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Civil Petition for Special Leave to Appeal No. 8 of 1975, decided on 12th March, 1980.

(On appeal from the judgment and order of the Lahore High Court dated 25‑10‑1974 in S. A. O. No. 9 of 1974).

----S. 13(2) (i)‑Tenant persistently refusing to acknowledge respondent as landlord and paying him rent notwithstanding former co‑owner's direction to attorn to respondent‑Finding of lower Courts as to com mission of default in payment of rent by petitioner, held, not open to question.

M. Aslam Khan, Advocate and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Kh. Mushtaq Ahmad for Respondent.

Date of hearing : 12th March, 1980.

‑The dispute in this petition for leave relates to a shop in Anarkali in Lahore and the three Courts below have ordered the petitioner's eviction on the ground of non‑payment of rent and on the ground that the respondent who is the owner of the shop requires it in good faith for his own business.

In order to get over the concurrent findings of the three Courts that the petitioner was in habitual default in the payment of rent, learned counsel stated that the house in which the shop in dispute is situated had originally been owned by the brother‑in‑law of the petitioner, who had transferred it to the respondent and four other persons including one Abdul Karim. Now, whilst the building was the joint property of the respondent and the others they had sought the petitioner's eviction but that application had been dismissed. Thereafter they had partitioned the building and the shop in dispute passed to the share of the respondent, who had called upon the petitioner to pay the rent to him. Instead the petitioner offered rent to one Abdul Karim one of the former co‑owners, But Abdul Karim also directed the petitioner to attorn to the. respondent. As the petitioner persisted in not acknowledging the respondent's title, the Courts below have rightly held that the petitioner's failure to pay rent amounted to wilful default in the payment of rent.

Learned counsel's only plea was that the partition between the respondent and Abdul Karim and others was collusive but the question whether it was collusive is a question of fact on which the Courts have been unanimous in rejecting the petitioner's plea which we may add does not impress us, it did not impress the Courts below.

Additionally, the respondent has proved that he does not have any other shop and that he wants to run his own business in the shop leased to the petitioner. Therefore, on the law declared by' this Court on this ground alone the petitioner is liable to be evicted and for the reasons given in the judgment under appeal, the petitioner's reliance on the principle of res judicata is totally misconceived.

The petition is without merit and is dismissed.

Petition dismissed.

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