Haji ABDUL RASHEED Versus FIDA HUSSAIN
1. The present First Rent Appeal is directed against the ejectment order passed by the learned VIII Senior Civil Judge/Rent Controller Karachi in Rent Case No.932 of 1978 Fida Hussain v. Fazal Hussain by which the ejectment of the appellant has been ordered on the ground of default.
2. The brief facts giving rise to the present .appeal are that the respondent filed ejectment application before the learned Rent Controller inter alia alleging therein that the Opponent/appellant was his tenant in Flat No.23, Second Floor, Khumbati Building Mir Karam Ali Talpur, Karachi, at a monthly rent of Rs.8. That the Appellant had failed to pay rent from 1st Rabiul‑Awwal 1335 to 20th Sufar, 1398. That the appellant has sublet the premises and was getting huge monthly profit out of it.
3. The Opponent in his written statement stated that the property in question was jointly owned by the applicant/respondent and Mst.Fatima Bai who was real mother of the appellant. That there was a dispute between his mother Mst. Fatima Bai and the respondent over accounts, and therefore, his mother had filed a Suit No.169 of 1976 before the High Court against the respondent. It was further stated that the appellant tendered rent to the respondent but he refused to accept on the ground that the opponent's mother as one of the co‑owners of the said property had made allegations against the respondent, and, therefore, he should pay rent to her in order to satisfy her.
4. Under pleadings of the parties the following issues were framed by the learned Rent Controller:‑
(a) Whether the Opponent has committed wilful default in payment of rent?
(b) Whether the Opponent has sublet the premises?
(c) What should the order be?
5. At the trial the respondent examined himself and one Ghulam Abbas, while the appellant examined himself his mother Mst. Fatima Bai, and one Zahair Hussain. That the learned Rent Controller after taking into consideration the evidence led by the parties decided the issue regarding default against the appellant, while issue No.2 regarding subletting was decided against the respondent/appellant.
6. I have heard Mr. Aziz Khan learned counsel appearing for the appellant, Mr. A.R.Mirza learned counsel appearing for the respondent, and have gone through the R & P of the case.
7. It was contended by Mr. Aziz Khan learned counsel for the appellant that the mother of the appellant was co‑sharer in the property and that the appellant had been paying rent to her. That the power of attorney executed by Mst. Fatima Bai mother of the appellant in favour of respondent was cancelled, and looking to the background that a civil suit was filed by her against the respondent for accounts and for her share of property, the learned Rent Controller had erred in ordering ejectment of the appellant. In support of his contention he has relied upon A I R 1982 (Orissa) Page 167.
8. Mr. A.R.Mirza learned counsel for the respondent has contended that the appellant was clearly a defaulter and the Rent Controller had rightly ordered his ejectment from the premises in dispute. It is an admitted position that the building in which the flat in question was located belonged to the respondent, Mst. Fatima Bai the mother of the appellant, and some other co‑sharers. According to the appellant the share of his mother was ?.5 paisas. It is also an admitted position that the respondent was holding power of attorney from the co- owners since 1945, and that one of the co‑owners Mst. Rukayya Bai expired in the year 1967‑68. The property has not been partitioned and it has been admitted by the respondent in cross‑examination that there was nothing in writing to show that all the co‑owners had agreed that the tenants would be his personal tenants.
9. It was also admitted by him that appellant's mother had riled a suit for administration and accounts against him m the High Court, the suit being Suit No. 169 of 1978. That he had filed the ejectment application against the appellant after the suit was filed by Mst.Fatima Bai against him. He had also admitted that Mst.Fatima Bai had sent him a letter and had also served him with a notice through her Advocate and the same documents have been produced as Exs.5/A and 5/B. As far as witness Ghulam Abbas examined by the respondent was concerned his evidence was only on the point of sub‑letting a room bearing No.23 to one Zohair son of Fazal. fie did not state anything with regard to the default allegedly committed by the appellant. The evidence of appellant and his, mother clearly shows that Mst.Fatima Bai mother of the appellant was co‑sharer in the property in question. There was a dispute between her and the respondent and a civil suit was pending before this Court. That the appellant had been paying rent to Mst.Fatima Bai under the instructions of the respondent. Be that as it may, the fact remains that Mst.Fatima Bai was co‑sharer in the building consisting of number of flats and she had a grievance against the respondent regarding the accounts and such suit was filed which is pending in this Court. She has fully supported the appellant, and according to her she had 1/4th share in the building in question. That the appellant had been paying rent to her since 15th March, 1975, which she had received as one of the co‑owners, as the respondent had refused to accept the same on the ground that she was maligning and disgracing him. According to her the respondent was infuriated because of Civil Suit No.169 of 1978 filed by her in the High Court of Sind at Karachi for her share and accounts in the ancestral estate. She has further asserted that the power of attorney given to the respondent by her‑has been revoked and even otherwise it had become null and void after the death of co‑sharer namely Mst.Rukayya Bai. As far as the evidence of Zohair was concerned it was only on the point of sub letting.
10. In view of the above discussion it is clear that the mother of the appellant is co‑sharer in the property in dispute, she has filed a suit against the respondent which is pending in this Court, and that she has opposed the ejectment of the appellant. In South Eastern Roadways v. Satyanarain and Others A I R 1982 (Orissa) 167 it was observed that:‑
11. "Where the other co‑sharers/landlords oppose the eviction of a tenant, the application for eviction filed by one co‑sharer cannot be maintained. The remedy to meet such a situation would be for the co‑sharer to sue for partition, get exclusive title to a part of the tenement, and then apply for eviction from the specified portion. Otherwise, to allow relief of eviction against the wishes of remaining co‑sharers would certainly interfere with their right of enjoyment which would include enjoyment through tenant:"
12. In view of the above discussion and the fact that mother of the appellant was co‑sharer in the property in question, and that she had opposed the ejectment of the appellant, that a civil suit regarding the property in dispute was pending before the High Court at Karachi and the clear assertion of the appellant and his mother that the rent was being received by Mst.Fatima Bai, I am of the considered view that the ejectment application was misconceived and there was no justification for ordering ejectment of the appellant on the ground of default. I, therefore, allow this appeal, set aside the order passed by the learned Rent Controller and dismiss the ejectment application filed by the respondent.
13. I had decided the above appeal on 29‑9‑1987 by a short order and these are the reasons for the same.
14. M.Y.H./F‑61/K Appeal allowed.