' This is an appeal against the order of ejectment of the appellants passed by the learned Additional District Judge, Rawalpindi on 16th February 1972 from a portion of House No, B-266, Nia Mohallah, Rawalpindi.
2. The undisputed facts are that the house in dispute along with some other property was owned by Sahib Ditta Mal and after his death there was some dispute between his legal heirs. Ultimately it was decided that Mst. Allah Rakhi, one of the legal heirs was entitled to 1/8th of the property in dispute. Mst. Allah Rakhi transferred by sale the house in dispute on the 4th of March 1967 to Ghulam Rasul respondent. The respondent served a notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the 22nd October 1967 on the two appellants. He filed a petition for their ejectment on 27-1-1968 on the ground of default for a period of more than 10 months from the date of the purchase of the house.
3. The appellants admitted that the property in dispute was owned to the extent of 1/8th share by Mst. Allah Rakhi ; that they had received a notice under section 13-A and that they had never paid any rent. They contended that the house in dispute had been given to them by Sahib Ditta Mal the original owner and that their father had been residing in it for the last 50/60 years without paying any rent. The learned Rent Controller framed the following issues :-
(1) Whether relationship of landlord and tenant exists between the parties ? 0. P. A.
(2) Whether the petitioner has got no locus' standi for the present petition ?
4. He answered both the issues against the respondent and dismissed his application for ejectment. The learned Additional District Judge however allowed the appeal. He held that whether Mst. Allah Rakhi was owner of 1/8th share or more or whether she could sell the entire house to the respondents was not a matter which could be gone into in these proceedings nor could the appellants raise an objection about it. He did not give any finding on the question of relationship of landlord and tenant but gave a finding in favour of the respondent only on the ground that even if they did not pay the rent to the previous owner, they were bound to pay it to the respondent.
5. So far as the first point is concerned, on that there can be no two opinions. It is established that even if Mst. Allah Rakhi was the owner of 1/8th of the property and consequently the respondent was also owner to the same extent, the application for ejectment would be competent at the instance of one of the co-owners since it is based upon the ground of default in the payment of rent.
6. This appeal is however liable to be accepted on the ground that the learned Additional District Judge has passed the order of ejectment without determining whether the relationship of landlord and tenant did exist between the parties. His finding that though the appellants may not have paid any rent to Sahib Ditta Mal, they would still be liable to pay rent to transferee of the house, cannot be sustained unless it is found out that appellants were tenants under Sahib Ditta Mal or Mst, Allah Rakhi, For this purpose the evidence of the parties is to be appraised. Only P. W. 2 has appeared on behalf of the respondent to prove the tenancy of the appellants under Mst. Allah Rakhi. The other two witnesses have made a statement that the appellants had paid two or three months' rent to the respondent which is contrary to the pleadings of the respondent and no reliance can be placed upon it.
7. On the other hand there is evidence on behalf of the appellants that their father held a power of attorney for management of the property of Sahib Ditta Mal and they and their father had been living in the house as a licensee of the owner: In order to arrive at a conclusion it is necessary to appraise this evidence and to find out as to which particular witness should be believed. This is, therefore, a fit case for remand. I allow this appeal, set aside the order of the learned Additional District Judge and remand the case to the learned District Judge Rawalpindi to decide this appeal afresh in accordance with the law.