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Civil Petition for Leave to Appeal No. 19 of 1986, decided on 1st February, 1986.

(On appeal from the judgment of the Lahore High Court, Multan Bench, dated 17‑11‑1985 in Writ Petition 876 of 1985).

‑‑‑Arts. 185 (3) & 199‑‑Cantonments Rent Restriction Act (XI of 1963), S.17‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑‑Question of fraud‑‑Cannot be decided in constitutional proceedings‑‑[Fraud].

‑‑‑S. 17‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑‑Relationship of landlord and tenant‑‑Tenant invoking provision of S. 30 of Displaced Persons Act and challenging relationship of landlord and tenant at same time‑‑Tenant, held, was not entitled to take inconsistent pleas.

‑‑‑Arts. 185(3) & 199‑‑Petitioners seeking to question primarily findings of fact recorded by subordinate forums‑‑High Court, held, justified in refusing to interfere therewith in constitutional jurisdiction.

Pervez Akhtar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 1st February, 1986.

‑Petitioners Lal Muhammad and others are aggrieved by order, dated 17th November, 1985, by which a learned Single Judge of the Lahore High Court, Multan Bench, Multan, dismissed in limine, the writ petition filed by them to challenge an order passed against them by the Rent Controller, Multan Cantonment, as well as the appellate order passed by the District Judge, Multan, dismissing their appeals.

2. The undisputed fact is that the premises in respect of which the order of ejectment has been passed was originally evacuee property and was transferred to one Abdul Qadir and Shafquat Parveez by the Settlement Authorities as a result of which P.T.D. was issued in their favour. Later on Abdul Qadir died and his legal heirs alongwith Shafquat Parveez alienated the property in favour of Mst. Jameela Begum, respondent No.3 herein, by means of a sale‑deed, dated 24th December, 1979. As tire petitioners were in occupation of various tenements in the building constituting the premises in dispute, and according to respondent No.3 were the tenants of the previous owners paying rent to them, she informed them by separate registered notices about her having acquired title in the property. The petitioners, however, failed to pay or tender rent to respondent No.3, therefore, she filed separate ejectment applications against them on the ground of default, personal requirement and causing damage to the property under section 17 of the Cantonment Rent Restriction Act, 1963.

3. Petitioners resisted the ejectment applications and pleaded that they had never paid rent to the previous owners and that no statutory notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, were served on them. The Rent Controller, on these pleas, framed the following two preliminary issues:‑

(1) "Whether the relationship of landlord and tenant exists between the parties O.P.P.

(2) Whether the petitioner or her predecessor have served the notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, oh the respondents and if not its effect O.P.P."

The learned Rent Controller after heaping the evidence of the parties decided both the preliminary issues in favour of the landlady. He held that on the one hand the petitioner claimed that they were entitled to be served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which implies that they were claiming to be statutory tenants, on the other hand they were denying the relationship of landlord and tenant between the parties. In this connection the learned Rent Controller observed:‑

"In their statement before the Court the respondents have not explained the nature of their Possession though regarding the civil suit and stay order it nay been conceded in the statement of the respondent but no stay order copy of the plaint has been produced before the Court so as to determine the nature of the claim of the respondents. So, hold the possession of the respondents over the pro arty in dispute is as tenant and as Displaced Persons (Compensation and Rehabilitation) Act, 1958, has been repealed since long the respondents cannot claim the protection of that repealed law et this stage."

On these findings the learned Rent Controller passed the orders of ejectment against the petitioners since they had admittedly not paid rent to the landlady. The District Judge, Multan, agreed with the findings of the Rent Controller and dismissed the appeal filed by the petitioners. Thereafter the writ petition filed by the petitioners seeking to challenge the aforesaid order was also dismissed in limine.

4. In support of the petition learned counsel contended that the petitioners are not legally the tenants of respondent No.3 and as such the orders of eviction passed against them were without jurisdiction and void. In this connection learned counsel submitted that, as mentioned in the petition, vide para. 2(a) all the petitioners were close relations of Abdul Qadir, the transferee of the property and that the property was in possession of Mst. Nawab Bibi, the wife of petitioner Lal Muhammad, except a part of the property bearing No.409 which was in possession of Abdul Qadir. He submitted that Abdul Qadir by fraudulent means obtained the transfer of the entire property in his name to the exclusion of Mst. Nawab Bibi whose brother Sardar Muhammad was married to his sister. According to the submission of the learned counsel the petitioners were not in possession of the respective portions of the property at the time of the transfer in favour of Abdul Qadir, but were licensees with the exception of petitioners Lal Muhammad who is still litigating for title through his wife Mst. Nawab Bibi in the civil Court.

5. So far as the question of fraud alleged against Abdul Qadir in regard to the securing of transfer in his favour is concerned this question cannot be decided in the present proceedings and the Rent Controller rightly refused to go behind the P.T.D. issued in his favour. The contention of the learned counsel, however, is that the case of the landlady before the Rent Controller was not that the petitioners were statutory tenants but they were tenants of the previous owners, on which no evidence was produced. The submission was that the petitioners were not statutory tenants in terms of section 30 of the Displaced Persons Act and, therefore, could not, by the mere fact of their occupation become tenants of the previous owners. This aspect of the case has been considered by the High Court and it has been held that this is a question of fact determined in favour of the landlady by the subordinate statutory forums. The Rent Controller rightly help that the petitioners were not entitled to take inconsistent pleas by d invoking the protection of section 30 of the Displaced Persons Act and challenging the relationship of the landlord and tenant at the same time. It has been held by the Rent Controller that the petitioners were not able to explain the nature of their possession and therefore, since they were in occupation of the premises at the time of its transfer. by operation of law they became statutory tenants, which was indeed their assertion implicit in their plea seeking protection under section 30. Learned counsel has placed reliance on some decisions to contend that mere occupation was not sufficient to create statutory tenancy under section 30, but on a pointed question from the Court he was unable to say when and how the petitioners came into possession of the property.

6. As the petitioners were seeking to question primarily findings of fact recorded by the subordinate forums, the High Court rightly refused to interfere with the impugned orders in its constitutional jurisdiction. The petition is without substance and is accordingly dismissed.

M . Y . H . Petition dismissed.

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