2002 PLP 434 (MLD)

The present S. A. O. No. 117 of 2000 as also S. A. O. Nos. 118 and 119 of 2000, are being disposed of together as common questions of law and facts are involved in all these cases.

2. Briefly stated the facts of the case are that the respondents filed ,an ejectment application against the appellants from the shop in dispute, inter alia on the grounds of default and personal need. This application was resisted by the appellants. However, they admitted the tenancy, but during the tendency of the ejectment petition, the appellants took up the position that they have purchased a share of the demised premises from the co-owners of the property' through various sale deeds thus, relationship of landlord and tenant has ceased to exist and, therefore, they cannot be ejected in pursuance of the Punjab Urban Rent Restriction Ordinance. Amended written statement was filed taking up the above position. However, the learned Rent Controller vide impugned order, dated 10-11-1999, discarded this plea of the appellants and passed the ejectment order. Aggrieved, the appellants filed an appeal, which has been dismissed vide order, dated 12-5-2000.

3. Learned counsel for the appellants contended that the demised premises are admittedly co-owned by about eighty persons. The appellants have purchased the share of some of the co-owners through various sale-deeds, thus on account of above, the relationship of landlord and tenant between the parties ceased to exist. Status of the appellants in the premises in question now is not that of a tenant, but of a co-sharer and a co-owner cannot be evicted from the portion in his possession otherwise then resorting to the partition proceedings. Besides, the appellants have already filed a partition suit against the other co-owners of the property, including the present respondents, which is pending and in the light of these proceedings, no ejectment order can be either passed or executed against the appellants. In support of his contentions, the learned counsel for the appellants has relied upon the following judgments:-- Ghulam Mustafa and another v. Mst. Muhammadi Begum and another (1990 CLC 246); Tajamal Hussain v. Syed Ibrar Hussain (deceased) (1992 ALD 420); Muhammad Nawaz and 2 others v. Sh. Abdul Latif and another (1971 SCMR 198); Dr. Arslan Razzaq v. Ali Hussain (PLD 1993 Lahore 97); and Umar Hayat Khan v. Inayatullah Butt and others (1994 SCMR 572).

4. Conversely, the learned counsel for the respondent by drawing support from the judgments reported as:-- "Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCMR 913); Ghulam Mustafa and others v. Mst. Muhammadi Begum and others (1991 SCMR 432); Ghulam Mustafa and another v. Mst. Muhammadi Begum and another (1990 CLC 246); Dr. Muhammad Siddique v. Additional District Judge Faisalabad and 3 others (1990 CLC 1156). has argued, admittedly a tenant of the rented property even after acquiring a share from a co-owner, does not cease to be a tenant and an ejectment petition can be competently filed against him.

5. I have heard the learned counsel for the parties. If a person at the very inception acquires possession of an immovable property as a co-owner, obviously according to the general principles of civil law, he cannot be dispossessed from such premises without proper partition proceedings and a decree/order of a competent Court in that regard. But where a person enters upon the premises as a tenant under one of the co- sharers of the property, he continues to be a tenant till such time either the tenancy is terminated by an expressed agreement between the landlord and tenant or he surrenders the possession. However, if during the subsistence of tenancy, a tenant purchases a share from a co-owner, his status as a tenant does not cease to exist. This is particular in a ;: situation where the ejectment proceedings are already initiated against a tenant, but with an object to circumvent such proceedings, the tenant acquires a share in the property from a co-owner. The judgments cited by the learned counsel for the appellants are on the general principles about the dispossession of a co-sharer of the property and does not cover the proposition, where a person enters upon the property as a tenant and without the termination of tenancy or surrendering the possession to his landlord, acquires a share in the same. The judgments cited by the learned counsel for the respondents are more apt to the proposition in hand, specially the issue has been authoritatively resolved in the case reported as 1989 SCMR page

913. The relevant paragraph reads as follows:-- "The contention of the learned counsel that the petitioner having become an owner in the suit property could not be proceeded against under the Rent Restriction Ordinance has no merits. Admittedly, the alleged sale transaction of a certain share m the suit property took place during the tendency of the ejectment proceedings. The Rent Controller who was exercising a limited jurisdiction under the Rent Restriction Ordinance could not adjudicate upon the ownership rights of the parties. The petitioner is, therefore, at liberty to seek his remedy in the Civil Court as observed by the learned Judge in his Chambers. " The above judgment has been affirmed in 1991 SCMR Page

432. Moreover, in 1990 CLC 246, it has been held that a tenant notwithstanding the purchase by him of a certain share from the disputed property, could neither challenge the status of the landlord or landlady qua the suit property or the existence of relationship of landlord and tenant can be denied by him. The aforementioned law clearly propounds ' that till such time, the tenancy stands terminated mutually by the landlord and a tenant or the possession of the property is surrendered by the tenant, which he took at the inception under a tenancy relationship, he cannot resist an ejectment application on the ground that during the tendency of the- ejectment proceedings, he has acquired a share from a co-sharer, therefore, no exception can be taken to the view formed by the learned Courts below.

6. As regards the other submission of the learned counsel for the appellants that ejectment application filed by the respondents and the suit for partition brought by the appellants should have been decided together by the same Court in order to avoid a ludicrous situation. Suffice it to say that the appellants never applied to any of the forums below for the hearing of the two matters together. Moreover, this is not one of the grounds taken by the appellants in the present appeal as well. The stage for the decision of the ejectment application against the appellants and the suit brought by them for partition of property together, has passed, therefore, on this plea alone, the orders of 'ejectment passed against the appellants, cannot be set aside. In the light of above, there is no legal or factual infirmity, in the orders impugned. Resultantly these appeals have no force and are hereby dismissed. However, the appellants are given four months time from today to vacate and hand over the vacant possession of the demised premises to the respondents. No order as to costs. S.A.K./M.A.K./M-859/L Appeals dismissed.