MUHAMMAD HANIF and another vs MUHAMMAD JAMIL TURK and 5 others

ORDER

' RANA BHAGWANDAS, J.---Petitioners seek leave to appeal against the Sindh High Court judgment dated 10-11-1999 setting aside the dismissal order by learned Rent Controller and allowing ejectment of the petitioners from the demised premises on the ground of bona fide requirement of the premises for self-occupation.

2. Petitioner No,1 was inducted as tenant in Room No, 6, in Turk Compound on Plot No,K-11/41-P, Chakiwara Road No,2, Karachi, vide tenancy agreement dated 9-1-1973 by Ali Muhammad Turk, predecessor-ininterest of the respondents. Petitioner has been using premises as a shop under the name and style of Javed Karyana Store. After the death of Ali Muhammad Turk on 18-1-1992, the property devolved on his widow, two sons and three daughters by way of inheritance. Respondent No,1 for self and as attorney of other co-sharers issued a legal notice dated 19-3-1995 calling upon petitioner Muhammad Hanif to vacate the demised premises within thirty days as the same were needed for accommodating the respondents. In their reply to the legal notice, both the petitioners admitted the tenancy and claimed that it was let out to both of them who had made construction thereon and obtained electricity connection from their own resources. They alleged that huge amount was paid to the landlord by way of Pagri with the understanding that the same would be returned at the time of vacating the demised premises.

3. Dissatisfied with such cold attitude respondents filed ejectment case against the petitioners stating that after a few months of the commencement of tenancy petitioner Muhammad Hanif had handed over the premises to his brother, petitioner No,2, without any written consent of the landlord. This act was seriously objected to by the original landlord but the respondent No,1 persuaded him to ignore the situation which was accepted in good faith. Ejectment of the petitioners was invoked on the averments that respondent No,1 was living in a single room with his wife and two children; that respondent No,2 being old widow aged about 65 years required a separate room for a peaceful living; that respondent No,3 desired to settle in Turk Compound as she was facing hardship in her husband's flat on account of congestion; that respondent No,5 also needed accommodation as he was to be married. It may be clarified that the respondents explained in the ejectment petition that the premises were essentially residential in nature and Room No, 6 was an essential part of the. Compound but was allowed to be used as a shop.

4. Petitioners resisted the eviction on a number of grounds with an assertion that they had paid a sum of Rs,1,00,000 to the deceased ancestor of the respondents by way of Pagri which was returnable at the time of vacating the premises.

5. On assessm ent of evidence, learned Rent Controller dismissed the ejectment plea which was allowed by the learned High Court in the First Rent Appeal leading to the instant petition.

6. Mr. Ali Akbar, Advocate Supreme Court and Advocate-on-Record vehemently contended that in fact the entire property originally, belonged to one Muhammad, on whose death it was inherited by his three sons namely, Ali Muhammad, Hussain, Yousaf and a daughter Mst. Aisha, which was not apportioned among the legal heirs and remained joint property. Learned counsel devolved the argument that the respondents being the descendants of one of the co-sharers could not seek eviction of the petitioners without impleading other co-sharers as party to the rent case. In this connection learned counsel invited our attention to suit for partition and mesne profits filed by Mst.

Rehmat Bai and other descendants of Yousuf against Ali Muhammad, Aisha, Muhammad Yousuf, Aisha wife of Hussain and Hawa daughter of Hussain, which having been once decreed was impugned before appellate forums and on remand is said to be new pending before a Civil Court.

Emphasis of the learned counsel is that since other co-sharers in the property have sought partition of the suit property, respondents in law could not seek ejectment of the petitioners.

7. Submission of the learned counsel is misconceived and ill-founded as no ground to this effect was taken, in the written statement of the petitioners filed as far back as January, 1996. Naturally, no plea to this effect was raised in the evidence of the petitioners and not agitated before the lower Court as well as the High Court. This submission being founded on factual controversy cannot legally be advanced before this Court for the first time. We enquired from the learned counsel whether this ground was agitated before the High Court to which he replied in the affirmative but he was unable to point out any such ground in the memorandum of appeal as well as judgment of the High Court. Argument is, therefore, liable to be dismissed on this sole account.

8. Even on merits, if the co-sharers succeed in the partition suit, demised premises being part and parcel of the joint property would be partitioned between the co-sharers according to law. Learned counsel relied upon a judgment of this Court in Abdul Ghani v. Abrar Hussain (1999 SCM R 348) in support of his contention but in our view the principle laid down in the precedent case is not attracted in the circumstances of the case. On the contrary, general rule of law has been that a co- sharer can file ejectment proceedings against a tenant without impleading other co-sharers. The wisdom behind such principle is that co-sharer acts on behalf of and represents the interest of all the co-owners of the property.

9. Learned counsel seriously assailed the finding of the High Court on the question of personal requirement of the premises for bona fide use and occupation of the respondents and urged that learned High Court committed an error of law by reversing the judgment of the Rent Controller, Surprisingly, learned counsel seriously contended that in the event of conflict of judgment the view taken by the trial Court should be preferred rather than the view expressed by the appellate forum.

Learned counsel relied upon judgment reported as Madan Gopal v. Maran Bepari (PLD 1969 SC 617) in support of this novel argument which rather goes against the argument advanced by him.

Finding of Appellate Court in conflict with the finding of trial Court can only be discarded if it is not based on correct appreciation and analysis of the evidence; is contrary to the material on record; and arbitrary or perverse on the face of it. In our view the judgment impugned in this petition does not suffer from any of such infirmities and rather the High Court has examined, scrutinized and analysed the evidence in its true perspective which can hardly be disturbed. Evasive replies of the petitioner's witness as regards the bona fide requirement of the premises by respondents were adequate enough to warrant an inference that they failed to refute the plea advanced by the respondents. At any event, there is nothing on record to reflect that the desire and need of the respondents for additional accommodation for self-occupation was tainted with malice or ulterior motive. Reliance on Mulakh Bano v. Gohar Bano (1976 SCM R 314) and Muhammad Amir v. Khan Bahadur (PLD 1996 SC 267) in this connection is of no assistance to the petitioners, as both the cases are distinguishable on facts.

10. For the aforesaid facts and reasons we are of the considered view that learned High Court by allowing the appeal of the respondents and directing eviction of the petitioners from the demised premises did not commit any illegality justifying interference by this Court in its Constitutional jurisdiction.

11. Resultantly, petition fails and is hereby dismissed. Leave to appeal is refused. Petitioners are, however, allowed four months' time to vacate the demised premises subject to payment of usual rent and other charges payable by them.