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Civil Petition for Special Leave to Appeal No. 196 of 1973, decided on 6th November 1973.
(From the judgment and order dated 9‑5‑1973 of the Lahore High Court, Lahore passed in S. A. Q. No. 114 of 1973).
‑‑ Appreciation of evidence‑Supreme Court not a Court of error in regard to appreciation of evidence.
--‑‑ Existence of a family Settlement, and requirement of shop for bona fide use of owner‑Questions of fact‑Concurrent findings on questions of fact by Courts below‑Not open to review by Supreme Court by way of appreciation of evidence‑Leave refused‑Con stitution of Pakistan (1973), Art. 185(3).
Sh. Ghias Muhammad, Senior Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioners.
Amjad Khan, Advocate Supreme Court instructed by Inayat Hussain Shah, Advocate‑on‑Record for Respondents.
Date of hearing : 6th November 1973.
This petition for special leave is directed against the order dated y‑5‑1973, of a learned Single Judge of the Lahore High Court in S. A. V. No. 114 of 1973, maintaining the concurrent orders of the Rent Controller and the Appellate Authority fur the ejectment of the peti tioners herein from a shop situate in wladi a‑o Cloth Market, Lyallpur.
2. The respondents herein, as successors‑in‑interest of Abdul Ghani, deceased, applied for the ejectment of the petitioners from the shop in dispute alleging that they were in arrears of rent, had damaged the shop, and that the same was required for the bona fide personal use of the respon dents. The petitioners contested the proceedings on a number of pleas, of which the following two are material for the purposes of this order, namely:‑
(1) that Abdul Ghani, predecessor‑in‑interest of the respondents was one of the two co‑owners of the shop, the other co‑owner being his brother Badar Din, the two brothers together constituted the landlord and therefore, the application for ejectment by the heirs of Abdul Ghani without the joinder of Badar Din was not competent ; and
(2) that the shop in dispute was not required for the bona fide use of the respondents.
3. On the first point, the concurrent findings of the Courts including the High Court is that under a private family settlement between the parties, Badar Din and the heirs of Abdul Ghani, the shop in dispute along with a number of other shops had fallen to the share of Abdul Ghani, and that the shop is required for the bona fide use of the respondents.
4. Learned counsel for the petitioners vainly attempted to assail those findings of facts. It was urged that the original rent note dated 5‑1‑1967 in respect of the shop in dispute was executed by the petitioners jointly in favour of Badar Din and his nephew Anwar Saeed (respondent No. 2) as representing his father Abdul Ghani deceased and that the notice for ejectment was initially issued on 19‑4‑1968 at the instance of Badar Din only. This according to learned counsel made it manifest that Badar Din was at least a co‑owner in the shop in dispute. Further that there was no proof of any partition between the two branches of the family of the landlord subsequent to the said notice and before the filing of application for eject ment. This according to learned counsel also reflected adversely on the bona fides of the respondents' claim that the shop was required for their personal use.
5. It appears that during the pendency of the ejectment proceedings against the petitioners, the respondents brought a suit for a declaration that under a family settlement there has been partition between the two branches of the family by which the shop in dispute along with some other shops had taken to the share of the respondents. In that suit, a consent decree was passed which plainly was against the interest of Badar Din in that he relinquished his interest and title in the shop in dispute and the other shops falling to the share of the heirs of Abdul Ghani. This was cogent evidence to support the respondents' plea about the family settlement under which the strop‑ in dispute fell to the share of the respondents. This being a concurrent finding on question of fact by the Courts below, precludes this Court to review the evidence afresh. This is not a Court of error in regard 't to appreciation of evidence.
6. So also about the second plea as to the requirement of the shop for the bona fide use of the respondents, which again is one of fact and because e of the concurrent finding of the Courts below cannot be questioned in this Court.
7. There is no merit in this petition which is hereby dismissed.
8. The petitioners shall vacate the shop by or before on the 31st of January 1974, provided they shall pay within fifteen days from today arrears of rent, if any, and future rent in respect of the remainder period until the terminal date, failing which they shall be liable to eviction on the expiry of fifteen days from today.
Leave refused.
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