1990 PLP 718 (MLD)

"5.I have now heard the learned counsel for the parties at some length and considered the evidence on record. There are some salient aspects of the case, which somehow escaped the attention of the learned Rent Controller, and require to be considered for a correct decision on the points in dispute. I will first take up issue No.2 as framed by the learned Rent Controller. The property bearing No.151/B.2 was transferred to respondent Khushi Muhammad and the disputed portion is said to be a part of this property. The appellant based his claim on an agreement of association, said to have been executed by the parties in respect of the property, transferred by the Settlement Authorities and on the basis of this application a provisional transfer order is said to have been issued, in favour of the parties. In the first instance, the respondent contended that the said agreement of association had been obtained under a coercion and that it had conferred no right on the appellant in respect of the property in dispute. On this point, however, the respondent will have to seek relief either from the Settlement Authorities or by a separate civil suit and the Rent Controller would not be justified in considering the question of coercion, if a P.T.O. has been issued by the Settlement authorities.

6. An unfortunate aspect of the case however is, that the. P.T.O. said to have been issued by the Settlement Authorities has not been brought on record. The transfer of the property was originally made in favour of the respondent and the title and claim put forth by the appellant arose from the execution of an agreement by the respondent, which itself is now challenged by the respondent to be an invalid document. Apart from that the appellant could not put forth any claim in respect of the property until and unless he established that the Settlement Authorities had accepted the agreement of association and issued a transfer order in his favour. His failure to produce the P.T.O., in the circumstances therefore was a grave error.

7. But assuming for the sake of argument that the P.T.O. was issued by the Settlement Authorities, the transfer order was presumbly in respect of the transfer of the whole property to the appellant and respondent jointly. The effect of the issue of said P.T.O. would be that the appellant and respondent arc joint transferees of the property. The settled law in respect of joint owners of immovable property is that each one of them owns every inch of the property and none of the joint owners can claim to be the exclusive owner of any part of it unless the property has been divided by metes and bounds, either by a competent authority or by agreement of parties confirmed by the competent authority. There is however no evidence on record to show that the property had been .divided by metes and bounds either by the Settlement Authorities or any other competent authority. The appellant only alleged that the property was divided by him and the respondent by a document EX.P.1, which again is challenged by the respondent to be an invalid document. A number of points had to be considered in respect of this document. If it was an agreement of partition, the partition could not be deemed as having been carried out. Apart from that, the agreement required to be registered and implemented. On the other hand if it was a deed of partition even then it required registration, as it created present rights in immovable property. The most important question however is that this agreement far from being a legal and valid document was challenged by the respondent as an invalid document.

8. Again taking the case of the appellant, at its best, if it be conceded that this document P.1 effected a partition of the property as between the two joint transferees the projection for the shop in dispute still remained the joint property of the two transferees. There is absolutely no doubt about it as the document P.1 itself confirmed this. Now being a joint owner of this projection the respondent could not be deemed a tenant of the appellant in respect of the other half of the projection. Both are joint owners of the shop and both have a right of enjoyment in respect of it and none of them is tenant of the other in respect of any part of it. Being a joint owner of the said projection, the respondent therefore was not a tenant of the appellant in respect of one‑half of the projection and the so‑called agreement on the point even if it was executed has no legal effect; there can be no agreement against the provisions of law.

9. An application under section 13 of the Rent Restriction Ordinance for the ejectment of a tenant, by a landlord ‑can be entertained in respect of some property with definite boundaries which is the exclusive property of the landlord and is in exclusive possession of the tenant. It would be an extraordinary proposition to suggest, that the respondent was occupying half of the projection as owner and the remaining half as tenant of the appellant. The situation would be absurd.

10. Looking at it from another point of view it would be impossible to order ejectment of the respondent from that half of the projection which the appellant claimed as his property. As both the appellant and the respondent owned every inch of it, being joint owners of it, the appellant could not possibly point out any half of the property, from which the respondent could be ejected. The question would arise, from which half of the portion, should the respondent be ejected? Consequently, therefore, unless these portions were divided by metes and bounds the question of payment of rent by the respondent as a tenant or the question of ejectment of the respondent from half of the property cannot arise. The application of the appellant in the circumstances was absolutely misconceived and not maintainable according to law. The relationship of landlord and tenant did not exist as between the appellant and the respondent in respect of half of the portion in dispute (emphasis supplied by me). I, therefore, reverse the finding of the lower Court on this issue and hold that the relationship of landlord and tenant did not exist in the present case:' In addition to holding about absence of relationship of landlord and tenant, the appellate Court also found that statutory notice under section 30 had not been served. Decision given in appeal was not assailed further and attained finality. On 5‑11‑1976, Niamat Ullah recommenced an action in ejectment against Khushi Muhammad from the same property on the ground of stated rent -default. Khushi Muhammad submitted his defence wherein he again repudiated relationship of landlord and tenant. Niamat Ullah did not allow the ejectment case to proceed to its decision on merits but withdrew it on 11‑5‑1977 (copy not filed). On 27‑5‑1977, Niamat Ullah riled yet another ejectment petition on the basis of rent‑default for the past three years and sought ejectment of Khushi Muhammad from the chhappar in dispute. Again relationship of landlord and tenant was repudiated and plea of res judicata was relied upon. On 5‑10‑1977, Rent Controller settled following issue for determination:‑‑ "Whether the relationship of landlord and tenant exists between the parties." By order dated 18‑12‑1978, Rent Controller found preliminary issue in the negative and dismissed the ejectment petition. Niamat Ullah preferred an appeal (Civil Appeal No.15/13 of 1979) to learned District Judge, Faisalabad who accepted it on 7‑7‑1979/19‑7‑1979 and remanded the case with the direction to strike a separate issue on the preliminary objection No. 2 in the written statement and decide it alongwith the existing issue relating to existence of relationship of landlord and tenant after affording an opportunity of hearing to the parties. When the matter went back to the Rent Controller, following two issues were framed by him: (1) Whether the relationship of landlord and. tenant exists between the parties? O.P.A. (2) Whether the application is not maintainable in view of preliminary objection No. 2 of the written statement? Upon examination of the evidence led by the parties, Rent Controller vide his order dated 9‑12‑1980 concluded that relationship of landlord and tenant existed between the parties; section 14 of the Rent Ordinance was not a bar to the recommencement of ejectment proceedings against Khushi Muhammad and observed that "application would proceed further on merits regarding other grounds of ejectment". Meanwhile, Khushi Muhammad expired and the matter was pursued by his legal representatives. On 8‑1‑1981, Rent Controller gave a direction under section 13(6) of the Rent Ordinance for deposit of rent in Court. This direction was not complied with. Consequently, on 19‑2‑1981, Rent Controller struck off the defence of the legal representatives of Khushi Muhammad and passed an order for their forthwith ejectment. Against the decision of the Rent Controller, they filed an appeal in the District Court. It was heard by an Additional District Judge of Toba Tek Singh who agreed with the Rent Controller and dismissed the appeal on 16‑5‑1983. It is this decision that has been assailed at the instance of the legal representatives of Khushi Muhammad. Narration of facts shall not be complete without a reference to the litigation taken to Conciliation Court, a revision to the Court of District Judge and a writ petition filed in the High Court. On 6th October, 1967, Niamat Ullah brought a suit under the provisions of Conciliation Courts Ordinance, 1961 to recover Rs. 500 from Khushi Muhammad. On 25th March, 1969, Conciliation Court decreed the suit. Khushi Mohammad preferred a petition for revision before the District Judge. 1t was dismissed on 15th December, 1969. Thereafter, he fled a Constitutional petition (W.P. No. 56 of 1970) in the High Court. It was dismissed on 30th June, 1976 by Mr. Justice Aftab Hussain as his Lordship then was. This order of the High Court closed the chapter in so far as it concerned the litigation fought out under Conciliation Courts Ordinance. There was yet another branch of litigation initiated by Niamat Ullah before Settlement Authorities. He applied to the Settlement Authorities for demarcation of the shop in dispute. By order dated 13th December, 1967 D.S.C. observed "the division of the shop already made privately by the parties will remain confirmed as reported by the Block Incharge dated 18th November, 1967". An appeal fled by Niamat Ullah was dismissed on 30th April, 1968 by Additional Settlement and Rehabilitation Commissioner Sargodha Division (Camp Lyallpur) and Niamat Ullah was left to seek remedy in the Civil Court. Reference to above orders is available in the P.T.D. issued to Khushi Mohammad. There is still another litigation pending before the Civil Court wherein genuineness of agreement dated 20th June, 1960 was challenged and it has not yet been finally adjudicated upon. Seen from the above, only two points of importance require consideration. First point was whether Khushi Mohammad or his successors‑in- interest were tenants of the property as held by the Courts below and second, whether order of Additional District Judge in Civil Appeal No. 84/14 of 1965 was a bar to re-agitate the issue of relationship of landlord and tenant. Both the points though separately stated yet were closely interlinked. Rule enacted in section 14 of Punjab Rent Restriction Ordinance, 1959 partially embodies principle of res judicata. It is not merely intended to prevent a new decision but also prohibits fresh investigation so that the same person cannot be harassed or vexed again and again in various proceedings upon the same question once finally decided. Rule does not create any right or interest in property but operates as a personal bar to re-agitate the point at issue already decided in the former proceedings. It cannot be denied that an erroneous decision inasmuch binding and covered by rule of res judicata as a correct decision. It is the substantial effect of the previous decision that must be considered to discover whether a point sought to be subsequently agitated was substantially in issue between the parties in the previous proceedings and was finally decided between them. Section 14 of the Rent Ordinance reads, as follows:‑‑ "

14. Decisions which have become final not to be re‑opened. The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceedings under this Ordinance." Rent Controller acquires jurisdiction when either the relationship of landord and tenant is admitted between the parties and if denied proved to exist. Decision on the issue about relationship of landlord and tenant is a prelude to the acquisition of jurisdiction by the Rent Controller to decide on merits of the ejectment petition: In the case under consideration learned Additional District Judge had, after consideration of the entire in evidence including Iqrarnama Ext. Pl held that parties were in joint ownership of the property in dispute and relationship of lanldord and tenant did not exist between them. Subsequent issuance of P.T.D. and Transfer Order which merely affirmed the earlier entitlement of the parties to the property in dispute and some litigation under the Conciliation of Courts Ordinance, 1961 could hardly detract from the binding and conclusive nature of the earlier decision given in appeal which had positively found that relationship of landlord and tenant did not exist between the parties and they were mere co‑: owners. Dispute about relationship of landlord and tenant was the principal point.' at issue in the earlier ejectment proceedings also. It was finally decided by the appellate Court constituted under the Rent Ordinance. Instant ejectment petition raised substantially the same issue without there being any intervening change of materiality to give rise to a fresh cause of action. Iqrarnama Ext. Pl was considered by learned Additional District Judge in the former appeal. Nonetheless, the issue about the relationship of landlord and tenant was found in the negative and parties were held as co‑owners. Above finding binds both the parties and estops them from proving that it is not a correct decision. I have already said that there was no change in the circumstances since the decision of learned Additional District Judge dated 21st June, 1965. In this view, finding on the preliminary issue about relationship of landlord and tenant could not be re opened to record a contrary ,.finding. Neither oral nor documentary evidence could belittle the conclusive nature of the former decision. Learned Additional District Judge like the learned Rent Controller clearly disregarded the mandatory provisions in section 14 of the Rent Ordinance in an attempt to re‑open the issue finally concluded in former proceedings. This was an illegal exercise of jurisdiction. Both acted in violation of the statute law and consequently, their decisions are incorrect and cannot be upheld. As a co‑owner, Niamat Ullah could not have claimed ejectment of Khushi Mohammad or his successors‑in‑interest from a specified portion of the property jointly owned by them. In Mirza Adam Khan v. Muhammad Sultan P L D 1975 S C 9, it was observed:‑‑ "A co‑owner does not, therefore, become a tenant of the other owners, simply by being in possession of property in excess of his own share, and he would, therefore, be liable to pay compensation to the other co‑ I owners for the excess occupied by him. In this view of the matter he does not become a tenant, and no question would arise of taking proceedings against him under the Rent Restriction Ordinance." In view of the aforesaid, I would accept the petition, set aside the impugned decisions and declare them to have been passed without lawful authority. Net result of the above declaration would be that ejectment petition filed by Niamat Ullah shall be deemed to have been dismissed with option to agitate his entitlement before the Civil Court. Costs to be borne as incurred. M.B.A./M‑1824/L Petition accepted.