' This judgment will decide Civil Revision No, 1018 of 1994.
2. The facts from which this revision has arisen are that the petitioner, Bhatti & Co. Ltd. Filed a suit for permanent injunction to restrain the respondent (Shah Nawaz Ltd.) from making interference in the possession of the petitioner in shop forming part of 83-Sharah-e-Qauid-e-Azam Lahore, illegally and other than due course of law. The case of the petitioner was that a "Coffee Bar" in the name and style of "Gogo Coffee" was being run in the shop while respondent also held a portion of the property comprising of one Show Room, as a tenant of the owner. The property was claimed to be owned by Sh. Saeed-ud-Din. It was maintained that the petitioner was occupying the shop as a tenant of the owner, namely Sh. Saeed-ud-Din and the defendant was neither the owner nor had any right to make interference in the possession. Explaining the reasons for filing suit, it was alleged that the respondent had served upon the petitioner a notice wherein, the petitioner on being alleged as licence, was required to vacate the premises within 15 days. Refuting this allegation, the petitioner maintained that its status being of a tenant, the petitioner's possession could not be disturbed in an illegal manner. The suit was resisted by the respondent, on the plea that the snack bar was previously run by Rashid Bhatti who was allegedly an employee of the respondent. The entire premises was acquired on rental basis by the respondent while a portion thereof presently occupied by the petitioner, was allowed to be used as a license of respondent.
3. After issues and evidence, the learned Civil Judge decreed the suit by his judgment, dated 23-1- 1991. The plea of respondent that the status of the petitioner was that of a licence and that after the notice, the petitioner should be construed to be a trespasser, was not accepted and it was held that the respondent could not illegally dispossess the petitioner from the premises in issue.
4. Feeling aggrieved, the respondent went in appeal which was accepted by the learned Additional District Judge, Lahore vide judgment, dated 5-3-1994 and in consequence the suit was ordered to be dismissed. Against this judgment, the present revision has been filed.
5. Learned counsel for the petitioner argued that the findings recorded in appeal are based on misreading and non-reading of the evidence on record. Referring to the statement of Sh. Saeed- ud-Din, who appeared as P.W.5, it was contended that the learned Additional District Judge misread the evidence and failed to consider the material evidence on record by observing that there was no evidence to prove the petitioner to be a tenant in the property. It was added that the petitioner was accepted as a tenant by the real owner, the respondent could not interfere in the possession of the petitioner. Learned counsel further submitted that even otherwise the respondent could not interfere in the possession on the principle of user of minimum force as the status of the petitioner was that of a tenant.
6. In defence, learned counsel for the respondent supported the judgment of the Appellate Court and argued that the status of the petitioner was that of a licence, and after notice the petitioner should, be construed to be trespasser and that in law the respondent could use minimum force to taRe the possession for the petitioner. Learned counsel submitted that any arrangement between the owner and the petitioner would not affect the initial relationship of the petitioner and the respondent as a licence and licensor.
7. The claim of the petitioner was that the real owner of the property had directly attorned and accepted the petitioner as tenant and that the rent was being remitted in favour of the owner and, therefore, the respondent could not raise any claim of alleged licence. The relief claimed was against illegal dispossession and nothing else beyond that. Both the Courts below, found the petitioner to be in possession of the property in question, that the only difference, that the learned Trial Court, held that the respondent could not illegally disturb the possession of the petitioner while the learned Appellate Court took the view that the petitioner was a licence and, therefore, the suit could not be decreed. Evidence on record is indicative of the fact that the real owner attorned the petitioner as a tenant and did not deny direct receipt of the rent from the respective occupants.
The case of the petitioner was that consequent upon a compromise with the landlord, after the second petition in the year 1978, the petitioner had become a direct tenant of the owner and paying rent to Sh. Saeed-ud-Din. The real owner appeared as P.W.5 to support the case of the petitioner. Coupled with this evidence, there was documentary evidence in the form of entries in the P.T.I. Record, mentioning the petitioner as a tenant of the original owner. Sh. Saeed-ud-Din in his statement affirmed collection of rent on behalf of his father from the petitioner and also from the other tenant.
8. For the purposes of decision of the suit, the only material was as to whether the petitioner was in possession of the property and that the possession was lawful and if so, could the respondent forcibly and illegally enter upon the promises and dispossess the petitioner. The oral as well as documentary evidence on record does prove that the initial induction in the premises of the petitioner we lawful, the petitioner has been peacefully enjoying the possession, the petitioner has produced sufficient evidence showing direct tenancy with the owners, the real owner had not disputed the lawful possession of the petitioner and, therefore, the respondent could not be permitted to forcibly or illegally dispossess the petitioner from the premises in question. The learned Additional District Judge fell in error while entering into other questions which were not relevant for the decision of the present controversy as the relief claimed in the plaint was only against illegal dispossession. The respondent had not come to the Court for seeking a declaration of the status of the petitioner in the premises nor the petitioner had filed any suit for declaration.
Instead, the suit was for injunction to claim redress against threats of illegal conviction. In this view of the matter, it was not necessary, that the questions pertaining to the plea of bona fides of the plea of licencee should be conclusively determined and it was sufficient if the petitioner would show that the possession rested with the petitioner and that ejectment could not be made except in due course of law. Even if the issue as raised by the respondent is taken into consideration, the plea of the respondent does not appear to be of any substance. Reason being, that admittedly, the respondent is not an owner of the property. Its claim is that a portion of the premises was given to the employee of the Company for user. Admittedly ejectment petitions were filed against the tenant which are finally {{PAGE CUT}} decided. The compromise is claimed with the landlord, subsequent to the decision of the last ejectment petition. Even if the respondent claims that it ha unauthorisely inducted someone else, in a part of the rented premises, there I no bar in the way of the real owner to attorn such document as his tenant. Th tenancy can be statutory, contractual or by atonement and acceptance. The red owner was within his right, to accept on occupant, to be his tenant instead c treating him, as a licencee or an illegal occupant, if the occupant approaches the owner for creation of tenancy as illegal. If the petitioner as a result of direr settlement with the real owner, agrees to an arrangement by which the rez owner attorned that petitioner to be a tenant, the violence of such arranger cannot be challenged, at the instance of the respondent. If the respondent claim that a part of the rented premises has been wrongly taken away by the landlor or that the respondent has been deprived of a part of lease-hold rights, he could file a suit for possession or for restoration of his rights in accordance with la\ but nevertheless the respondent cannot be allowed to plead the responder company can forcibly or illegally take possession from the petitioner.
9. Considering the case from any angle, the threats of illegal eviction could not be proved and, therefore, the learned appellate Court, committee jurisdictional error and proceeded with material illegality, in dismissing the sun and giving a license to the respondent to take forcible and illegal possessio from the petitioner.
10. In Ghulam Muhammad v. Ch. Khushi Muhammad and another (198 CLC 457), it was ruled that the party in possession is entitled to protection c his possession and the merger, that the other side describes such possession t unauthorised will-not permit the latter to take forcible possession. It was further observed that regardless of the actual condition of title or right of possession c property, party in actual, peaceful and quiet possession should not be turned on by violence or terror as no provision of law empowers use of force to acquit possession from a person who is in actual possession of immovable property.
11. In the present case, the petitioner is admittedly in physical possession the property which is for the last number of years. The respondent cannot law use violence or force to dispossess the petitioner. The findings recorded t the learned Appellate Court are patently illegal and without jurisdiction am therefore, the same cannot sustain.
12. For the reasons above this revision is allowed, the judgment of the Appellate Court is set aside by restoring the decree of the Trial Court and it directed that the respondent shall not dispossess the petitioner from the premise in issue, except in due course of law.