Mst. KHAIRUN NISA through General Attorney vs ABDUL WAHID
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which affirmed the eviction of the petitioner from the upper portion of a shop's roof. The core legal question was whether the petitioner, who denied the landlord-tenant relationship and claimed ownership, could successfully challenge the respondent's title to the disputed roof area, given that the respondent held a Provisional Transfer Order (P.T.O.) for the shop itself. The Supreme Court held that the petition lacked merit and dismissed it. The Court reasoned that the petitioner failed to produce any evidence demonstrating that the disputed roof was not included in the transfer of the shop to the respondent. Establishing a key principle of property interpretation, the Court held that when a building is transferred, its entire superstructure, including the ground and the roof, is normally considered part of that building unless explicitly excluded. As the P.T.O. did not exclude the roof, the respondent's title was upheld, and the eviction order was maintained.
- Does the transfer of a shop via a Provisional Transfer Order include the roof of that shop by default?
- Can a tenant in an eviction proceeding successfully deny the landlord-tenant relationship without evidence of independent title to the premises?
1. ' MUKHTAR AHMED JUNEJO, J.---Petitioner Mst. Khairun Nisa, against whom Rent Application No,139 of 1991 (old No,86 of 1970) was filed, has sought leave to appeal against judgment of the Lahore High Court dated 19-3-1995 delivered in Second Appeal from Order No,7 of 1994.
2. ' Admittedly shop No,4 at Lahore Road, Mianchannu was transferred to respondent Abdul Wahid under a P.T.O. Dated 9-5-1960. Upper portion of roof of said shop is said to be in possession of the petitioner. Rent application was filed by the respondent for eviction of the petitioner from upper portion of roof of said shop on the grounds of non-payment of rent and causing damage to the premises in question. The rent case was contested by the petitioner who denied relationship of landlord and tenant between her and the respondent. The petitioner claimed to be in possession of the premises in litigation as owner.
3. ' After recording evidence of the parties, learned Rent Controller, under his order dated 10-3-1993, accepted the application for ejectment and directed the petitioner to hand over possession of the disputed premises to the respondent. Appeal against said order was dismissed by the District Judge on 20-2-1994, while the second appeal was dismissed by the High Court under the impugned judgment. Hence this petition.
4. ' Mr. Khalil Ahmed, learned counsel for the petitioner argued that the roof in question was disputed property and was not transferred to the respondent. He referred to the P.T.O. In respect of the shop, issued in favour of the respondent and contended that the same did not show if alongwith the shop its roof was also transferred to the respondent.
5. ' In reply to a question by the Court, the learned counsel. For the petitioner could not refer to any document showing directly or impliedly that the disputed roof was transferred to the petitioner. His contention was that upper portion of the adjoining shop was in possession of the petitioner and she was using the place above roof of respondent's shop as Court-yard.
6. While transferring shop No,4 in favour of the respondent, the Settlement Authority did not mention in the P.T.O. That roof of that shop was not transferred or that roof of the shop was not covered by the P.T.O. A Normally, when there is description of a building, its entire superstructure is considered to be part of such building including its ground and its roof. There is nothing to show that the shop transferred to the respondent did not include its roof.
7. ' The petitioner has not been able to make out case for interference with the impugned judgment and this petition stands dismissed.