Eviction petition is not maintainable against co-sharer.
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| Case law : eviction petition is not maintainable against cosharer |
پراپرٹی خالی کروانے کی درخواست رینٹ کنٹرولر کے پاس شریک جائیداد کے خلاف قابل قبول نہیں۔
** فیصلے کا خلاصہ:
عبدالرحمن بمقابلہ اضافی۔ ڈسٹرکٹ جج-I، راجن پور (2016 کی رٹ پٹیشن نمبر 382)**
**عدالت:** لاہور ہائی کورٹ، ملتان بنچ
**سماعت کی تاریخ:** 21 اپریل 2022
**حقائق:
** درخواست گزار عبدالرحمان نے رینٹ ٹربیونل سے بے دخلی کے حکم کو چیلنج کیا جسے اپیل کورٹ نے برقرار رکھا۔ جواب دہندہ نمبر 3، ثریا اعجاز نے ایک نجی خاندانی تصفیہ اور عبدالرحمٰن کے ساتھ کرایہ داری کے معاہدے پر مبنی دکان کی مالک ہونے کا دعویٰ کیا۔
**درخواست گزار کی دلیل:**
- کرایہ داری سے انکار اور دستاویزات میں مبینہ تضاد۔
- دلیل دی کہ جواب دہندہ نمبر 3 کو بے دخلی کے بجائے تقسیم کی درخواست دائر کرنی چاہیے تھی۔
- متعلقہ مقدموں میں تقسیم کے جاری تنازعات کا حوالہ دیا گیا۔
** مدعا علیہ کی دلیل:**
- جواب دہندہ نمبر 3 نے کرایہ داری کے معاہدے اور ملکیت کا ثبوت فراہم کیا۔
- اس کی پوزیشن کی حمایت کرنے والے ماضی کے معاملات کا حوالہ دیا گیا۔
**عدالت کا تجزیہ:**
- ایک شریک مالک واضح، خصوصی ملکیت یا درست کرایہ داری ثابت کیے بغیر کرایہ کے قانون کے تحت دوسرے شریک مالک کو بے دخل نہیں کر سکتا۔
- نجی خاندانی تصفیہ اور کرایہ داری کا معاہدہ متنازعہ تھا اور صحیح طریقے سے ثابت نہیں ہوا۔
- رینٹ ٹریبونل کو نجی خاندانی تصفیہ کی درستگی پر فیصلہ نہیں کرنا چاہیے۔
**نتیجہ:**
- عدالت نے بے دخلی کے حکم کو ایک طرف رکھ دیا، یہ کہتے ہوئے کہ پٹیشن رینٹ ایکٹ کے تحت قابل سماعت نہیں ہے۔
- جواب دہندہ نمبر 3 دیگر قانونی علاج کی پیروی کر سکتا ہے، جیسے کہ تقسیم اور mesne منافع کے لیے مقدمہ۔
**فیصلہ:** درخواست کی اجازت؛ بے دخلی کا حکم اور اپیل کے فیصلے کو ایک طرف رکھا گیا۔
Must read judgement .
Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
Writ Petition No.382 of 2016
Abdul Rehman Vs. Addl. District Judge-I, Rajanpur, etc.
J U D G M E N T
Date of Hearing:
21.04.2022.
Petitioner by:
Malik Muhammad Shahzad Fareed
Langrial, Advocate
Respondent No.3
by:
Mr. Abdul Salam Alvi, Advocate
Anwaar Hussain, J. The controversy involving the instant lis,
though emerging out of eviction petition under the Punjab Rented
Premises Act, 2009 (hereinafter “the Act, 2009”), finds its genesis in
one of the inherited properties of one Abdul Salam, (hereinafter “the
deceased”), who left behind two sons, namely, Abdul Sattar and
Abdul Rehman, the latter being the petitioner, and one daughter,
namely, Surayyia Ijaz, being arrayed as respondent No. 3, who filed
eviction petition against the petitioner. The rented premises is one of
the shops forming part of a plot bearing PTO No.78296 dated
27.03.1979 (hereinafter “the property’) left by the deceased.
Respondent No. 3 claims to have been owner of the shop on the basis
of private family settlement (Exh-A2) purportedly executed by and
between the legal heirs of the deceased on 09.03.2005 (hereinafter
“the private family settlement”). Subsequently, as per contention of
respondent No.3, through a tenancy agreement dated 22.03.2014
(Exh-A3, which is hereinafter “the tenancy agreement”), she
inducted the petitioner as her tenant in the rented premises and failure
on part of the petitioner to pay the agreed amount of rent, qua
W.P. No.382/2016 2
occupancy of the rented premise, constrained respondent No. 3 to
initiate eviction proceedings, in accordance with the Act, 2009, in
which the petitioner filed a reply that was treated as application for
leave to contest by learned Rent Tribunal. Relationship of landlord
and tenant was denied by the petitioner. Leave to contest was
allowed. Resultantly, issues were framed and through the impugned
order dated 05.09.2015, the learned Rent Tribunal, Rajanpur, allowed
the eviction petition, filed by respondent No.3, which findings were
upheld by the learned Appellate Court below vide impugned
judgment dated 16.11.2015. The instant constitutional petition has
been filed by the petitioner laying challenge to the concurrent
findings of the forums below.
2.
Learned counsel for the petitioner submits that the petitioner is
not a tenant of respondent No.3 and the documents produced before
the learned Rent Tribunal when read in conjunction with the contents
of the eviction petition brings forth serious contradictions in the
stance of respondent No.3 inasmuch as in her eviction petition,
respondent No. 3, in paragraph No.2 thereof, has herself stated that
the private family settlement was overridden by a subsequent family
settlement and it was under the later arrangement that the rented
premises fell in the share of the respondent No. 3 in respect whereof,
the tenancy agreement was executed but no such fresh family
settlement or arrangement has been brought on record. Adds that
similarly, description of the rented premises in the tenancy agreement
and the shop falling in the share of respondent No. 3 under the
private family settlement is different without any plausible
explanation and therefore, there is no tenancy relationship between
the petitioner and respondent No.3, which fact has escaped judicial
notice of the learned courts below. Further avers that as a co-owner
of the property of which the rented premises is part, respondent No. 3
had a recourse available to her to file a suit for partition and claim
mesne profit but cannot invoke jurisdiction of the learned Rent
W.P. No.382/2016 3
Tribunal under the Act, 2009. Finally, refers a suit for partition filed
by respondent No.3 against the petitioner as well as other
stakeholders qua property left by grandfather of the petitioner as well
as respondent No.3 and other stakeholders to contend that mere
institution of the said suit substantiates that proper partition of the
properties left by the deceased including the rented premises has not
been effected and hence, in such eventuality the eviction petition is
not even maintainable.
3.
Conversely, learned counsel for respondent No. 3 submits that
the assertions of petitioner are misconceived inasmuch as respondent
No.3 was only obligated to prove execution of the tenancy
agreement, which the petitioner had denied and this burden has been
duly discharged by respondent No.3 by producing required number
of witnesses. Adds that perusal of the plaint of the suit instituted by
respondent No.3, for partition of remaining property of predecessorin-interest of the parties clearly indicates that not only the rented
premises but the property, of which the rented premises is part, has
not been included in the said suit since the same was already
partitioned through private family settlement, therefore, the same was
past and closed transaction and respondent No.3 has clearly proved
her title to the suit property and also the execution of the tenancy
agreement. Places reliance on “Shajar Islam v. Muhammad Siddique
and 2 others” (PLD 2007 SC 45) as well as “Mrs. Azra Riaz v.
Additional District Judge and others” (2021 CLC 623 Lahore) to
support his contentions and conclude that the learned fora below
have rightly rendered the impugned findings.
4.
Arguments heard. Record perused.
5.
The sole legal question involved in the matter to be examined
by this Court is whether the eviction petition by a co-owner of the
property, without partition by metes and bounds, against another co-
W.P. No.382/2016 4
owner is maintainable more particularly when the said partition has
not been proved in accordance with law.
6.
It would be imperative to observe that it is settled proposition
of law that co-owners of a particular property are owner of each and
every inch of the joint property as long as the same is partitioned
either privately or through the recognized legal modes, as the case
may be. In the instant case, it has been argued on behalf of
respondent No.3 with much vehemence that the partition through the
private family settlement has been effected, inter se, the parties and
has become past and closed transaction and cannot be retracted or
allowed to be impeached directly and/or indirectly. There is no cavil
to the proposition that a family settlement and partition can be
reached at privately by the parties and courts of law have recognized
such private partition, however, same requires some degree of
recognition under the law or through the conduct of the parties.
Guidance in this regard can be sought from case titled as “Allah Dad
and 3 others v. Dhuman Khan and 10 others” (2005 SCMR 564) in
which the august Supreme Court has held as under:
“11….It is to be seen that the object behind the
family settlement is always to settle existing or
future dispute of the property amongst the
members of family and to create goodwill and
avoid future disputes between the successor in
interest. The bona fide transaction of family
settlement would be binding on the parties and if
the settlement by conduct of parties, is capable of
receiving constant recognition for a long time, the
right to assert under the agreement must not be
subsequently allowed to be impeached and courts
may not reject the family settlement on technical
grounds.”
(Emphasis Supplied)
Having highlighted the importance of a family settlement receiving
constant recognition by the conduct of the parties, it is imperative to
note that there is also no cavil to the proposition that it is not
W.P. No.382/2016 5
necessary for the landlord to be landowner in order to establish
tenancy relationship, however, the instant case is neither a usual case
of dispute between the two co-owners qua their joint property
forming part of a settlement nor simple eviction proceedings initiated
by one co-owners of the rented premises against a third party (a
tenant) on the basis of family settlement, rather it is a case where one
of the co-owners asserts herself to be the exclusive owner of the
rented premises as well as landlady thereof, on the basis of the
private family settlement, which admittedly was later rescinded by
the tenancy agreement and it is on the strength of the subsequent
tenancy agreement that the said co-owner (respondent No.3) is
seeking eviction of another co-owner (the petitioner), therefore, in the
instant case, veracity of both the private family settlement as well as
the tenancy agreement is to be carefully ascertained in order to reach
a just conclusion.
7.
Since it was respondent No.3 who had invoked the jurisdiction
of the learned Rent Tribunal, in view of the peculiar features of the
case it was obligatory upon her to have proved the existence as to the
factum of the relationship of landlady and tenant between herself and
the petitioner, by first establishing the genuineness of private family
settlement followed by its rescission through the execution of the
tenancy agreement and settlement and payment of rent in furtherance
thereof. Therefore, before proceedings further, it is imperative to
examine the description of the property left by the deceased including
the rented premises as per the private family settlement which reads
as under:
"اوراجدیئادذموکرہوکب حصصرقمانےکدرایمنمیسقترکدایےہ۔میسقتاجدیئادیکلیصفت
درج ذلی ےہ۔
1۔ دواکن ربمن 1)اپن رفوش( اب امیپشئ امشًال44ٹف ونجًاب44ٹف رشًاق19ٹف 5اچن رغًاب19
ٹف دحبود ارہعب امشًالیلگ اشرع اعم ونجًابدواکن امسمت رثای ااجعز رشاق ڑسک رغًابامرٹیک راؤ ریش
دمحم دبع ااتسلر ودل دبعاالسلم رقم ربمن 2یک تیکلم یک وہ ی
W.P. No.382/2016 6
2۔دواکن ربمن 2)الاھک وفوٹ وٹسڈوی( ابامیپشئ امشًال44ٹف ونجًاب 44ٹف رشًاق'9"-2ٹفرغًاب
9ٹفدحبود ارہعب امشًالدواکن ربمن1ہیکلم دبعااتسلر ونجًابدواکن ربمن3ہیکلم دبع ارلنمح رشًاق
ڑسک رغًابامرٹیک راؤ ریش دمحم امسمت رثای ااجعز درتخ دبعاالسلم یک تیکلم وہ یگ۔
3۔ دواکن ربمن 3)رنمح وہلٹ( اب امیپشئ امشًال44ٹف ونجًاب"6۔ '40ٹف رشًاق"5۔'19ٹف
رغًاب19ٹف دحبود ارہعب امشًالدواکن ربمن 2ہیکلم امسمت رثای ااجعز ونجابرپاان الری اڈہ رشاق ڑسک
رغًابامرٹیک راؤ ریش دمحم دبعارلنمح ودل دبعاالسلم یک تیکلم وہ یگ۔"
(Emphasis Supplied)
Whereas in para 2 of the eviction petition, respondent No. 3 stated as
under:
" ہی ہک لبق ازںی دواکن ذموکہ ابال ومشبل درگیاچر دواکانتامنیب اسہلئ اور ربادران دبعارلامحن وئسمل
اہیل و دبعااتسلر رتشمک ںیھت نج یک ابیمہ میسقت ومرہخ 09.03.2005وک لمع ںیم آیئ اوراسہلئ وک
دوونں اھبویئں ےک درایمن دواکن دی یئگ نکیل دعبہ دجدی ابیمہ میسقت ےک تحت دواکن ذموکرہ ابال اسہلئ
وک دی یئگاور اس تبسنداکن ذموکرہ ابال اک رکاہی غلبم دس زہار روہیپ روربو وگااہن ےط اپای اور اکی
رکاہی انہم ذموکرہ ابال رحتری و لیمکت اپای سج رپ اسہلئ اور وئسمل اہیل ےن اےنپ ادبعلات تبث ےئک اور
وگااہن ےن یھب وج ہک دمحم ایفض ودل ضیف روسل وسجال ااسحن اہلل ودل دمحم اونر وغریاور ااجعز ادمح ودل
احیج دہاتی اہلل خیش ںیہ ےن اےنپ اےنپ دطختس تبث ےئک۔"
(Emphasis Supplied)
Thus, it is the stance of respondent No. 3 herself that the private
family settlement was overridden by some fresh settlement
agreement. This would, as per her own averment, has the effect of
rescission of the private family settlement, hence, the same is no
more in the field and it lost the long standing recognition of the
parties through their conduct, if any, and hence, of no legal
significance in terms of the dicta laid down in case of Allah Dad
supra. Even otherwise, putting para No.2 of the eviction petition in
juxtaposition with above referred portion of the private family
settlement reveals that not only it is the stance of respondent No. 3
herself that the private family settlement was overridden by some
fresh settlement agreement but there is material contradiction qua the
number of shops forming part of the property left by the deceased. In
W.P. No.382/2016 7
the private family settlement, the total number of shops are recorded
as three (03) whereas in the tenancy agreement as well as the eviction
petition, same have been mentioned as five (05). Moreover, it is also
unclear as to how the property number assigned to the rented
premises in the private family settlement was changed from Shop No.
2 to Shop No.5 in the tenancy agreement. Both these facts raise
serious doubts as to veracity of the claim of respondent No.3 qua
which no explanation is available in the tenancy agreement or the
eviction petition. In this regard, learned counsel for the petitioner
submits that the petitioner further partitioned one of the three shops
given to him, under the private family settlement, into two portions
and in this manner the number of shops were rearranged, which
argument too fails inasmuch as the sub-division of the shop
belonging to the petitioner under private family settlement, into two
portions, will make the total number of shops 04 and not 05 as per
the contents of the eviction petition. It is also imperative to note that
as regards the fresh partition/settlement agreement, neither in the
pleadings it has been stated as to whether the same was oral or
written nor any evidence, oral or documentary, has been produced to
prove the same. When confronted, learned counsel for respondent
No.3 tried to explain the anomaly by stating that the tenancy
agreement embodies the dual nature of being the fresh family
settlement as well as the tenancy agreement. As per the established
canons of construction of documents/agreements, the heading or the
title of a document is not the exclusive or sole factor for determining
the nature of a document rather the doctrine of pith and substance can
be applied for determining the nature of such document. In the instant
case, perusal of tenancy agreement brings it to the fore that not only
the title of the agreement but the contents of the agreement also
indicate that the same has been executed as a tenancy agreement
albeit improperly and vaguely referring to the title of respondent
No.3 as well as the description of the rented premises and hence,
W.P. No.382/2016 8
cannot be construed as a private or family partition/settlement as no
clause to his effect has been embodied therein, therefore, the
argument fails to hold much water and falls through. Even otherwise,
the argument fails to gain any traction from another perspective as
the private family settlement was purportedly executed between the
two brothers and the sister whereas the tenancy agreement has been
executed between the petitioner and respondent No.3 and the third
stakeholder (Abdul Sattar or his legal heirs who is the third child of
the deceased) is not a party to the purported tenancy-cum-family
settlement agreement. Similarly, no evidence has been produced in
this regard as to show that the later and/or subsequent settlement has
been executed upon by the implied or explicit conduct of the parties.
Hence, even if it is assumed that the private family settlement is of
legal force, respondent No.3 could not establish that the tenancy
agreement on the basis of which she invoked the jurisdiction of the
learned Rent Tribunal was in furtherance of the same with slight
overriding effect qua the number of the rented premises.
8.
The above mentioned discussion takes this Court to the kernel
of the dispute which is to examine whether the tenancy relationship
existed between the petitioner and respondent No.3 in respect of the
rented premises envisaged under the tenancy agreement. Respondent
No. 3 has produced the private family settlement as Exh-A2 and
tenancy agreement as Exh-A3 as documentary evidence and also
produced AW-1 to AW/3 in the witness box including herself
(AW-1). While AW-3 is the marginal witnesses of the tenancy
agreement whereas AW-2 is the identifier and husband of respondent
No. 3 and not the marginal witness of the tenancy agreement. The
second marginal witness of the tenancy agreement namely, Ihsan
Ullah son of Muhammad Anwar has not been produced and no
explanation in this regard has been furnished. Perusal of the tenancy
agreement shows that the stamp paper used for the preparation of the
tenancy agreement has been issued by Sultan Mehmood/stamp
W.P. No.382/2016 9
vendor. AW-1 stated during the cross-examination that the tenancy
agreement was written by said Sultan Mehmood. The evidence of
Sultan Mehmood being the stamp vendor as well as the scribe of the
tenancy agreement is pivotal to the case of respondent No. 3, who has
neither been produced nor summoned through the process of the trial
court. Similarly, it has been noticed that Riaz Ahmed and Abdul
Hameed, both sons of Chaudhary Abdul Latif as well as above
referred Ihsan Ullah were the mediators who purportedly helped the
parties to reach the private family settlement. These persons in
general and Ihsan Ullah in particular were also never produced. Infact, beside the scribe and stamp vendor of the document, namely,
Sultan Mehmood, and said Ihsan Ullah were the main witnesses
inasmuch as the latter is the only witnesses who attested both the
private family settlement as well as the tenancy agreement. Both
these persons were never produced without any explanation and in
this manner, the best evidence has been withheld, which results in
drawing adverse inference against respondent No. 3.
9.
Having analyzed the evidence on record hereinabove, it can be
easily inferred that an unproven and unsubstantiated tenancy
agreement cum family settlement cannot be made basis of eviction
proceedings against the petitioner who is admittedly the co-owner. In
this regard, this Court is fortified by the ratio laid down in case of
“Mirza Adam Khan v. Muhammad Sultan” (PLD 1975 SC 9), where
a dispute arose as to whether a co-owner who is in possession of the
property in excess of his share and who is recorded as a tenant of
excess portion could be ejected from the premises under the
provisions of the Urban Rent Restriction Ordinance, 1959. The
august Court answered in negative in the following manner:
“........ it is submitted by the learned counsel for the
respondent that the status of the appellant is to be
determined by the true nature of his tenure as a
person who has inherited the property under the
Muslim Law and not by the extraneous factors of
W.P. No.382/2016 10
paying rent to another co-owner or to the receiver,
or the fact that the Commissioner appointed in the
partition suit determined the rental value of the
portion of the property occupied by the appellant.
We are inclined to agree with this submission. We
think that the High Court has rightly observed that
on the death of a Muslim intestate his estate
devolves upon his heirs who succeed to it in
specific undivided shares in proportion to their
inheritance, and each heir becomes the owner of a
definite fraction of every part of the estate until
partition takes place. 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 coowners 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 this position as co-owner and judgment-debtor,
he is liable to be dealt with under rule 95 of Order
XXI.”
(Emphasis Supplied)
Similarly, in case reported as “Rehmatullah v. Ali Muhammad and
another” (1983 SCMR 1064), the Hon’ble Apex Court held that if
the relationship between the parties is such that it cannot be decided
without first determining the landlord’s title, then the matter may be
decided against the landlord who may be asked to approach the
appropriate forum to first determine the question of his title as the
Rent Tribunal is not competent to decide the question of title.
10. This Court is mindful of the legal position that in exercise of
constitutional jurisdiction, utmost reluctance should be exercised to
interfere in the concurrent findings rendered by the forums below,
however, the said rule is neither an invariable nor an absolute norm,
rather the same is subject to the overarching principle that
interference can be made in concurrent findings where such findings
are perverse and are likely to result in miscarriage of justice. In the
W.P. No.382/2016 11
instant case, both the forums below have erred in appreciating the
material evidence available on record and adjudicating the actual
controversy between the parties in its true perspective as the above
referred analysis of evidentiary resume of the case, in the light of
pleadings of the parties and the arguments advanced at bar, amply
clarifies that respondent No. 3 fell short of discharging the onus to
prove tenancy relationship between herself and the petitioner or even
her exclusive title to the rented premises to bring her case in the
purview of the cases relied upon by the learned counsel for
respondent No.3 including case of Shajar Islam supra. On the
contrary, it is admitted on both hands that the rented premises fell
within and formed part of the property inherited by the petitioner and
respondent No.3 along their brother Abdul Sattar (late). It is
uncertain whether the private partition has been effected through the
private family settlement and recognized by the parties or not as
respondent No.3 herself admits that the private family settlement has
been rescinded and/or overridden and in the absence of fact that the
private family settlement is proved in accordance with law, question
of execution of tenancy agreement between the parties as co-owners
does not arise. Therefore, eviction petition by respondent No.3, being
a co-owner of inherited property, on the basis of private family
settlement without proving the same, against another co-owner (the
petitioner) was not even maintainable before the learned Rent
Tribunal under the provisions of the Act, 2009. Having observed so,
it should not be apt to further comment on this aspect lest the case of
the either of the parties be prejudiced as the partition through the
private family settlement is neither a fact-in-issue in the instant lis
nor it can be in the eviction petition as it would be beyond the
jurisdictional scope of eviction proceedings, under the Act, 2009, to
indirectly or obliquely sanction or otherwise discard a private family
settlement.
W.P. No.382/2016 12
11. In view of the what has been discussed above, the instant writ
petition is allowed and the impugned findings of the learned Rent
Tribunal as well as the Appellate Court below are set aside.
12. Before parting with, it is clarified that respondent No.3, who is
admittedly co-owner of the property left by the deceased of which the
rented premise is part, may avail alternate remedies available to her
under the law, inter alia, by instituting suit for recovery of possession
of her lawful share in the property as well as the mesne profits thereof
and if such proceedings are initiated by respondent No.3 under the
law, observations and findings of this Court in the present
constitutional petition shall not adversely affect the said proceedings.
(ANWAAR HUSSAIN)
JUDGE
Approved for reporting
JUDGE
Announced in Open Court on _________.