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Civil Petition for Special Leave to Appeal No. 1129 of 1975, decided 0. 17th May 1978.

(On appeal from the judgment and order dated 26th November 1977 of the Lahore High Court at Lahore in S. A. O. No. 48 of ‑ 1971).

---S. 13‑Ejectment‑Requirement for personal use‑House allegedly purchased by landlady ostensibly in name of her minor son during pendency of ejectment proceedings‑No evidence adduced in proof of such allegation‑No presumption in circumstances of minor being merely benamidar for landlady‑Minor's father a well placed man and could well afford to purchase such house for landlady's minor son‑ 'No reason, held, to interfere with concurrent findings of fact recorded by Courts below regarding premises in dispute being required by landlady for her personal use and occupation‑in good faith.

Abid Hassan Minto, Advocate Supreme Court instructed by Sh. Masud Akhtar, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 17th May 1973.

,

.‑This is a petition for special leave to appeal from the judgment dated 26th of November 1975 passed by a learned fudge of the Lahore High Court at Lahore, dismissing the S. A. O. No. 48 of 1971 filed by the two petitioners herein, against the respondents.

In brief the relevant facts are that the house in dispute bearing No. 87‑88, Maqam Hayat, Syta Ram Bagh, Sargodha belonged to respondent No. 2 and was held by the petitioners as tenants under them. He however, made a gift of the same in favour of her daughter Mst. Ruqaya Begum respondent No. 1. After the transfer she served a notice on the petitioners in accordance with section 13‑A of the Urban Rent Restriction Ordinance informing them about the transfer.

Afterwards on the 4th of September 1965 she filed an application against the petitioners under section 13 of the Urban Rent Restriction Ordinance for their ejectment from the premises on the ground that they had committed the default in the payment of the rent due to her since February 1958 and also because she required the premises in good faith for her personal use and occupation. Before, the Rent Controller petitioner No. 2 did not appear in spite of service and was proceeded ex parte. However, petitioner No. I in his written reply denied the relationship of landlord and tenant between the parties and contested the application for their ejectment. On the 3rd of July 1970, the Rent Controller, Sargodha found no difficulty in holding from the evidence that the relationship of landlord and tenant between the parties was estab lished. He however, was not satisfied that petitioners‑tenants had committed default in the payment of the rent and that the respondent‑landlady required the premises in good faith for her personal use and occupation. He there fore, dismissed her application for the ejectment of the petitioners. But on appeal the learned District Judge reversed the findings in her favour on both these issues and directed the ejectment of the petitioners. The petitioners therefore, went up in second appeal (S. A. O. No. 48 of 1971) which heard and disposed of by a learned Single Judge of the Lahore High Curt on the 26th of November 1975. He reversed the finding recorded by the learned District Judge in appeal to the effect that the two petitioner were defaulters in the payment of the rent due from them. But at the same time he affirmed his finding on issue No. 5 by holding that the premises is dispute were in good faith required by the landlady for her personal use gad occupation. Hence this petition for special leave to appeal from the judgment by the two petitioners.

We have heard the learned counsel for the petitioners. On issue No. 5, the High Court observed that it was established from the record that at first respondent No. 1 who is a Lady Health Visitor was residing in the Heath Centre located in the premises owned by one Abdullah Khan. Petitioner No. 1 in his written statement had contended that this house was in occupation of respondent No. 1 and was sufficient for her needs. But it appears that during the pendency of the petition for ejectment, in the year 1959 a house situated in Kabarkhana, Sargodha was perchased in the name of Tahir Majid a minor son of respondent No. 1. According to the High Court in that connection certain questions in cross‑examination were put to respondent No. 1 and her witnesses by the petitioners about the purchase of this house. There was however, no suggestion at the time that the house was occupied by respondent No. 1 or that she was living there. This plea was however, introduced for the first time in the evidence of Mehr Allah Yar (R. W. 2) and Meter Khan (R. W. 3) and the petitioner who appeared as his own witness (R. W. 4) in defence. They deposed at the time that respondent No. 1 was living in the house purchased in the name of her son and it transpired that the Health Centre was also shifted from its old premises owned by Abdullah Khan to the house of Tahir Majid son of respondent No. 1. Respondent No. 1 as her own witness (A. W. 2) explained that although she was occupying some room in the house taken on rent from Abdullah Khan in which her office as a Lady Health Visitor was located, she could not accommodate in that portion her husband and children under some rules, Believing this evidence the learned District Judge bad held that respondent bona fide required the premises in dispute for her personal use and occupation. In this connection on a careful consideration of the arguments before him, the learned Judge in Chambers saw no reason to vary the finding of fact recorded by the District Judge. He observed that it was established by the evidence of Mehr Allah Yar (R. W. 2) that the office of respondent No. 1 has since been shifted to the premises owned by her son and that those premises should therefore, be treated as under lease with the Government. Therefore, in the opinion of the learned Judge following the principle on which the District Judge had relied respondent No. 1 could not reside in the house belonging to her son along with her husband let on rent to the Government for the purpose of the Health Centre. In this view of the matter, the High Court concurred with the finding recorded by the learned District Judge on issue No. 5 and dismissed the appeal of the petitioners.

In this Court before us the learned counsel for the petitioner attempted to argue that in reality respondent No. 1 bad herself purchased the other house situated in Kabarkhan, Sargodha in the year 1969 during the pendency of the ejectment proceedings ostensibly in the name of Tahir Majid, her minor son and that she was in fact the beneficial owner by purchase thereof. Bu admittedly there was no evidence adduced to this effect and in the circum stances no presumption could be raised to the effect that her minor son was merely a benamidar for the respondent. We find that her husband namely Raja Majid Ahmad respondent No. 3 and father of her minor son is employed as the Director of Physical Education, Government College, Sargodha who could well afford to purchase this house far her minor son even if he bad no resources of his own. We, therefore, see no reason to interfere with the: concurrent findings of fact recorded by the two Courts against the petitioners on issue No. 5. There is therefore, no force in this petition which is dismissed.

Petition dismissed.

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