1995 PLP 642 (MLD)

The Rent Controller on the basis of the pleadings of the parties, formulated the following points for his consideration: "(1) Whether there exists relationship of landlord and tenant between the applicant and opponent from Sr. Nos. 1 to 6? (2) Whether the opponents have committed wilful default in payment of rent? (3) Whether applicant requires the premises in question for personal bona fide use? (4) Whether statutory notice was required to be served on opponents and co‑owner can file the ejectment proceedings without joining other co-?owners?" On the basis of the evidence brought on record by the parties, the Rent Controller answered all the four points in the affirmative and allowed the ejectment application. The tenants, being aggrieved, have preferred this appeal (F.RA. No.356 of 1993), against that order. F.R.A. No.357 of 1993: Muhammad Ibrahim, the third son of Haji Nanney Khan filed an ejectment application against Muhammad Ismail, who is in possession of a portion of the building known as Topendas Alimchand Building, on the ground that he had committed default in payment of rent, sublet the rented premises and that it was required for his personal bona fide use. Subsequently, appellants Nos.2 to 7 sought to be joined as the respondents in this rent case and their application was allowed by the Rent Controller and they were impleaded as such. The ejectment‑ application was resisted by Muhammad Ibrahim as, according to him, Nanney Khan at best, had a share in the undivided big mansions and its full transfer price was not paid to the Settlement Department and therefore transfer of the property in question was not final. He further denied the averments made in the ejectment application. The Rent Controller on the basis of the pleadings of the parties formulated the following points for his consideration: "(1) Whether opponent No.1 is tenant of co‑owner of the premises in question? (2) Whether the tenant has committed any wilful default in payment of rent? (3) Whether the applicant requires the premises in question for his personal bona fide use? (4) Whether statutory notice was required to be served on the opponent and a co‑owner can file ejectment proceedings without joining other co‑owners? ' (5) What should the order be? On appraisal of the evidence adduced by the parties, the Rent Controller decided the first 4 points in favour of the respondents and ordered ejectment of the appellants. The present First Rent Appeal No.357 of 1993 has been filed by the tenants. Mr. Abdul Majeed Khan, Advocate appeared for the appellant in F.RA. No.740 of 1988 and for respondents in the other two appeals, while Mr. Ali Akbar, Advocate appeared for respondent in F.R.A. No.740 of 1988 and for the appellants in the other two appeals. Mr. Abdul Majeed Khan, Advocate, in these three appeals, mainly contended that the three sons of late Nanney Khan, one of the 59 transferees of the property in dispute, as co‑owner, are entitled to initiate action under section 15 of the Sindh Rented Premises Ordinance, 1979. He also contended that the person or persons in whose favour provisional transfer order of an evacuee property is issued, he or they will be entitled to recover the rent and initiate other actions under the Ordinance. In support of his such arguments he referred to the cases reported in PLD 1973 SC 214, 1986 CLC 354; 1992 MLD 1601, PLD 1964 SC 189 and PLD 1990 SC

427. Mr. Ali Akbar, Advocate appearing in these three appeals contended that the three applicants in the three rest cases are sons of one Nanney Khan, who admittedly was one of the 59 transferees. Nanney Khan is dead and his all the legal heirs are not known. The legal heirs of Nanney Khan, at best, will be entitled according to the share they had inherited out of 1/59 share in the joint properties and till such time their share is ascertained and demarcated at the site, they cannot be treated as the "owners" of the premises. Besides, the opponents in the rent applications have also asserted that they have purchased the share of one of the transferees in each case and had stepped into their shoes as joint owners of the property and the owner cannot be ejected from the premises owned by him as he occupies the premises as owner and not as a tenant. The transferees had admittedly not paid the full price of the evacuee property transferred to them and, therefore, they have acquired no title in the property. Mr. Ali Akbar, Advocate for the parties in these appears has contended as under:‑‑‑ (1) That in case of transfer of a big mansion provisional transfer order cannot be issued unless full price is paid within the stipulated period and the transferees can only seek the ejectment of statutory tenants after the property is permanently transferred to him. He referred to the case of Attaul Haq and 2 others v. S. Malik Electric Company reported in PLD 1971 Lah. 1007. (2) That a co‑sharer can only seek ejectment of a person in possession of the property to the extent of his share, that too after securing partition of the property. He referred to the case reported in PLD 1964 Dacca 739. (3) That the respondents in the rent applications claimed to have purchased the share of original transferees for adequate consideration and became joint owners of the property, notwithstanding the fact that the transfer in their favour was not effected through a registered sale?‑deed. In such a case a co‑sharer in possession of joint property cannot be evicted without filing suit for partition. He referred to the case reported in 1971 SCMR 198 and the case reported in PLD 1969 Dacca 319. (4) That the definition of `landlord' as contained in West Pakistan Urban Rent Restriction Ordinance, 1959 and Sindh Rented Premises Ordinance, 1979 are materially different from each other. The admitted facts of these 3 appeals are that the dispute concerns rented premises in a big mansion sold out through open public auction to one Nawab Din, who associated 58 or 59 other persons for the payment of the price that he had offered in the bid. The full price of the big mansion has not been paid by the auction‑bidders and in spite of it provisional transfer order was issued in favour of Nawab Din and 58 others the shares of 59 persons are not mentioned in the provisional transfer order. During the passage of time some of the transferees sold their share to certain persons who were in possession of certain apartments in the big mansion. The most important point in these appeals is, if the 3 sons of Nanney Khan since deceased and one of the original persons, who had associated himself in the part payment of the price of big mansion, can be considered to be landlords in terms of the definition given in the Sindh Rented Premises Ordinance, 1979 to enable them .o seek ejectment of the alleged tenants. The definition of `landlord' as given in section 2(f) of the Sindh Rented Premises Ordinance, 1979, is reproduced below:‑‑‑ "Landlord means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises," Owner of a premises would mean a person who has a title over an immovable property. In the present cases the property being evacuee for which full price has not been paid as yet and no permanent transfer deed issued in favour of the alleged transferees, the 3 sons of deceased Nanney Khan cannot be considered to be the owners. Besides the share of individual alleged transferees is also not determined in accordance with para. 16‑B of the Schedule to the Displaced Persons Compensation and Rehabilitation Act. In a case where full price is not paid even a provisional transfer order cannot be issued by the Settlement Department and such transferees can only take action to eject a tenant from the property after it is permanently transferred to him, his share is determined and partition of the property to the extent of his share is sought by him. In the present cases the 3 sons of Nanney Khan or any one else cannot be treated as "owners" of the property entitled to receive rent and seek ejectment of the tenants. Since there is no owner of the property in dispute, there cannot be any person who can be authorised for the time being to receive rent or considered as entitled to receive rent in respect of such premises. This view was taken in the case of Attaul Haq and 2 others v. H. Malik Electric Company reported in PLD 1971 Lah. 1007. The respondents in the application filed by the 3 sons of Nanney Khan claimed to have purchased share of some of the original transferees for adequate consideration and they were in possession of the premises in dispute. In the present cases when the original transferees did not acquire title as yet, they could not transfer the title to the subsequent purchasers but the purchasers being in possession of the premises were confirmed with their possessory title. They will be protected under section 53‑A of the Transfer of Property Act. It is also not known if the property in question was intended to be transferred by the department to all the 59 persons or 58 persons had merely transferred their compensation books to Nawab Din for payment of the price only. In view of the above, the proper course for the Appellant in F.R.A. No.40 of 1988 and the respondents in F.R.A. No.356 of 1993 and F.R.A. No.357 of 1993 will be to first obtain permanent transfer deed of the property in question after making the full payment of the price, have the share of each transferee determined and have the property partitioned according to the share of individuals and then if the property is needed for their bona fide use or default in payment of rent is committed by any of the statutory tenants,' action can be initiated against the concerned statutory tenants only. For the foregoing reasons I set aside the orders of the Rent Controller impugned in F.RA. No.356 of 1993 and F.R.A. No.357 of 1993, allow these appeals and dismiss the ejectment applications filed by the respondents in the two appeals while F.R.A. No.740 of 1988 is dismissed. AA./A‑1491/K??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.