1989 M L D 2949
[Lahore]
Before Amjad Khan, J
ABDUL LATIF--Petitioner
Versus
Mst. ZAINAB BIBI and others--Respondents
Civil Revision No.728/D of 1986 decided on 18th February, 1989.
Civil Procedure Code (V of 1908)--
---S.9--Suit for possession--Property in dispute was transferred to plaintiff respondents
by Settlement Department and PTO/PTD were issued in their names--Parties started
partnership business jointly with petitioner in respect of property in dispute and
consequent upon dissolution of partnership on account of serious difference acquired
possession of property from petitioner as he was merely a licensee which position had
also come to an end--Contentions on behalf of petitioner that suit for possession of
property was not competent and same should have been maintained for dissolution or
winding up of partnership; that petitioner was tenant and was liable to be ejected by a
Rent Controller and Civil Court did not have any jurisdiction to exercise over him and
that mother of a deceased plaintiff-respondent ought to have been joined in suit upon
his death -and her absence rendered suit incompetent were repelled--Concurrent
findings of facts by Courts below showed that a portion of property in dispute was put
up to use for carrying on partnership business and did not in itself become a
partnership property as such there was no justification for petitioner-defendant to
remain in possession of property held by him as a mere licensee--No evidence with
respect to tenancy was led in suit by defendant/petitioner regarding alleged tenancy
and jurisdiction of Civil Court--Suit as such was rightly entertained and decided by
Civil Court--No title was shown to have been vested in mother of plaintiff-respondent
at time of impleadment of legal representatives' whereabout objection was not raised at
any time by Courts below--Pica of defendant -petitioner was foreclosed--Decree
passed by Courts below in suit upheld in circumstances.
Haji Dildar Khan for Petitioner.
Jariullah Khan for Respondents.
Date of hearing: 18th February, 1989.
JUDGMENT
One Abdul Majid alongwith Muhammad Yousaf was transferred property No.P.506 and
506-A (previously designated as property No.44/1) New Civil Lines, Faisalabad by the
Settlement Department and P.T.O. and P.T.D. were also issued in their favour. Abdul
Majid died and his legal-representatives joined Muhammad Yousaf in maintaining a
suit for ejectment against the petitioner on the plea that a partnership business of Silk
power-looms started by them jointly with him in a portion of this property had been
closed in consequence of dissolution of partnership on account of serious differences
arisen between them 7/8 months before and thereby the position of the defendant as a
licensee had also come to end. Mesne-profits for the period of his occupation were also
claimed alongwith those until recovery of possession. Muhammad Yousaf died during
the pendency of the suit and his legal-representatives were impleaded in his stead to
continue the suit. Defendant contested the suit by controverting the claim of the
plaintiffs and also raised a number of technical objections. A total of eight issues,
inclusive of the relief, were set down to be tried. Parties led their evidence, upon the
consideration whereof trial Court upheld the title and claim of the plaintiffs into
decreeing their suit on the basis of its judgment dated 7-5-1984.
2. Defendant's appeal there against was assigned to a learned Additional District Judge
who re-appraised the evidence and upon affirming the findings of the trial Court
proceeded to dismiss the appeal by his judgment dated 26-1-1986 by upholding the
decree of the trial Court. He has now come up to this Court on revision.
3. After candidly conceding that title in the property stands settled in favour of the
plaintiffs-respondents up to the Supreme Court, learned counsel has raised the
following contentions:--
(i) that the suit in its present form was not competent and should have been .
maintained for dissolution or winding up of the partnership;
(ii) that, else, the petitioner is a tenant liable -to be ejected in accordance with
the law by a Rent Controller and the civil Court did not have any jurisdiction to
exercise over him; and,
(iii) that the mother of Muhammad Yousaf who was also one of his legal heirs
ought to have joined the suit upon his death and her absence renders the suit
incompetent.
After giving due consideration to these contentions I have not been able to find
substance in any of them. The first contention is rendered untenable on the facts
concurrently found below to the effect that a portion of the property in dispute was put
to use for carrying on partnership-business and did not itself A become a partnership-
property so that with the termination of the project of such a business there did not
remain any justification for the defendant to remain in possession of the property held
by him as a mere licensee. Averments to such an effect made in paras 3 to 5 of the
plaint have been denied in the written statement with the further assertion that the
power-looms and the factory happen to be the private and exclusive property of the
defendant and while reiterating it in para 9 thereof, he went on to specifically assert
that there has never been any partnership between him and the plaintiffs so that there
did not arise any question of the dissolution thereof. He is precluded from taking up a
different stand now and, hence, the contention is repelled.
As regards the alleged tenancy and the jurisdiction of the civil Court, there is no
evidence with regard to the defendant's tenancy led in the suit and no indication is
available about his being a person liable to fall within the purview of section 30 of the
Displaced Persons (Compensation and Rehabilitation) Act, 1958 for the suit property
indisputably transferred in favour of the plaintiffs. Actually, the defendant-petitioner
does not have even a semblance of right or justification to hold the possession and the
suit against him has been rightly entertained and decided by the civil Court under
section 9 of the C.P.C. This contention also fails.
The third objection with regard to the non-joinder of the mother of Muhammad Yousaf
is not tenable either in fact or law. No title is shown to have either vested ever in such a
lady or possessed by her at the time of impleadment the legal-representatives where
about objection does not seem to have been raised at any time in the Courts below.
Section 99 of the C.P.C. forecloses such a plea after the suit has been fought-out on
merits which do not get affected with the absence of one or the other person through
whom the petitioner does not have to be claiming souse title and muchless may such an
absence have affected the jurisdiction of the Court. The contention, even if it were to
be found sustainable on facts, would be only inconsequential so far as the petitioner is
concerned and cannot entail reversal of the decrees adverse to the petitioner passed
below. The same is, therefore, rejected.
4. No other point has been raised for consideration.
5. Result of the foregoing is that the concurrent decrees passed by the two Courts
below are justified on the record and no interference is called for in exercise of
revisional jurisdiction. Hence, dismissed with costs.
M.Y.H./A-664/L
Petition dismissed.
;
