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Civil Petition for Special Leave to Appeal No. 38 of 1974, decided on 8th October 1974.

(On appeal from an ,order of the Lahore High Court made on the 17th of December 1973 in Civil Revision No. 857 of 1973).

----S. 115‑‑Estoppel ‑Petitioner entering property with permission of B and paying rent him or his attorney‑Subsequent declaration of B as alien enemy and take over of his property as enemy property and purchase of such property by respondent, held, entitled respondent to possession of property‑Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965), S. 3‑Petitioner's case, held further, hit by doctrine of estoppel of tenant.

Tanvir Ahmed Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 8th October 1974.

.‑This petition seeks leave to appeal against an order passed by a learned Single Judge of the Lahore High Court on 17‑12‑1973, dismissing in 1fmine a revision petition filed by the petitioner, Hafizullah Khan, for the purpose of obtaining a temporary injunction during the pendency of a declaratory suit instituted by him in respect of Property known as 6‑Racecourse Road, Lahore.

The property in dispute had formed the subject‑matter of prolonged litigation between the Custodian of Evacuee Property and one P. G. Bhandari, who claimed to be its owner. Ultimately, by the judgment reported in P L D 1961 S C 89, this Court held that the Custodian should have granted a declaration to the effect that after the 10th of May 1948, Mr. Bhandari's property was no longer evacuee property, and that as a consequence of this declaration the property in question ceased to be evacuee property from that date. The petitioner entered upon the pro perty in May 1967 as a tenant under P. G. Bhandari in respect of the middle portion of the building on a monthly rent of Rs. 18. However, in 1973 he instituted a suit for a declaration to the effect that he was in possession of this property, that the judgment of the Supreme Court, referred to above, was obtained by P. G. Bhandari by fraud and conceal ment and suppression of facts, and was, therefore, void, without jurisdiction and of no legal effect; and that as a consequence the Enemy Property Management Board had no jurisdiction to take over the same on the migration of P. G. Bhandari to India after the 1965 war. The petitioner further claimed that the property being evacuee property, he was entitled to seek its transfer on the basis of his possession. Before the trial Court the petitioner also laid claim to six kanals of open space comprised in the compound of the said property.

The petitioner prayed for a temporary injunction so as to restrain the Central Government and the Enemy Property Management Board, as well as the purchasers of the property from the Board, from interfering with his possession during the pendency of the suit. The learned Senior Civil Judge granted the necessary injunction in respect of the petitioner, but refused the same in relation to the six kanals of open space. Thereupon, the petitioner as well as the respondents filed appeals which came up before the learned Addi tional District Judge, Lahore. He allowed the appeal of the respondents and dismissed the petitioner's application for temporary injunction in its entirety. He observed that the petitioner had apparently entered the property as a tenant of Mr. Bhandari and could not, therefore, attack his title. He further held that the question of Mr. Bhandari's ownership of the property already stood decided by the Supreme Court and on Mr. Bhandari's departure the property had been taken over by the Enemy Property Management Board. In these circumstances, the learned Additional District Judge thought that the petitioner had not made out a prima facie case in his favour.

Aggrieved by the appellate orders of the learned Additional District Judge, the petitioner went up in revision to the High Court but his revision petition has been dismissed by a learned Single Judge, as already stated.

In seeking permission to file an appeal against the revisional orders of the High Court. it is submitted by Mr. Abid Hassan Minto that the pro perty in fact originally belonged to Bhandari's wife, and was later gifted by her to her two sons, and that Bhandari practised fraud and misrepresentation for the purpose of obtaining a declaration of his ownership and the non- evacuee character of the property. The learned counsel submits that, in these circumstances, the judgment of the Supreme Court stands vitiated. He also contends that, such being the case, the property continued to be evacuee property, and was illegally taken over by the Enemy Property Management Board on the departure of Bhandari to India. He states that this action has also been challenged on behalf of Bhandari by his Attorney by filing Writ Petition No. 304 of 1972 in the Lahore High Court. Learned counsel contends that the petitioner being in possession of a portion of this evacuee property, he is entitled to its transfer in accordance with the relevant provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and, therefore, the Courts below were in error in refusing the temporary injunction during the pendency of his suit.

We regret we see no merit in these submissions. It is clear that at this stage there is a judgment of the Supreme Court holding the property to be the non‑evacuee property of Bhandari, and the same has now been taken over by the Enemy Property Management Board on the departure of Bhandari to India. The petitioner admits that he entered the property with the permission of Bhandari and paid rent to him or to his Attorney at the rate of Rs. 18 p.m. In these circumstances, the petitioner did not have a prima facie case, especially in view of the doctrine of estoppel contained in section 116 of the Evidence Act. The respondents having purchased the property from the Enemy Property Management Board were entitled to its possession in accordance with the provisions of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. The petitioner's prayer for a temporary injunction has, therefore, been rightly refused.

As a result, this petition fails and is hereby dismissed.

Petition dismissed.

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