MAQSOOD AHMED through Legal Heirs and others vs Shiramati BHAGWANI BAI and 3 others
This petition for leave to appeal challenged a High Court judgment dismissing a civil revision against concurrent findings in a suit for possession. The dispute arose over a shop originally declared as evacuee property and allotted to a third party, but subsequently restored to the respondent, the original owner, by the Additional Commissioner. The petitioner, who had been a tenant of the allottee, refused to vacate, claiming tenancy rights and asserting that the respondent’s only remedy was an ejectment petition rather than a civil suit for possession. The Supreme Court held that since the respondent never acknowledged the petitioner as her tenant and the petitioner’s possession was maintained without the owner’s consent, the petitioner was an unauthorized occupant rather than a tenant. The court ruled that the unilateral deposit of rent with the Rent Controller by the petitioner did not create a tenancy relationship. Consequently, the suit for possession was deemed the appropriate legal remedy. The court affirmed the lower courts' decisions, holding that an unauthorized occupant cannot compel a landlord-tenant relationship to defeat a suit for possession.
- Does the unilateral deposit of rent with a Rent Controller by an occupant create a tenancy relationship with the owner?
- Is a suit for possession maintainable against an occupant who claims to be a tenant but lacks the owner's consent?
- Can an unauthorized occupant of a property compel the owner to initiate ejectment proceedings instead of a civil suit for possession?
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred against the judgment, dated 8-4-2002 passed by a learned Single Judge of High Court of Sindh, Sukkur Bench, through which the Civil Revision bearing No,9 of 1992 filed against the concurrent findings of two Courts below in a suit for possession, was dismissed.
2. ' The facts in small compass giving rise to this petition are that one Shri Bhagwani Bai, respondent No,1 herein, was co-sharer in shop bearing No,CS-97 situated in Shahi Bazar, Khairpur, owned by her father. The shop was subsequently, bequeathed to her, by her father through a registered deed dated 3-8-1945. Upon partition of India in 1947, Shri Bhagwani Bai did not migrate therefore, the shop owned by her was declared as non-evacuee but by mistake it was transferred as evacuee property to one Abdullah, respondent No,2 in the present petition. However, the Additional Commissioner, in an appeal filed by Shri Bhagwani Bai cancelled the allotment in favour of said Abdullah and by taking out the shop from compensation pool, restored it to Shri Bhagwani Bai.
3. Maqsood Ahmed (deceased) predecessor-in-interest of the petitioners, who was in possession of shop as tenant of Abdullah refused to hand over the possession of shop to Shri Bhagwani Bai on the ground that the order of cancellation of allotment of shop in the name of Abdullah was under challenge. Consequently, Shri Bhagwani Bai filed a suit for possession of shop which remained unattended till finalization of the litigation on the settlement side. The suit was contested by Maqsood Ahmed the present petitioner on the ground that he was in possession of the shop as tenant of Abdullah and notwithstanding the change of ownership, of shop, he would be deemed to be the tenant of the shop and offered payment of rent to Shri Bhagwani Bai. Ultimately on conclusion of the proceedings in the suit, a decree was passed by the Court of first instance in favour of Shri Bhagwani Bai. The appeal preferred by the petitioner against the judgment and decree passed in the suit was also dismissed and he also remained unsuccessful in the High Court in the revision petition preferred against the judgment of the Appellate Court.
4. ' Learned counsel for the petitioners, without disputing ownership of shop of Shri Bhagwani Bai, has contended that the suit for possession was not maintainable as the petitioner was in possession of the shop in question as tenant and the proper and legal remedy for the landlady was to file an ejectment petition and not a civil suit. Learned counsel argued that since the rent was being regularly deposited by the petitioner with the permission of Rent Controller, Khairpur, therefore, he was not a defaulter to be evicted from the shop.
5. We having heard the learned counsel and perused the record find that the petitioner instead of accepting Shri Bhagwani Bai as his landlady and tendering rent to her, on cancellation of allotment of Abdullah, deposited the rent in treasury with the permission of Rent Controller. Shri Bhagwani Bai also did not acknowledge the petitioner as her tenant in the shop, therefore, in the circumstances, the suit for possession was the proper remedy as the status of the petitioners was not that of a tenant rather he would be deemed to be an unauthorized occupant. The deposit of rent of the shop by the petitioner through the Rent Controller of his own, would not ipso facto make him tenant of the shop in the changed situation and therefore, this possession on the shop without the consent of the owner could not be a source of his tenancy in the property. We have noticed that Shri Bhagwani Bai, the owner of the shop, was being consistently deprived of the legitimate right of possession and fruits of her property and the petitioner while occupying the shop without payment of rent/mesne profit to her was prolonging his possession through the delaying tactics. We having considered the contentions and attending the matter in detail, are of the view that no exception can be taken to the judgment of the High Court.
6. ' For the foregoing reasons, we having found no substance in this petition dismiss the same accordingly. Leave is refused.
Cited by 3 cases
- Dr. MUHAMMAD SAEED---Petitioner vs Sardar MUHAMMAD AKRAM and 2017 MLD 1643
- Dr. Muhammad Saeed vs Sardar Muhammad Akram and others 2017 IHC
- Dr. Muhammad Saeed vs Sardar Muhammad Akram and others 2018 [M] C.L.R. 77