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Civil Petition No. 235 of 1979, decided on 7th April 1979.
(On appeal from the judgment and order dated 12th March 1979 of the Lahore High Court at Lahore in S. A. O. No. 124 of 1978).
-- Ss. 13(2)(ii) & 15-Second appeal-Concurrent findings of Courts below based on oral as well as documentary evidence-Held, cannot be interfered with in second appeal.
Sh. Hamid Mukhtar, Advocate Supreme Court and Sh. Ahmad Karim, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing : 7th April 1979.
On the 6th of December 1975, the Rent Con troller, Sargodha ordered the ejectment of the petitioner from the premises in dispute. The order was upheld in first appeal rejected by the District Judge, Sargodha on 12th of February 1978, and also affirmed in second appeal dismissed by a learned Judge of the Lahore High Court at Lahore on the 12th of March, 1979. This is a petition for special leave from the order.
The dispute in this case is concerning the property consisting of a hotel along with the land underneath forming a part of Khasra No. 37 situated on Shahpur-Khushab Road near Octroi Post No. 1 Sargodha. The respon dent made the application for ejectment of the petitioner from the premises alleging that the latter was a tenant under him of the property and was liable to ejectment under section 13 of the Urban Rent Restriction Ordinance 1959, on the ground that he had failed to pay or tender the rent due to him for the premises and also because he had illegally affected unauthorised material alterations in the property without his consent. The petitioner in his reply to the application, however, denied the relationship of landlord and tenant between the parties and asserted that he was the owner of the premises in dispute in his own right.
In this connection on the issues raised on the pleadings of the parties the respondent examined 8 witnesses including himself supported by the docu mentary evidence to prove that he was the owner of the land underneath by purchase and had raised the construction on it a: his own cost and that the petitioner was inducted into the premise as a tenant under him. In rebuttal the petitioner produced mostly the oral evidence and 9 witnesses including himself in support of his plea to the effect that he had raised the construction at the premises at his own costs.
In this connection it was admitted by the present petitioner as his own witness (D. W. 9) that the land comprised in Khasra No. 39 was ultimately allotted to Malik Ahmad Hassan and the area in his occupation was includ ed in the reg1stered sale deed dated 2nd of April 1968, executed by the transferee in favour of the respondent herein. In this connection the learned Rent Controller rightly observed that this admission on the part of the petitioner goes a long way to show that the land under the property in dispute was purchased by the respondent herein from the lawful allottee there of for valuable consideration. According to the petitioner he had built three rooms and a hotel at the premises of his own cost through Muhammad Din Contractor on payment of Rs. 7,200. But his statement on the point was adequately contradicted by his own witness Muhammad Din Contractor (P. W. 4) who deposed against him in his cross-examina tion to the effect that be did not get any contract for the construction of the permises in dispute from the present petitioner. Indeed at the trial the respondent produced P. W. 2 Bashir Ahmad Clerk from the office of the Excise and Taxation Officer, P. W. Muhammad Sharif Patwari and P. W. 4 Abdul Hamid, Municipal Clerk in support of his stand to the effect that he was a recorded owner of the property in dispute having pur chased the same from his predecessor Malik Ahmad Hassan. In support of his case he further examined Shams Din (P. W. 4), Jhanda (P. W. 6) Ramzan (P. W. 7) and also appeared as his own witness (P. W.) 8) in proof of his contention that the petitioner was a tenant under him in respect of the premises in dispute. In rebuttal the petitioner by and large relied on the oral evidence of the witnesses, which as already observed, was contradic tory in an attempt to prove that he had raised the building in dispute at the premises at his own cost.
From the documentary and oral evidence produced by the respondent the learned Rent Controller was satisfied that he was the owner of the property in dispute which had been let on rent to the petitioner. In this connection he observed that the petitioner has miserably failed to produce any satisfac tory evidence of his own title to the property, in conclusion, therefore, he found that the petitioner was a tenant of the premises in dispute under the respondent herein and ordered his ejectment there from.
On a re-appraisal of the evidence the learned District Judge agreed with the findings recorded by the Rent Controller and dismissed the appeal of the petitioner on the 12th of February 1977. This finding was affirmed in second appeal of the petitioner rejected by a Judge of the. Lahore High Court at Lahore on the 12th of March 1979. He saw no good reason to inter fere with the concurrent findings of fact recorded by the Courts below and held that the petitioner at a tenant under the respondent was liable to ejectment.
In this petition for special leave from the judgment of the High Court we see no good reason to interfere with the concurrent findings of fact recorded by all the three Courts and this petition is misconceived and it dismissed.
Petition dismissed.
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