2000SCMR 145 (PLP)

NASIR ASLAM ZAHID, J.

This petition has been filed by petitioners/plaintiffs Paind Khan, son, and Mst. Zar Bibi, daughter, of Adam Khan against the judgment of the High Court of Balochistan, dated 14-7-1998 whereby the revision filed by respondent No. l Jehandad Khan (real brother of the petitioners) was allowed. We have heard Syed Ayyaz Zahoor, learned Advocate Supreme Court for the petitioners and Mrs. Ashraf Abbas, learned Advocate-on-Record for the respondents, Jehandad Khan, who has appeared on caveat. We have referred to relevant record.

2. The dispute relates to Shop No.30 (old No.24) in Baldia Shopping Plaza, Quetta. It is an admitted position that the said shop initially was leased out to Adam Khan, father of the petitioners and respondent No. 1, by Quetta Municipal Corporation (respondent No.8 herein). Shop No.30 is situated in the new building, previously an old building was constructed in which Shop No.24 was on lease with the father of the petitioners and respondent No.

1. The old building was demolished and Baldia Shopping Plaza was constructed and the old occupants/allottees were given the rights to retain shops in lieu of their said shops and as a result Shop No.30 in Baldia Shopping Plaza was allotted in the name of Adam Khan. After the death of Adam Khan, respondent No. l got the allotment/lease continued in the name of Adam Khan but, according to the petitioners, later on he got the lease executed in his exclusive name thereby depriving the petitioners and other legal heirs of deceased Adam Khan of their rights in the said shop. For enforcement of their rights, petitioners filed a suit which was decreed; appeal filed by the respondent No. 1 against the decree of the trial Court was dismissed, but the revision filed by him has been allowed by the High Court and the concurrent findings of the two Courts below have been set aside and, as a result, suit of the petitioner stood dismissed.

3. Learned counsel for the petitioners referred to ; the following order/finding of the High Court: "In view of the above analysis by the learned Commentator (Code of Muslim Personal Law, Volume--II by Dr. Tanzilur Rehman) there is no necessity to further discuss this aspect of the case, except holding that as far as leasehold rights are concerned, those are not covered by the definition of 'Estate' as such, being so, are not heritable, by the legal heirs of deceased. " Learned counsel contends that in Pakistan, specially in urban areas including Quetta, One recognized mode of creating rights in immovable property is through lease and, on death of a Muslim owner, leasehold rights vest in such asset get transferred to the legal heirs according to law of inheritance and that the principle of law enunciated by the High Court is likely to affect adversely a very large number of people who inherit property on the death of their, predecessor.

4. In our view 'a case for grant of leave is made out to consider whether the High Court is correct in holding that leasehold rights in immovable property are not heritable and do not devolve on the legal heirs of a deceased who held such leasehold rights. Leave is accordingly granted. According to learned counsel for the petitioners, respondent No. 1 alone is receiving about Rs.6,000 per month from the tenant to whom the said shop had been rented out by respondent No. l and the petitioners and other legal heirs of Adam Khan are being deprived of their rights in the said shop. Till further orders of this Court, the tenant is directed to deposit the rent with effect from October, 1999, onwards with the Trial Court i.e. Civil Judge-IV, Quetta. M. B. A. /P-54-/S Leave granted.