferee determined and have the property partitioned according to the share of individuals and then if the property is needed for their bona fide use or default in payment of rent is committed by any of the statutory tenants, action can be initiated against the concerned statutory tenants only.
29. ' For the foregoing reasons I set aside the orders of the Rent Controller impugned in F.R.A. No,356 of 1993 and F.R.A. No,357 of 1993, allow these appeals and dismiss the ejectment applications filed by the respondents in the two appeals while F.R.A. No,740 of 1988 is dismissed.