P L D 1968 Karachi 657 (PLP)

B. A. Sheikh v. Custodian, Evacuee Property P L D 1960 S C 330 distinguished. Pocock v. Carter (1912) 1 Chancery 663; Miles v. Clarke (1953) 1 A E L R 779 and Gian Singh & Co. v. Devraj Nahar and others (1965) 1 A E L R 768 ref. Ishaque Ahmad for Appellant. S. Inayat Ali for Respondent. Date of hearing: 28th February 1968. The material facts in this second appeal are these.

1. There is a plot of land, comprising of sub‑plots bearing Nos. 14, 16 and 17, on L. R. 4, situated at Old Haji Camp toad, Karachi. The respondent was a tenant of this plot. In 1956, the respondent entered into a partnership with the appellant to run a business of motor workshop on a portion of the said plot. It is stated that the respondent's share in the profits of the partnership was fixed at 20 % of the gross‑income. This partnership came to an end with effect from 27th November 1958, and then the appellant was called upon to vacate the portion of the plot which had been used for the partnership business. On the appellant's failure to comply with this demand the respondent brought a suit for the appellant's eviction from the said plot and also for accounts of the partnership business. Later, the plaint was amended and the prayer for accounts was deleted. The Civil Judge decreed the suit for possession, but this decree was reversed in appeal by the Additional District Judge, Karachi. The respondent then came to the High Court in second appeal. The High Court remanded the case to the Additional District Judge with the direction to hear the appeal afresh. It was accordingly done so, and this time the Additional District Judge, by order dated 17‑1‑1966, dismissed the appellant's appeal.

2. The appellant has now come in second appeal with the contention that the plot in question was brought by the respondent into partnership as part of the partnership property, and accordingly the partnership, and on its dissolution the partners, should be deemed to be either assignees of the lease or sub‑lessees of the said plot. No written agreement of partner ship was executed between the parties and therefore it is not possible to ascertain as to what was the intention of the appellant and the respondent with regard to the disputed plot when they entered into partnership in 1956. However, the question remains to be decided whether the plot in question should be treated as partnership property and, accordingly, the respondent as co‑lessee of the plot with the appellant. In my opinion, on the state of the evidence on record, it is not possible to take the view that the disputed plot became part of the partnership property, or that on the dissolution of the partnership, the appellant should be treated as co‑lessee in respect of the said plot. In my judgment in Second Appeal No. 60 of 1966 (Moral Bai v. Abdul Aziz and others), I have discussed at length the question as to whether premises held on lease by a partner, if allowed to be used fox the partnership business, become partnership property. I have reviewed the various decisions in this Judgment, and my con elusion therein was that mere me by a partnership of premises held on lease by one of the partners, would not make the premises part of the partnership property, though they may be an asset to the firm. In the instant case, there being no written agreement of partnership, and the oral agreement, of which evidence has been given in the suit, being confined only to sharing of profits between the partners and allowing the partnership the use of the disputed plot, no further agreement should be implied or inferred with regard to the lease of the plot, which should be treated as being the property only of the partner who brought it into the partnership. The appellant's learned counsel, however, contended that on the basis of the Supreme Court decision in B. A. Sheikh v. Custodian, Evacuee Property (P L D 1960 S C 334), the disputed plot should be deemed to be part of the partnership property. I have examined this decision with great care but in my opinion the rule laid down therein does not apply at all to the present case. What their Lordships decided in this case was that where there is partnership property, no partner can claim a separate share therein before the division of the partnership assets according to the provisions of the Partnership Act, 1932. The case is silent on the question as to when a property, originally belonging to a partner, could or should be deemed to be part of the partnership property. Mr. Ishaq Ahmad then referred to the English decision Pocock v. Carter ((1912) 1 Chancery 663). In this case, the partnership deed declared the premises, where the partnership business was carried on, to be the property of one partner and there was no provision in the deed with regard to the tenancy of the partnership, but provision writs made that rent of the pramises shall be paid out of the profits of the firm. It was held that the Court will infer that the partnership was intended to hold the premises on a tenancy during the continuance of the partnership and not from year to year or at will. But the later decisions of the English Courts are in accord with the view which I have taken in my judgment in Second Appeal No. 242 of 1965. I would in this connection refer to the decision of the Chancery Division in Miles v. Clarke ((1953) 1 A E L R 779) and to the decision of the Judicial Committee of the Privy Council in Gian Singh & Co. v. Devraj Nahar and others ((1965) I A E L R 768). Even Pocock v. Carter does not really help the appellant, because the decision in this case was that the partnership could be deemed to be the tenant of the premises only during the continuance of the firm, and not to hold the premises on tenancy from year to year or at will. Thus, as soon as they partnership is dissolved, the tenancy of the partnership came to an end by operation of law and thereafter the partners, other than the partner by whom the premises are held on lease, remain on the premises only as licencees or trespassers. According to Pocock v. Carter also, the appellant cannot be said, after the dissolution of his partnership with the respondent, to have any interest in the disputed plot as sub‑lessee, or co lessee of the respondent. In view of this conclusion, this appeal must fail and is accordingly dismissed with costs. A. E. Appeal dismissed.