1996 PLP 137 (CLC)

9. It is evident from the record that the plea of private partition though incorporated in the lease agreement yet was not accepted by the Revenue Authorities. The learned counsel for the petitioner during arguments submitted that mutation of lease was also entered in the record but was not sanctioned for the reason that the Revenue Authorities refused to give their blessings to the alleged private partition. They treated the Khata as joint. This is clear from the copies of the Jamabandis on record‑where Syed Ahmad or his heirs have not been treated as exclusive owners of the land in dispute. The conduct of respondent No. 1 is also against the partition of the joint Khata because whenever she sold the land she sold from the entire Khata and not specific share in the land in dispute and when she acquired land it was again in terms of joint Khata. Therefore, there is no difficulty in holding that it is the joint Khata. This completes the factual controversy.

10. Now coming to the legal aspect whether ejectment petition was competent against the petitioner, who had become co‑owner in the land? I have already concluded while dealing with the second question that the landlady was not owner of the entire area of 8 Kanals as per documents placed on the record by herself. It may be added here, at the cost of slight repetition, that this exercise was done assuming that the area of 8 Kanals, subject‑matter of the lease, was an independent entity/Khata. The landlady having failed to prove ownership over the whole piece of land and on the other hand the petitioner has successfully proved that he has become co‑owner at least to the extent of 2 Kanals 14‑1/2 Marlas having purchased from respondent No.

1. Therefore, respondent No. 1 who is owner of part of the land in dispute cannot maintain the ejectment petition against the petitioner who is a co‑owner. The petitioner is co‑owner of each inch of the land and covered by the definition of `landlord' as given in the Urban Rent Restriction Ordinance. Therefore, the Rent Controller has no jurisdiction in the matter.

11. The learned counsel for the petitioner in support of the argument that ejectment petition is not maintainable against a co‑sharer has referred to the cases reported as Muhammad Nawaz v. Abdul Latif (1971 SCMR 198), Muhammad Bakhsh v. Khuda Bakhsh (1993 MLD 937), Ishar‑ul‑Hassan Rizvi v. Abdul Rahman (1992 SCMR 1352), Shaukat Javed v. Abdul Khalid (1991 SCMR 215). First in the series is the case of Muhammad Nawaz wherein it was held as under:‑‑ "**** In law, a co‑sharer in possession of a joint property cannot be evicted without filing a suit for partition. In these circumstances, the High Court was perfectly justified in observing that the Courts below have failed to exercise the discretion vested in them." While in the case of Izhar‑ul‑Hassan Rizvi (supra) it was held as under:‑‑ "Unfortunately it was not pointed out that section 116 of the Evidence Act which embodied the doctrine of estoppel was not exhaustive and that the tenant could plead that his landlord's title had come to an end or been extinguished subsequent to the commencement of his tenancy. If any authorities are required for this view, Kumar Kirishana Prosade Deo Lal Singha v. Arash Bibi (1985 CLC 1701) may be referred. In these circumstances, it would appear that the appellant, since he is in possession, cannot be evicted unless in the partition suit filed by him it is finally decided that he has no claim to the disputed shop." The above principle for ejectment not competent against a co‑sharer was followed by this Court in the case of Muhammad Bakhsh (supra). The case in hand is even weaker than this case as the landlady is owner only of a part.

12. The learned counsel for respondent No. 1 on the other hand have referred to the cases noted above alongwith their arguments. The rule deduced in these cases is not applicable to the case in hand as the facts are clearly distinguishable: (i) In the case of Ali Muhammad v. Shera (supra) the appellant had purchased specific Killa Numbers and subsequently contention was raised that as the Khata was not partitioned, therefore, it would be a sale of unspecified share so as to make him co‑sharer in the Khata but it was not accepted. This is not the case here. (ii) The case reported as Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1) does not advance the argument of the learned counsel for the respondent No.

1. It was held with reference to the case reported as Makhan Bano v. Haji Abdul Ghani (PLD 1984 SC 17) and Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) that the rule of estoppel vis‑a‑vis a tenant and landlord cannot have universal application to the cases arising under the Punjab Urban Rent Restriction Ordinance. The relevant portion of the judgment reads as under:‑‑ "In this case it is to be observed that the rule of estoppel (and forfeiture) would not apply also because the denial by the appellants is not regarding the title of the respondent vis‑a‑vis `the beginning of the tenancy' even if it is assumed to have existed before the transfer orders were passed in 1962 and also in 1979 in favour of the School. The denial is regarding the change of position by the said transfer. The principle and the rule embodied in section 116, Evidence Act is not attracted in all cases of dispute over title between landlord and tenant. One exception as in this case is the denial vis‑a‑vis a stage after `the beginning of the tenancy'. Another condition is that the denial should be during the continuance of the tenancy and not after the determination thereof. Moreover, it should be of the landlord who `let the tenant in' and not of any other person." While the relevant portion of the judgment in the case of Makhan Bano (supra) reads as under:‑‑ "**** So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies the premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevant for the purpose of granting or refusing him an equitable' discretionary relief when such denial is coupled with a manifest breach of his statutory duties as provided under the Ordinance. Reliance is placed for this on Amanullah Khan v. Chhotey Khan (1978 SCMR 14), Muhammad Shah Alam v. Muhammad Abdul Ghafoor (1979. SCMR 443) and Muhammad Yusuf v. Asghar Hussain (1980 SCMR 886)." (iii) In the case of Muhammad Ibrahim (supra) it was held that a person occupying the land under private partition shall be considered ostensible owner of the land. It does not help the respondent as discussed above. (iv) In the case reported as Iqbal and,6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242) the tenant has not yet become owner and the suit for specific performance was still under adjudication. This case, therefore, is not relevant to the present controversy. (v) In the case of Nazir Ahmad (supra) the denial was not outright and was raised at the subsequent stage. (vi) The case of Ghulam Mustafa v. Muhammadi Begum (1991 SCMR 432) was decided on the basis of the rule laid down in the case of Nazir Ahmad v. Sardar Bibi (1989 SCMR 913). The plea of non‑existence of relationship of tenancy was not pressed in the first round of litigation. (vii) In the case of Muhammad 1drees (supra) again the issue of relationship was not raised at the earlier stage. The result was that there was no adjudication by the Courts below whereas in the case in hand the issue was raised on the very first day. (viii) The case of Muhammad Hussain (supra) has been referred in support of the argument that where a house‑or similar structure is built on the land then it does not remain part of the estate. This was a pre‑emption case. The purpose of citing this judgment seems to be that since on the land in dispute service station has been constructed, therefore, it has ceased to be a part of the joint Khata. This again does not help due to facts noted above. Moreover, it was held that a person who converted the only piece of land into a building then he walks out of the estate, therefore, no more owner of any part of the estate and cannot claim superior right of pre‑emption. This is not the case in hand. (ix) In the case of Raja Khizar Hayat (supra) again the land on the basis of which the pre‑emption suit was filed has lost the agriculture character, therefore, the pre‑emptor could not claim to be owner in the estate.

13. The learned counsel for respondent No. 1 in support of the argument that while deciding the Constitutional petition this Court should not reappraise the evidence like the Appellate Court. In this behalf the learned counsel has referred to the cases reported as Muhammad Zafar Iqbal v. Mst. Parveen Akhtar (NLR 1992 Civil 522) and Qasim v. IVth Senior Civil Judge and Rent Controller (East), Karachi (1993 MLD 1846). In the case reported as Noor alias Noor Muhammad v. Manager of His Highness, The Mir of Khairpur (1992 SCMR 1931) it was held that where the petitioner has made factual assertion, it was not a fit case for interference in Constitutional jurisdiction. While in the case of Muhammad Sharif v. Muhammad Afzal (PLD 1981 SC 246) it was argued that scope for interference is very limited. Mere fact that another conclusion being possible on evidence adduced, held, does not make it a case for interference in exercise of Constitutional jurisdiction. It .was also held that the High Court should not sit to decide the writ petition as a Regular Second Appeal. These judgments are not relevant because it is a case of gross misreading of evidence and non‑reading of material evidence on record resulting in illegal assumption of jurisdiction. Therefore, it is a fit case to interfere in writ petition. I am fortified in my view by the judgment of the Hon'ble Supreme Court in the case reported as Khizar. Hayat Khan Tiwana v. Zainab Begum (PLD 1967 SC 402): The orders of respondents Nos. 2 and 3 are without jurisdiction, therefore, not sacrosanct and liable to be set aside in Constitutional jurisdiction.

14. Now coming to the other aspect that the respondent No. 1, the landlady, has failed to prove her ownership in respect of the land in dispute. The ejectment petition was incompetent and her remedy was before the Civil Court to establish her title. We in this behalf refer to the case of Rahmatullah (supra) wherein it was held that the Rent Controller need not go into the intricate question of title. The Hon'ble Supreme Court, after examination of the case-law on the point, held as under:- "It has already been held that when the decision of the issue regarding relationship of landlord and tenant depends solely and not only incidentally on the question of the ownership and title to the property and. it will not be possible for the Controller to decide the case without deciding the basic question involved regarding title, then in such like cases it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative. It has also been observed that the requirement of the relevant law contained in the Rent Restriction 'Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In' that situation tae proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment. The decision of main issue depends directly on the decision regarding title in the present case." The same view was followed in the case of Abdul Hameed Naz and others v. Razia-Begum Awan and others (1991 SCMR 1376).

15. It is clear from the case-law referred to by the parties that conditions precedent for successfully defending ejectment petition on the ground of co. ownership are-- (i) that the objection should be taken at the beginning of litigation; (ii) that the objection should be based on a past and closed transaction and not merely on the agreement to sell; Legal consequences of a tenant of the property becoming co-owner are-- (a) that a tenant who acquires the status of co-sharer ceases to be a tenant as he himself would be covered by the definition of `landlord'; (b) that the principle of estoppel as enunciated in Article 15 of the Qanun-e-Shahadat (S. 116 of the Evidence Act) is not attracted when G the tenant acquires the status of co-owner; (c) that a tenant after obtaining the status of co-sharer is entitled to retain the possession till partition; ' (d) that the Rent Controller would have no jurisdiction in the matter; and (e) that the remedy of the ex-landlord would be initiation of partition proceedings in case of agricultural land and institution of partition suit in case of urban immovable property.

16. It is, therefore, clear that findings on both .issues Nos. 1 and 2 are liable to be reversed.

17. The upshot of the above discussion is that the impugned orders of respondents Nos. 2 and 3 are declared illegal and without jurisdiction by accepting the writ petition with costs. AA./M-2594/L Petition accepted.