2026 PLP 717 (SCMR)

SHAHID BILAL HASSAN, J.

Facts, in precision, are as such that respondents Nos. 1 to 7 instituted a suit for recovery of produce and ejectment against the present petitioners, before the DDO(R)/AAC(R), Peshawar. The petitioners contested the suit by filing written statement. After framing of issues and recording of evidence from both sides, the learned trial Court vide judgment and decree dated 10.07.2013 decreed the suit in favour of the respondents Nos. 1 to

7. Being aggrieved, the petitioners filed an appeal before the learned Additional Deputy Commissioner, Peshawar, which was dismissed vide order dated 15.04.2014. Thereafter, a revision petition was filed before the learned Additional Commissioner, Peshawar, which too was dismissed. Subsequently, the petitioners filed a second revision petition before the learned Senior Member, Board of Revenue, Khyber Pakhtunkhwa, which was also dismissed vide order dated 16.12.2016. Thereafter, the petitioners invoked constitutional jurisdiction of the Peshawar High Court by filing W.P. No.2672-P/2017, which was dismissed vide judgment dated 19.10.2018. Hence, the present Civil Petition for Leave to Appeal.

2. We have heard learned counsel for the parties and have gone through the record with their able assistance.

3. The questions that require determination by this Court are whether a tenant, who subsequently asserts acquisition of certain ownership rights in part of the demised premises, is obliged to first surrender possession as tenant and thereafter litigate his alleged proprietary claim; and secondly, whether ejectment proceedings remain maintainable if such tenant continues to retain possession without vacating the premises.

4. Adverting to the abovementioned proposition, it is by now a settled proposition of law that where a person enters into possession as a tenant, he is estopped from disputing the title of the landlord so long as he continues to retain possession under the tenancy. The principle of estoppel is embodied in Article 1151 of the Qanun-e-Shahadat Order, 1984, which debars a tenant from denying the title of the landlord during the continuance of tenancy. The doctrine is founded upon public policy and is intended to preserve sanctity of contractual relationships and to prevent a tenant from approbating and reprobating simultaneously. In this regard, this Court in Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 Supreme Court 45) has authoritatively held: It is also settled proposition of law that once a person acknowledges himself to be a tenant of a landlord, the principle of estoppel as enunciated in Article 115 of Qanun-e-Shahadat Order would come into play, debarring such tenant to deny the title of his landlord. The Court further clarified that mere assertion of ownership on the basis of an agreement to sell does not defeat the maintainability of ejectment proceedings, holding: It is settled law that till the time tenant was able to establish his claim for specific performance on the basis of alleged sale agreement, the landlord would continue to enjoy the status of being owner or landlord of the premises and the relationship between the parties till such time would be regulated by the terms of tenancy and the tenant cannot legitimately resist the maintainability of ejectment proceedings pending against him on the ground of sale agreement. The above pronouncement leaves no room of doubt that unless and until the tenant establishes his alleged proprietary rights before a competent forum, the relationship between the parties continues to be regulated by tenancy law and the tenant remains bound by the incidents of tenancy. Furthermore, this Court has repeatedly held that if a tenant disputes the proprietary title of the landlord, he must first vacate and surrender possession, and only thereafter may contest title. In Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs. (2006 SCMR 1068), it has been held in unequivocal terms: Even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences. Thus, the first proposition is answered in the affirmative: a tenant who disputes the landlord s title or claims ownership is obliged to first surrender possession, as the law does not permit a tenant to retain possession under tenancy while simultaneously setting up hostile title against the landlord.

5. So far as the second question involved in this case as to maintainability of ejectment proceedings is concerned, the consistent view of this Court is that even if the tenant asserts acquisition of ownership rights by purchase of a share in the property, such assertion by itself does not render ejectment proceedings incompetent, particularly because the Rent Controller exercises a limited jurisdiction and cannot adjudicate upon complicated questions of title. In Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCMR 913), this Court held: In view of this clear and categorical admission, the petitioner, notwithstanding the purchase by him of a certain share from the disputed property, could neither challenge the status of the respondent as landlady qua the suit property nor the existence of relationship of landlord and tenant between the parties. Therefore, under no circumstances the petition for ejectment of the petitioner could be said to be incompetent and the Courts below were justified in holding so. The Court further held that the plea of ownership could not be examined by the Rent Controller: The Rent Controller who was exercising a limited jurisdiction under the Rent Restriction Ordinance could not adjudicate upon the ownership rights of the parties. Similarly, in Ghulam Mustafa and others v. Mst. Muhammadi Begum and others (1991 SCMR 432), this Court held: In the circumstances of the case, the ejectment cannot be refused on account of purchase of a share by the petitioner as qua the shop in dispute, the position of the petitioner is that of a tenant. The Court then identified the correct legal remedy available to such tenant, holding: The petitioner will, however, be at liberty to seek partition of the joint property by filing a suit for partition The above dictum is of decisive significance, even where a tenant claims to have acquired a share in ownership, the tenancy does not automatically dissolve so as to defeat ejectment proceedings, rather, the proper course available to such tenant is to seek his proprietary remedy through a civil suit for partition, and not to resist ejectment proceedings by raising disputed questions of title within the limited jurisdiction of the Rent Controller.

6. Additionally, in Muhammad Nazir v. Saeed Subhani (2002 SCMR 1540), this Court held that mere filing of a suit for specific performance does not convert the legal character of possession, observing: under the said agreement of sale the petitioner continued to retain the status of tenant and his possession was not agreed to be converted into one in part performance thereof. Likewise, in Waheed Ullah v. Mst. Rehana Nasim and others (2004 SCMR 1568), it was held: After considering the defence plea raised in the written statement, the Rent Controller came to the conclusion that it was not a case of denial of existence of relationship of landlord and tenant between the parties, for if there was an oral agreement of sale, the petitioner should first establish the same before the proper forum. and further: Till such time the Court of competent jurisdiction decides about the existence of such agreement of sale, the same could not be made the basis for denying the right of the landlord

7. In view of the above authoritative pronouncements, the legal position stands settled that: i. A tenant who subsequently asserts acquisition of ownership rights is bound by estoppel under Article 115 of the Qanun-e-Shahadat Order, 1984, and cannot deny the landlord s title while continuing in possession as tenant. If he intends to contest proprietary title, he must first surrender possession and thereafter seek adjudication of his claim. ii. An ejectment petition against such tenant remains maintainable, since the mere assertion or alleged acquisition of ownership rights does not terminate the tenancy nor does it oust the jurisdiction of the Rent Controller. iii. Where the tenant claims to have purchased a share or acquired co-ownership, the proper remedy is not to resist ejectment proceedings but to seek recourse through a civil suit for partition. Pursuant to the above, we hold that a tenant, notwithstanding any subsequent claim of ownership, cannot retain possession as tenant and simultaneously deny the landlord s title, as such conduct is barred by Article 115 of the Qanun-e-Shahadat Order, 1984, referred to above. The tenant must first surrender possession before contesting title. Consequently, ejectment proceedings against such tenant remain maintainable. In case the tenant claims co-ownership by purchase of a share, his proper recourse lies in seeking partition through a competent civil forum and not in resisting ejectment proceedings within the limited jurisdiction of the Rent Controller.

8. The crux of the discussion and reasons above is that the learned High Court has rightly and correctly adjudged the matter in hand while construing law on the subject in a judicious manner and has not committed any illegality, warranting interference by this Court. The petition in hand is devoid of merits and is, therefore, dismissed. Leave to appeal is refused. CMA No.1877-P of 2018

9. Since the main Petition has been decided, the instant petition has become infructuous and the same is disposed of, accordingly. UN/N-3/SC Petition dismissed. 1

115. Estoppel of tenant and of licensee of person in possession: No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord or such tenant had, at the beginning of the tenancy, a title of such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a title of such possession at the time when such license was given.