2004 C L C 623

 

[Lahore]

 

Before Maulvi Anwarul Haq, J

 

UMAR HAYAT—Appellant

 

Versus

 

MANZOOR ELLAHI and another—Respondents

 

First Appeals from Orders Nos.4 to 7 of 2003, heard on 20th November, 2003.

 

(a) Cantonments Rent Restriction Act (XI of 1963)—

 

—-S. 17—Ejectment petition against tenant by one co-owner without impleading the other co-owners is maintainable.

 

(b) Cantonments Rent Restriction Act (XI of 1963)—

 

—-S. 17—Specific Relief Act (I of 1877), S.9—Ejectment petition against co-owner in possession —Maintainability—Co-owner could be ejected only upon partition of joint property—Where co-owner had taken possession forcibly, then other means of taking back possession would be suit under S.9 of Specific Relief Act, 1877.

 

Sh. Muhammad Suleman for Appellant.

 

Ch. Munir Sadiq for Respondents.

 

Date of hearing: 20th November, 2003.

 

 

JUDGMENT

 

This judgment shall decide First Appeal from Orders Nos.4 to 7 of 2003 as common questions are involved.

 

On 8-6-1998 the appellant filed four applications under section 17 of the Cantonment Rent Restriction Act, 1963 against the respondents in these four cases. It was contended that the respondent No. 1 in these cases respectively are tenants of the appellant in Property No.41-A, Hospital Road, Rawalpindi, which is owned by the appellant and he is receiving the rent. The said tenants filed a suit against respondent No.2 admitting tenancy. Then they entered into compromise and proceeded to sublet the premises to respondent No.2. It was stated that rent has not been paid by any of the respondents after May, 1997. It was then asserted that the appellant had not delivered the possession to respondent No.2. With these averments an ejectment order was sought in all these cases. Respondent No.2 in his written statement stated that respondent No. 1 was tenant under Khizar Hayat brother of the appellant, late father Ghulam Muhammad of the appellant had executed an agreement to sell in favour of respondent No.2 and possession teas delivered to him. Then there was mention that even appellant has received Rs.25,000 out of his share of the consideration but then resiled and a civil suit is pending having been filed by him. It was further alleged that Khizar Hayat etc. lead declared the possession and a business is being run in the name of Rahat Bakers. The relationship of landlord and tenant was accordingly denied. Following issues were framed in all these cases:–

 

(1) Whether there exists relationship of landlord between the parties? OPP

 

On 21-3-2000 with the consent of- the parties and their learned counsel all the 4 applications were consolidated and proceedings were conducted in the application titled Umer Hayat v. Manzoor Elahi. Evidence of the parties was recorded. Vide orders, dated 25-6-2002, all four applications were dismissed by a learned Rent Controller, Rawalpindi Cantonment:

 

  1. Sh. Muhammad Suleman, learned counsel for the appellant with reference to the case of Ashraf Kiani v. Mst. Hajran Bibi and others 1999 MLD 2821 argues that the learned Rent Controller having recorded finding that respondent No.1 in all these cases were tenants under the appellant, only order that could have been passed was of forthwith ejectment as payment of rent had not been alleged. Learned counsel for the respondents, on the other hand contends that in view of the established position on record that the property is joint and that other sharers have transferred their title in favour of respondent No.9, the learned Rent Controller has rightly directed the appellant to a Civil Court.

 

  1. I have examined trial Court record, with the assistance of the learned counsel for the parties. I have already reproduced above the respective pleadings available on record. Now it has come in the statement of Umer Hayat P.W.1 that it is a joint property owned by father of the appellant, namely, Ghulam Nabi Awan, Haji Ghulam Samdani, Ghulam Muhammad Awan and Ghulam Nazer. He then stated that he has two brothers two sisters and a mother who are alive. He expressed ignorance that his uncle Ghulam Nazer and his brothers and sisters have sold their shares in the joint property. According to him he was exclusive owner of the rented premises in question. However, he had no proof of his exclusive ownership. He then expressed ignorance that all other heirs have sold the property to respondent No.2 (Shaukat). He was unable to state his exact share in the joint property. He then stated that Rehat Bakery is not in his ownership although it is part of 41-A. He admitted that no suit for partition was ever filed by him. He then stated that there has been a family partition. Now the said Ch. Shaukat appeared as R.W.3. He stated that he purchased the property from Nabi Bakhsh Awan and Nazer Awan in the year 1994 and possession was delivered. He then stated that all other heirs have sold the property and transferred their share in his favour and he is owner. He has stated that he paid Rs.25,000 to the appellant but he resiled from agreement. He then stated that since the father of the appellant had agreed to sell the property to him, he like his brothers, sisters, mother and uncle is bound to make a statement in his favour. According to him the tenants were of the entire family and not of Umer Hayat alone. He, however, instigated them to file a suit against the witness. However, the matter was settled with Umer Hayat who conveyed to the tenants that the matter has been settled. The tenants withdrew the suit and delivered the possession. Thereafter the appellant came to resile and suit for specific performance is pending. Now I find in the cross-examination it has not even been suggested to this witness that other all co-owners have not sold the property in favour of respondent No.2.

 

  1. It thus, stands established rather admitted on record that the property is joint and all other co-owners except the appellant have transferred their shares in favour of respondent No.2 i.e. Ch. Shaukat. Admittedly he is in possession. Now there may be no cavil with the proposition that in the matter of ejectment, even one co-owner can file application for ejectment of a tenant without impleading other co-owners. However, in the present cases admittedly it is the co-owner who is in possession and is being sought to be ejected. Now it is well-settled that a co-owner in possession can be dispossessed only upon partition of joint property. Even if co-owner has taken forcibly possession, only other means of taking possession is suit under section 9 of the Specific Relief Act, 1877.

 

  1. Having thus, examined the records, I do not find any legal or factual error in the impugned orders whereby the appellant has been directed to approach the Civil Court to get separate possession out of joint property. All the four first appeals from orders are dismissed without any order as to costs.

 

Trial Court records be remitted back immediately.

 

S.A.K./U-71/L                                                                                     Appeals dismissed.