1991 PLP 432 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑Nearly a quarter of century has gone by when the respondent landlady filed ejectment application against the petitioners on 12‑10‑1976 on the ground that the shop in question was required for reconstruction alongwith main property for which building plan had already been got sanctioned from the Municipal Corporation. During the pendency of the proceedings, the petitioner No.1 filed an application on 3‑7‑1979 saying that he had purchased 1/4th share from a joint owner of the property on 8‑4‑1979 and sought permission to produce and prove the sale‑deed so as to advance the plea that the ejectment application was liable to be dismissed as he had become a co‑owner of the building. Another application was moved on 6‑1‑1980 requesting for the disposal of the first application. Both the applications were dismissed on 23‑1‑1980. The petitioner then moved another application on 19‑4‑1980 seeking permission to amend the written reply to the ejectment application so as to incorporate the plea that because of the purchase through two sale deeds, the ejectment application was liable to be dismissed for want of jurisdiction. This application was also dismissed by the learned Rent Controller vide order dated 19‑4‑1980 observing "that the purchase of the property had not affected in any manner the relationship of tenancy between the parties." The application for ejectment was, however, dismissed by the Rent Controller as he was of the view that on the ground of additions and alterations, eviction of shop could not be ordered. The order was set aside on appeal by an Additional District Judge, Lahore vide order dated 3‑9‑1981. The petitioner filed Writ Petition No. 5177 of 1981 in the Lahore High Court. It was allowed and case remanded for fresh decision vide order dated .11‑11‑1982 to the appellate authority. In pursuance thereof the matter came up before the learned District Judge, Lahore who vide order dated 27‑3‑1983 again accepted the respondents' appeal and directed the eviction of the petitioners.

2. The petitioners filed Constitutional Petition bearing Writ Petition No.1712 of 1983 in the Lahore High Court.

4. After hearing the learned counsel for the parties and dealing with each point urged in a very detailed order, the learned Single Judge dismissed the petition vide order announced on 30‑10‑1989 with the observation that: "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 4 the petitioner is that of a tenant. The petitioner will, however, be at liberty to seek partition of the joint property by filing a suit for partition with the further right to raise all the pleas available to him under law." Hence this petition.

5. Learned counsel for the petitioners submitted that the petitioner No.1 having purchased 1/4th share in the property, he had become co‑owner and as such no ejectment proceedings could commence unless the property was divided by meets and bounds which has not been done. He referred to certain precedents including the ones he had cited before the learned Single Judge and which have been dealt with and distinguished by the learned Judge in the order under challenge. He tried to distinguish Nazir Ahmad v. Mst. Sardar Bibi and others, (1989 SCMR 913) on which reliance was placed by the learned Single Judge, by submitting that in that case "tenancy" was admitted but not in this case. The plea of relationship of landlord and tenant was taken note of by the learned Single Judge and he made the following observations: "The plea that the petitioner is not a tenant of the respondent and that finding to this effect returned by the Appellate Court is illegal is without merit. This plea in this second round of litigation is otherwise not available to the petitioner. In the first round, the plea as is apparent from para 20 of the judgment in earlier petition (W.P. 5177/81) was that `the appellate authority despite to fact that the question of sale and its effect, on the tenancy was raised before him, failed to determine the said question and as such, has acted illegally in accepting the appeal':' The learned Judge further observed that "it was because of the abovenoted plea that this Court made the observation as under:‑‑ "The appellate authority in these circumstances before setting aside the said order was called upon to go into the question and to determine its effect if any, on the relationship of tenancy otherwise brought into existence through the rent deed executed by the petitioner ... ... ... ... ... ... ... ... ... ... ... ....In the circumstance of this case, the Rent Controller as well as the appellate authority were duty bound to consider the effect of the purchase on the relationship of, tenancy otherwise existing between the parties." It was further observed that: "It is apparent that plea of non‑existence of relationship of tenancy was not pressed in the first round of litigation in view of the admission of the petitioner contained in the statement before framing of issues to the effect that he had executed the rent deed and was paying rent to the landlady. The Appellate Court in its judgment made specific mention of this admission. Even a reference to the contents of the written reply to the ejectment petition would show that the payment of rent to the landlady stands acknowledged. For all these reasons, it is idle to contend that relationship of landlord and tenant did not exist between the parties. The plea of the learned counsel in this respect being without basis is hereby repelled." So, the very basis of distinction of the precedent case of this Court in Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCMR 913) is knocked down.

6. The case of the petitioner squarely falls within the ambit of the law declared by this Court in the said authority. There is no justification to allow the petitioner to hang on the property from which he was sought to be ejected through application dated 12‑10‑1976, and which application has been allowed. by the competent appellate authority and the order after full hearing has been upheld.

7. The petition is, therefore, dismissed. A.A./G‑281/S Petition dismissed.