2004 PLP 126 (SCMR)

Laws Cited

Representation

• Basharatullah, Senior Advocate Supreme Court and Mehta W.N. Kohli, Advocate-on-Record (absent) for Petitioner.
• Jamal Khan Mandokhail, Advocate Supreme Court and Mir Aurangzaib, Advocate-on-Record for Respondent.
• Date of hearing: 18th September, 2003.
• 4. It is vehemently urged by Mr. Basharatullah, learned Senior Advocate Supreme Court on behalf of petitioner that factum of partition could not be proved by the respondent-landlord by adducing cogent and concrete evidence which aspect of the matter has been ignored by the learned Single Judge of High Court of Balochistan which resulted in serious miscarriage of justice as the property in question was not devolved either upon the respondent-landlord or other co-owners. It is also contended that the family settlement/agreement (Exh.A/1) was not got registered hence it has no legal sanctity whatsoever and even it cannot be looked into for collateral purposes. It is argued that the document (Exh.A/1) being unregistered does not confer any right or title to the respondent-landlord and thus no eviction application could have been filed by him. In order to substantiate the above mentioned contentions reliance has been placed on cases titled Kora Mal v. Pazal Ali AIR 1934 Lahore 759, Velusami v. Velusami AIR 1962 Madras 153, Sher Ali Khan v. Zarnaush 1994 MLD 2458, Abdul Jelani v. Mst. Janat Bibi 1999 MLD 3331. Mr. Basharatullah learned Senior Advocate Supreme Court has taken serious exception to the non-registration of the partition deed (Exh.A/1).
• 5. We have carefully examined the contentions as agitated on behalf of -petitioner in the light of relevant provisions of law and record of the case. We have perused the judgment dated 27-9-2000 passed by learned Rent Controller, Quetta as well as the judgment impugned. We have thoroughly scanned the entire evidence which has come on record. We are not persuaded to agree with Mr. Basharatullah, learned Senior Advocate Supreme Court that the partition of property by way of family arrangement by means of settlement/agreement (Exh.A/1) dated 19-4-2000 is compulsorily registrable and in absence of registration the ownership could not have been devolved upon the respondent-landlord and eviction application could not have been filed by him having no A locus standi simply for the reason that such family settlement is saved from inadmissibility in evidence due to the elimination of sub-clause (c) from section 49 of the Registration Act and the prohibition contained in section 49 would no longer be operative. A careful perusal of partition document (Exh.A/1) executed between the parties would reveal that the property has been distributed by way of family arrangements. If the parties are not interested in partition of property on permanent transfer basis they cannot be forced or compelled to do so as it depends upon their whims and wishes to distribute the property in any manner as may be deemed fit and proper being their personal and family affair. In such an eventuality the question of registration of such agreement, does not arise. If any authority is required reference can be made to case titled Jahanzeb and others v. Muhammad Abbas 1999 SCMR 2182.
• 6. We have also adverted to the second limb of the argument as I advanced by Mr. Basharatullah learned Senior Advocate Supreme Court on behalf of petitioner that in absence of registration of agreement (Exh.A/1) the respondent-landlord has no locus standi to file the eviction application which appears to be without any substance because ejectment "C application can be moved by one landlord and it is not essential for him to obtain permission in writing from his co-landlord-co-owners as he has locus standi to file ejectment application alone being co-owner. In this regard we are fortified by the dictum laid down in case titled Khalique Ahmed v. Abdul Ghani PLD 1973 SC 214. It is not the case of Mr. Basharatullah, learned Senior Advocate Supreme Court that respondent landlord is a stranger having no concern whatsoever with the ancestral property which admittedly devolves upon all the legal heirs and respondent-landlord is one of them. It is worth mentioning here at this the question of title has no relevancy in the proceedings in as the pivotal point needs determination would be the relationship of landlord and tenant which would be the only determining factor because a tenant has absolutely no legal right to raise any objection regarding the partition of property or the manner in which it was so made as it would have no substantial effect on the factum of his tenancy and his status would remain as tenant. The provisions as contained in section 12(2) of the West Pakistan General Clauses Act, 1956 also provides that the term 'landlord' also covers a case where several persons are jointly owners or landlords within the meaning of the definition of landlord. If any authority is required reference can be made to case titled Nek Muhammad v. Muhammad Shafi 1983 SCMR 180. There is no cavil with the proposition that anyone of the co-sharer of the property can file ejectment application against the tenant and similarly any co-owner can also file such application. Ghulam Rasul v. Bakhtawar 1981 SCMR 193.
• 7. The question as to whether the shop in question is required by the respondent-landlord for personal bona fide need, requires determination and this case has rightly been remanded to the learned Rent Controller for doing the needful. The authorities cited by Mr. Basharatulah, Senior Advocate Supreme Court being distinguishable are not applicable in this case. The judgment impugned being well based and unexceptionable hardly warrants any interference. The petition being merit less-is dismissed and leave refused.

Headnotes / Summary

Judgment & Decree