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Petitioner: ABDUL GHANI VS Respondent: ABRAR HUSSAIN
Court Name: Supreme Court of Pakistan Judge(s): Ajmal Mian, Sh. Riaz Ahmad, Sh. Ijaz Nisar Title: ABDUL GHANI vs ABRAR HUSSAIN Case No.:Civil Appeals Nos. 647. 648 and 649 of 1994 Civil Appeal No, 647 of 1994
JUDGMENT
Reported As: 1999 SCMR 348 Result: Order accordingly Judgment JUDGMENT ' AJMAL MIAN, J.---By this common judgment, we intend to dispose of above three civil appeals as they are directed against common judgment dated 4th May, 1994 of a learned Single Judge of the Sindh High Court passed in First Appeals Nos.740 of 1988, 356 of 1993 and 357 of 1993. 2. First Rent Appeal No,740 of 1988 was filed by the appellant in above Civil Appeal No,647 of 1994 against order of Rent Controller dated 3rd August, 1988 dismissing the appellant's Rent Case No,257 of 1987 whereas First Rent Appeals Nos.356 of 1993 and 357 of 1993 were filed by the respondents/tenants in Civil Appeals Nos.648 and 649 of 1994 against the orders of the Rent Controller dated 12th July, 1993 in Rent Case No,1508 of 1986 and the Rent Controller order of even date in Rent Case No,258 of 1987 granting ejectment in favour of the appellants in the above two appeals on both the grounds. By the judgment under appeal, the learned Judge in Chambers allowed the above First Rent Appeals Nos.356 and 357 of 1993 by setting aside the ejectment order but dismissed the appellant's above Rent Appeal No,740 of 1988. The operative portion of the above judgment reads as follows:-- "In view of the above, the proper course for the appellant in F.R.A. No,740 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
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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.R.A. 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." 3. The brief facts are that plot of land bearing No,L.R.9/24-P, IC-C141/142, measuring 11401 sq.Yds., with the construction thereon which consisted of several buildings comprising about 285 small apartments and a factory, was put to auction as a big mansion, which was purchased by one Nawab Din and fifty-eight others for a sum of Rs,5,71,000 (Rupees five lac seventy-one thousand). The payment of the above price was made by the above purchasers through various Compensation Books which had verified claims for different amounts. A P.T.O. In respect thereof was issued on 17th December, 1959 in favour of the above fifty-nine persons. It seems that the present three appellants in the above three appeals are the sons of Naney Khan son of Qasim Bakhsh, who is mentioned at Serial No,4 of the P.T.O. (at page 60 of the paper book Part I of Civil Appeal No,647 of 1994). 4. It is an admitted position that till today, no PTD has been issued. It is also an admitted position that the above big mansion has not been partitioned among the transferees. So legally all the fifty- nine transferees or their successors have joint ownership of the above big mansion. It seems that Naney Khan expired leaving behind inter alia three sons namely the three appellants in the above three appeals. They filed above three ejectment cases against the respondents on the grounds of default in payment of rent and personal requirement. The above cases were resisted by the respondents inasmuch as, it was denied that the appellants were co-owners of the suit premises or that they were landlords. It was also pleaded that the appellants failed to establish their ownership in respect of the premises in possession of the respondents. It appears that at a later stage, it was also pleaded that the respondents had become joint owners of the big mansion by virtue of entering into agreements to purchase the interest of the three joint transferees in respect of which registered power of attorneys were executed. It may be pertinent to mention that the case of the respondent in Civil Appeal No,647 of 1994 was that he purchased the share of Salamullah (mentioned at Serial No,6 of the PTO at page 60 of the Paper Book Part I of Civil Appeal No,647 of 1994). Whereas the case of the respondent in Civil Appeal No,648 of 1994 was that he had purchased the share of Mst. Ulfat wife of H. A. Haleem Khan through her legal heirs and the plea of respondents in Civil Appeal No,649 of 1994 was that they had purchased the share of the transferee Shahzad mentioned at Serial No,33 of the PTO at page 60 of the Paper Book, Part I of Civil Appeal No,647 of 1994). It appear that the legal heirs of the transferees applied to become parties in the above first rent case. Their application was declined by the High Court by order dated 28th September, 1993 whereas in the above remaining two Rent Cases, they were impleaded by the Rent Controller. It is not necessary to refer to the litigation which ensued on account of the filing of the above application for being impleaded as parties. It will suffice to observe that they supported the case of the respondents/occupants of the suit tenements by admitting that agreements to sell have been executed. They have received the amount of consideration and that they executed registered power of attorneys. 5. It may be again stated that the Rent Case No,257 of 1987 was dismissed whereas the other two rent cases were allowed. The matters were brought before the High Court by filing above First Rent Appeals. It appears that while above. First Rent Appeal No,740 of 1988 was pending, a learned Single Judge of the High Court on 3rd December, 1992 adjourned the appeal sine die and directed the appellant to approach the competent authorities for obtaining a PTD of the property and to get the same demarcated so that there should not remain any confusion about the fact as to which of these 285 houses was transferred to which of the fifty-nine claimants. Against the above order, a
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petition for leave to appeal was filed which was granted and Civil Appeal No,53-K of 1992 arising from the above petition was allowed by this Court through judgment dated 10th March, 1992 and the High Court was directed to hear the above appeal. 6. After that, the above F.R.A. No,740 of 1988 was heard alongwith above Rent Appeals Nos.356 and 357 of 1993 which were disposed of by the judgment under appeals in the above terms, whereupon the appellants filed petitions for leave to appeal which were granted to consider the contentions noticed in para. 8 of the leave granting order dated 4th July, 1994 which read as follows:-- "Contentions raised before us on behalf of the landlords are that firstly, there was sufficient evidence available in the rent proceedings that the landlords were entitled to receive rent and were covered by the definition of landlord as contemplated in section 2(f) of the Sindh Rented Premises Ordinance, 1979. Secondly, if tenant disputes relationship and claims title to the property, then it is for him to have I B question settled by the Civil Court. Thirdly, plea of the tenant that disputed premises were purchased by him is not reflected in the pleadings and, therefore, no issue was framed with regard to it in the rent proceedings, which could be concluded as permitted in the relevant law. Fourthly, directions in the impugned judgment given to the landlords/petitioners before us to obtain PTD and to have property demarcated are outside the scope of rent proceedings as defined in the Sindh Rented Premises Ordinance, 1979. Fifthly, whether PTO is not sufficient to entitle landlord to claim rent as contemplated under the provisions of the Sindh Rented Premises Ordinance, 1979." 7. In support of the above appeals, Mr. Zahoor-ul-Haq, learned Advocate Supreme Court appearing for the appellant in Civil Appeal No,647 of 1994 has vehemently contended that the learned Judge in Chambers was not justified in non-suiting the appellant on the grounds found favour with him. The thrust of his arguments was that the appellants as one of the co-owners of the suit premises was entitled to file ejectment proceedings on the grounds of default as well as personal requirement and that non-issuance of a PTD or non-partitioning of the above big mansion amongst the transferees was not fatal to the above rent cases. 8. Mr. Abdul Majeed, learned Advocate Supreme Court who has appeared for the appellants in the remaining two civil appeals has reiterated the above submissions of Mr. Zahoorul Haq, Advocate Supreme Court. 9. Mr. Ali Akbar, learned Advocate Supreme Court appearing for the respondents in the above three appeals has vehemently urged that the appellants, in fact, are attempting to commit fraud by getting the respondents ejected through the above rent cases. His submission was that since the respondents have purchased the shares/interest of the above three co-transferees, they had become joint co-owners and hence they cannot be ejected by a joint co-onwer particularly keeping in view that the above big mansion has not been partitioned and none of the above fifty- nine persons can claim ownership in respect of a specified portion of the above property. His further submission was that since no PTD has been issued, the appellants have no right to file ejectment application. 10. Mr. Zahoorul Haq, Advocate Supreme Court has invited our attention to para. (iii) of the Provisional Transfer Order dated 17th December, 1959 which reads as follows:-- "(iii) Fending the permanent transfer of the said property the transferee shall not alienate it in any manner except that the transferee may lease it or mortgage it subject to such conditions as may be laid down by the Chief Settlement Commissioner." ' According to him, in terms of the above-quoted para. Of the PTO, a transferee is not entitled to alienate but has been given the right to lease or to mortgage a soot transferred property subject to such conditions as may be laid down by the Chief Settlement Commissioner. ' He has also referred to section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) and submitted that by virtue of the above provision of
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the Act, relationship of landlord and tenant came into existence upon the issuance of PTO between the transferees and the occupants of the above big mansion. ' Mr. Ali Akbar, learned counsel for the respondents has referred to the case of Attaul Haque and 2 others v. H. Malik Electric Co. Reported in PLD 1971 Lahore 1007 (decided by a Division Bench) in support of his submission that no ejectment case can be maintained by the transferees of a big mansion unless and until a PTD is issued. In the above report, the transferees of the big mansion involved were issued a letter of transfer and not a PTO or a PTD. In that context, the observations relied upon by Mr. Ali Akbar, Advocate Supreme Court were made by the learned Judges of the Lahore High Court. However, in the case in hand, a PTO was issued as far back as 1959. The full price has been paid. There is no doubt that certain amounts as rent and other charges are to be paid before a PTD can be obtained but this does not detract the right of the transferee to let out big mansion or to file ejectment case in respect of the same or a portion thereof. We are inclined to agree with Mr. Zahoorul Haq, learned counsel for the appellant in the above Civil Appeal No,647 of 1994 that by virtue of the above-quoted para. (iii) of the. PTO, the transferees of the big mansion in question were entitled to let out above transferred property. The relationship of landlord and tenant came into existence between the transferees and the occupants by virtue of section 30 of the Act. 10. Mr. Zahoorul Haq, learned counsel for the appellant has cited the following cases in support of his contentions that one of the co-owner/co-sharer can file ejectment proceedings without impleading the other co-owners/cosharers: -- (i) AIR 1932 Sindh 220--Pitamberdas and others v. Bhawanilal and others. (ii) PLD 1971 Lah. 104--Mazhar Ali Azhar v. Dr. Inzarul Islam Qureshi. (iii) PLD 1973 Note 138 at p.209 (Karachi) Sh. Syed Rashid Hussain and 2 others v. Hussain Haji Ahmed. (iv) PLD 1973 Supreme Court 214--Khalique Ahmed v. Abdul Ghani and another. (v) 1981 SCMR 193--Ghulam Rasul and another v. Hajan Bakhtawar and another. (vi) 1983 SCMR 302--Bashir Ahmad v. Abdul Hamid and another. (vii) PLD 1983 Karachi 419--Mst. Safia Bai v. Abdul Sattar. (viii) PLD 1985 Karachi 47--Shahryar Ali Patudi and 3 others v. Messrs Decora Furnishers. (ix) 1986 CLC 354 (Karachi)--Mrs. Zeinab Mehmood and another v. Hamida Khatoon and another. (x) 1991 SCMR 432--Ghulam Mustafa and others v. Mst. Muhammadi Begum and others. (xi) 1996 MLD 391 (Lahore)--Pakistan Burmah Shell v. District Judge and others. ' It is not necessary to deal with all the above cases in detail. It will suffice to refer to the two cases, namely, the case mentioned at Serial No,(ii) in which a learned Single Judge of the Lahore High Court has held that an associate of a purchaser of a big mansion can take ejectment proceedings in respect of premises transferred to him under deed of association. It was further held that under para. 10 read with para. 19(b) (Part VIII) of terms and conditions of auction of big mansions under Settlement Scheme No,3, Settlement Authorities are competent to issue PTO in respect of transfer of big mansion. Whereas in the fourth case mentioned above which is the leading judgment of this Court on the controversy in issue, Muhammad Yaqub Ali, J. Sitting with Anwarul Haq, J., held as under:-- "That there were three other co-owners of the leased premises had, in law, no effect on the competence of the application for ejectment. A suit for possession can be brought by all the co- owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike, that a suit for ejectment can be filed by one of the co-owners without joining the others as defendants. This is the difference between an action for possession and an action for ejectment. If this clear distinction was kept in view, certificate of fitness under clause 10 of the
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Letters Patent would not have been granted, nor the appeal admitted to hearing by the Division Bench." ' Same view was taken by this Court in the case of Ghulam Rasul and others v. Hajan Bakhtawar and another (supra) mentioned at serial No,(v) and the case of Bashir Ahmad v. Abdul Hamid and another (supra) mentioned at Serial No,(vi). In the above remaining Reports, more lesss same views have been taken. It seems to be a well-settled proposition of law that a co-owner can file ejectment proceedings against a tenant without impleading his other co- owners under the Rent Laws whereas a suit for possession cannot be filed without impleading all the co-owners. 11. However, the contention of Mr. Ali Akbar, Advocate Supreme Court was that since the respondents had purchased the shares of 3 transferees referred to hereinabove in the big mansion involved, the appellants and the respondents have become co-owners/co-sharers and hence in the absence of any partition of the above big mansion, a co-owner/co-sharer cannot file an ejecment application. In support of above submissions, he has referred the cases of Allah Rakha v. Mukhtar Ahmad Baig reported in 1996 SCMR 1501, Ali Gohar Khan v. Sher Ayaz and others reported in 1989 SCMR 130, Muhammad Nawaz and 2 others v. Sh. Abdul Latif and another reported in 1971 SCMR 198, Abdul Rafiq v. Saadat Ali reported in NLR 1980 Civil Lah.199 and Muhammad Nadar Khan and 2 others v. Jam Khair Muhammad reported in 1989 CLC 1310. ' In the first case, the facts were that one Mukhtar Ahmad Baig (who was represented through his legal heirs before the Supreme Court) was issued a PTO by the Settlement Department on 30th January, 1962 in respect of a house. On 12th February, 1962, said Mukhtar Ahmad executed two documents viz. a mortgage deed and an agreement of sale. By the latter agreement, he agreed to sell the said house to the appellant but as a sale-deed could not be executed until a PTD had been issued in order to give effect to the bargain, a mortgage deed was also executed on the same day. In both the above documents, consideration stated was Rs,8,000 (rupees eight thousand). It appears that said Mukhtar Ahmad subsequently filed a suit for possession by redemption of the said mortgage on payment of Rs,8,000. The same was contested. The learned Civil Judge granted a preliminary decree in favour of Mukhtar Ahmad Baig, holding that the transaction was a mortgage. The appellant feeling aggrieved by the said judgment filed an appeal before the District Judge which was accepted by a learned Additional District Judge and it was held that the transaction was a sale but the property could not be sold until PTD had been issued. Upon filing of a civil revision, the learned Chief Justice of the Peshawar High Court has held that there was transaction of sale between the parties but he further went on to observe that in absence of PTD, the sale was not complete and under such circumstances, there was no need for execution of an agreement of sale. Leave was granted by this Court against the above judgment of the High Court to examine the propriety of the said judgment. Eventually, this Court maintained the judgment of the High Court and dismissed the appeal, holding that the sale was in fact complete, since full consideration had been paid to the respondents by the appellant and the possession of the property had also been obtained by the latter. It may be pointed out that in the above case, the question as to whether under the terms of the PTO, a sale agreement could be entered into was not discussed as it was not in issue. To some extent, the above case supports the plea of Mr. Ali Akbar, Advocate Supreme Court. In the second case, this Court held that in case of joint immovable property, each co-sharer deemed to be interested in every inch of subject-matter irrespective of quantity of his interest and that one co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-owner. It was also held that a co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by metes and bounds. In the third case, this Court held that co-sharer in possession of joint property cannot be evicted without filing suit for partition. In the fourth case, a learned Single Judge of the Lahore High Court held that original occupants of evacuee property
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does not ipso facto become a tenant, under section 30 of the Act when persons are themselves joint owners and that eviction application against such person is not competent. In the fifth case also, same view was taken by the learned Single Judge of the said High Court while sitting at Bahawalpur Bench that a co-owner cannot eject another co-owner unless partition of joint property is effected. ' In the sixth case, a learned Single Judge of the Lahore High Court held that a co-owner cannot eject another co-owner unless partition of the joint property is effected. It was also observed that the right course for the respondent was to apply for partition of Khata in dispute. After having held as above, the learned Judge in Chamber set aside the decree of the learned District Judge granting ejectment against the co-owner and restored the judgment/decree of the trial Court dismissing the suit. 12. In the instant case as pointed out hereinabove, 3 out of 59 original transferees or their legal heirs, have entered into agreements of sale of their share/interest in the above jointly owned big mansion with the respondents. They have also admitted in their affidavits which were filed in support of their application for becoming parties to the above rent cases that they have received the consideration of their shares. They have also executed registered power of attorneys in favour of the respondents. On the other hand, Mr. Zahoorul Haq has relied upon para. (iii) of the Provisional Transfer Order dated 17-12-1959 reproduced hereinabove in para. 10, which provides that the transferees shall not alienate the transferred property in any manner except that they may lease it or mortgage it subject to such conditions as may be laid down by the Chief Settlement Commissioner. According to Mr. Zahoorul Haq, in view of the above clause in PTO the aforesaid 3 out of 59 transferees could not have created any interest in the property in favour of the respondents through the above sale agreements. To this the reply of Mr. Ali Akbar was that there was no prohibition to enter into an agreement to sell and, therefore, the respondents are entitled to invoke section 53-A of the Transfer of Property Act in order to protect their possession. Reliance was placed by him on the cases (1) Naib Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others (1992 SCMR 1265), (2) Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 Supreme Court 382) and (3) Kalimuddin Ansari v. Director, Excise and Taxation, Karachi and another (PLD 1971 Supreme Court 114). In the first case, this Court held that in order to apply section 53-A of the Transfer of Property Act, 1882, the following ingredients are necessary:-- (i) There is a-contract in writing signed by the transferor in respect of an immovable property; (ii) from the writing, transfer can be ascertained with reasonable certainty; (iii) in part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and (iv) the transferee has performed or is willing to perform his part of the contract; (v) if all these conditions are satisfied, then even if the contract is not registered, the transferor or any person claiming under him cannot enforce any right in respect of the property of which the transferee has taken possession except such right, which a transferor is entitled to enforce by virtue of the contract. ' In the second case, this Court set aside the judgment of a learned Single Judge of the High Court of Sindh in which it was held that the appellant who was tenant and who had entered into an agreement of purchase of the tenement and paid part of the consideration was entitled to invoke section 53-A of the Transfer of Property Act. The appeal of the landlord was allowed as under:-- "For the foregoing reasons I am unable to subscribe to the conclusions arrived at by the learned Single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of section 53-A of the Transfer of Property Act and the relationship
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of landlord and tenant continued to exist between the parties even after the execution of the agreement of sale. As admittedly the respondent had failed to tender rent to the appellant the eviction order passed against him by the Rent Controller was fully justified. I would, therefore, allow this appeal, set aside the judgment of the learned Single Judge of the High Court and restore the order passed by the Rent Controller." ' In the third case, two representative suits, were filed in the High Court by the allottees of plots of land in P.E.C.H.S. Society, Karachi challenging the right of the Excise and Taxation Department and of the then Karachi Municipal Corporation to levy taxes on the bungalows/shops etc. On the ground that in terms of the sub-licence the land remained vested in the Federal Government and therefore, they were not the owners of the property in terms of the sub-licence. The above contention was repelled by the High Court as well as by this Court. This Court while dismissing the appeal filed by the allottees of the plots observed that "in any proceeding for ejectment section 53-A of the Transfer of Property Act would afford a valid defence against the ejectment". It was further observed that "the agreements clearly show that the Government has intended to divest itself and to vest the laws in the sub-licensees". 13. Since the above big mansion has not been partitioned, none of the transferees out of above 59 transferees can claim that he owns any specific part of the big mansion as all…
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