' MUHAMMAD AKRAM, J.-This is an appeal filed under clause 10 of the Letters Patent of the Lahore High Court against the judgment dated 15th of July 1966, passed by the learned Single Judge of the then High Court of West Pakistan at Lahore, whereby he dismissed S. A.
0. No, 258 of 1965 filed by the appellant against the respondent.
2. Briefly the relevant facts are these. On the 28th of March 1963, Muhammad Arshad respondent herein filed an application against Hakam Din appellant and two others before the Rent Controller at Lahore under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for his eviction from Shop No, 143, Shah Alamgir Market, Lahore. He alleged that he was the owner of the shop in occupation of the appellant since 4th of January 1956 as a tenant. He prayed for his ejectment on the grounds that he required the shop for his own business, that the tenant had failed to pay or tender the rent for two months, that he had materially impaired the value and utility of the shop and that he had also sublet the shop. But the appellant denied these allegations in his written reply. He admitted that the shop in fact belonged to the firm of Messrs Fiat Brothers and denied the relationship of landlord and tenant between these. Parties.
3. On the pleading of the parties on the 20th of Juno 1962, the Rent Controller framed the following preliminary issue arising out of the pleadings "(1) Whether the petitioner is the owner of the shop and, therefore, the relationship of landlord and tenant exists ?"
' In this connection, on the 8th of February 1962 the Rent Controller was satisfied from the evidence adduced by the parties that in the beginning the firm of Fiaz Brothers gave the shop on rent to the appellant. Bat later on the partnership was reconstituted and according to the deed of the newly formed partnership dated 1-4-1961 (Exb. P. 3) the shop was surrendered in favour of the respondent as the outgoing partner. On these findings the learned Rent Controller decided the preliminary issue in favour of the respondent and proceeded to pass a separate order for the deposit of the arrears and future rent in accordance with the provisions contained in subsection (6) of section 13 of the Ordinance. He also framed the following issues, arising out of the pleadings of the parties, on the merits
(2) Whether the petitioner required the shop in dispute for his personal business ?
(3) Whether respondent No, 1 has committed any such acts as are likely to impair materially the value and utility of the shop, if so, whether the respondent No, 1 can be ejected on this ground?
(4) Whether respondent No, 1 is keeping sub-tenants on the shop without permission of the petitioner?
4. In the course of the proceedings before him, the Rent Controller on the 13th of February 1974, struck off the defence of the appellant for his failure to deposit the rent due for the month of May 1903. The order ' was affirmed on appeal rejected by the District Judge, Lahore. But the High court accepted the second appeal of the tenant on the 11th of November 1964, and remanded the case to the learned Rent Controller for its disposal on the merits.
5. In these circumstances, after the remand, eventually the Rent Controller, Lahore, on the 10th of February 1965, accepted the application of the landlord and ordered the ejectment of the tenant.
He found in favour of the respondent on Issues Nos. 2 and 3 and against him on Issue No, 4 and in the result entered the ejectment of the tenant from the shop. These findings were affirmed in appeal by the Additional District Judge, Lahore, on the 26th of April 1965. Dissatisfied, Hakam Din tenant came up to the High Court in second appeal against the order. But that too was dismissed with costs by a learned Single Judge of this Court on the 15th of July 1966. Hence this Letters Patent Appeal before us against the judgment.
6. Before us at the hearing the learned counsel for the appellant did not challenge the concurrent findings recorded under Issues Nos. 2 and 3 in favour of the respondent. He, however, vehemently argued before us that on the facts and circumstances of this case the respondent has failed to establish under issue No, 1 that he was the owner of the shop and that the relationship of landlord and tenant existed between the parties. In this connection, it is common ground between the parties that on the 4th of January 1956, Hakam Din appellant had executed the rent deed (Exh. P. 4) for this shop in favour of the firm of Messrs Fiaz Brothers, Lahore. But afterwards the respondent Muhammad Irshad withdrew from the partnership and on the 1st of April 1961, a fresh deed of partnership was executed between the partners of the reconstituted firm. Muhammad Afzal, a brother of the respondent was a member of the old firm and he continued to be a partner of the reconstituted firm after the withdrawal of the respondent. The dispute in this ease centres round clause (3) of the deed of partnership dated 1.4-1961 executed between Muhammad Afzal and other members of the reconstituted firm. It is reproduced below in extenso "That the shop which was built by Messrs Muhammad Afzal Muhammad Irshad has been taken over by the outgoing partner Mr. Muhammad Irshad and that the firm or any other person has no claim against the same."
' It is in the evidence that the site underneath the shop belonged to the Lahore Improvement Trust and after the dissolution of the old firm, at the request of the partners of the reconstituted firm, the Trust transferred the site in the name of Muhammad Irshad alone.
7. In these circumstances before us the learned counsel for the appellant laid a very great stress to contend that the Deed of Partnership dated the 1st of April 1961, not having been registered in accordance with section 17 of the Registration Act, the covenant in clause (3) reproduced above was ineffective and did not operate to transfer the property in the shop from the firm of Messrs Fiaz Brothers in favour of the respondent. As such, according to the learned counsel, the respondent was not proved to be the owner of the shop entitled to receive the rent. He argued that in the circumstances, despite the covenant in the partnership deed dated 1-4-1961, the appellant continued to be the tenant under the firms of Messrs Fiaz Brothers and therefore, the respondent had no locus standi to sue for the ejectment of the appellant.
8. In this connection, the learned counsel for the appellant relied on the reported case of Chitturi Yenkataratham and others v. Siram Subba Rao (1). In that case it was held that though a partner may be a co-owner in the partnership property, he has no right to ask for a share in that property, but only that the partnership business should be wound up, including therein the sale of immovable property, and to ask for his share in the resulting assets. It was further observed in that case that any release by an outgoing partner has the effect of leaving the immovable property in the same state as before the release, namely, as the property belonging to the partnership. From this the learned counsel wanted us to conclude that in the instant case the title in the shop in dispute belonging to the firm of Messrs Fiaz Brothers could not have been released in favour of the respondent as the outgoing partner of the firm, in the absence of a registered document transferring the property to him.
9. We have carefully considered this objection raised before us. It is evident that the respondent was not a party to the deed of partnership dated 1st of April 1961 (Exh. P. 3) executed between the partners of the reconstituted firm. In clause (3) of this deed there is this acknowledgment of a pre- existing state o affairs to the effect that the shop in question was built upon by the two brothers, namely Muhammad Afzsl who continued to be a partner of the reconstituted firm and the outgoing partner, Muhammad Irshad respondent. This admission on the part of all concerned shows that the superstructure of the shop neither belonged to the firm of Messrs Fiaz Brothers nor to any of its other members of the firm. As for the rite under the shop it belonged to the Lahore Improvement Trust and in due course the allotment for it was made by the Trust in favour of the respondent with the agreement of the partners of the firm. In spite of this it appears that the management of the shop appears to have remained with the firm of Messrs Fiaz Brothers and that is why the appellant executed the rent deed dated 4-1-1956 (Exh. P. 4) in favour of the firm. The deed of partnership dated 1st of April 1961, of the reconstituted firm executed between the partners of the new firm, did not require to be registered, It did not even purport to transfer property to the respondent who was not even a party to the document. It merely contained an acknowledgment of a prior settlement between the members of the old firm arrived at on the eve of the departure of the outgoing firm.
The deed of partnership was admissible in evidence to prove the admission made by the partners of the reconstituted firm in favour of the respondent Even otherwise as held in Anwar Sultana and others v. Pakistan Cooperative Society Limited (2) under section 17 read with section 49 of the Registration. Act (as amended) although a document which is compulsorily registrable but is not registered does not create, declare, limit or extinguish the right title or interest in Immovable property of the value of more than Rs, 100 to which it relates. Yet it is admissible and, in our opinion, could be read into the evidence to prove the admission of the members of the partnership of the reconstituted firm. Similarly, in Moosa and others v. Muhammad Yakoob and others (3 it was held that under the amended section 49 of the Registration Act the only penalty is that no document required to be registered shall operate to create, declare, transfer, limit or extinguish whether in present or in future any right, title or interest in any immovable property. The former effect of non registration that it could not be received as evidence of any transaction affecting such property, is no longer the law of this country.
(1) I L R 49 Mad. 738
(2) PLD 1964 Kar. 116
(3) PLD 1966 Kar. 376
10. In clause (3) of deed dated 1-4-1961 of the re-constituted firm, it is admitted that the shop was taken over by the respondent. This shows that, at least, for all practical purposes, the management of this shop was made over to him and he was authorized to receive the rent of the shop. Now section 2 (c) of the Rent Restriction Ordinance, 1959, defines "landlord" to mean any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person. In this manner, therefore, the respondent was relegated to the position of the landlord to sue for ejectment in his own name. This is irrespective of the fact whether or not he was proved to be the sole owner of the shop. In fact In a snit for the ejectment of a tenant it is only the relationship of the landlord had tenant that is relevant and the question of title to the property may arise indirectly only to ascertain the issue bearing on this relationship. In Khalique Ahmed v. Abdul Ghani and another (1) the Supreme Court held that a suit for possession can be brought by all the co-owners jointly. It is, however, open to one of them only to sue for ejectment without joining co-owners. According to Sped Rashid Hussain and 2 others v. Hussain Haji Ahmad (2) under section 13 (3) (a) one of the co-owners, as a landlord could sue for the ejectment of the tenant if he requires it for his own use.
' For the foregoing reasons we find no force in this appeal which is, therefore, dismissed with costs.
(1) L D 1973 SC 214
(2) PLD 1973 Note 138 at p. 209