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Civil Petition for Leave to Appeal No. 119‑K/1986, decided on 4^th June, 1986.

(On appeal from the, judgment of the Sind High Court, dated 15‑12‑1985 in II Appeal No. 17 of 1979).

‑‑‑S. 13‑‑Civil Procedure Code (V of 1908). O. XXI, R. 103 Ejectment order‑‑Execution‑‑Order of ejectment, held, could be executed against a person having come into possession of subject property through tenant.

‑‑‑O. XXI, R. 103‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Ejectment‑‑Suit for possession‑‑Respondent landlord obtaining order of eviction from competent forum‑‑Respondent, held, not required to seek relief of possession afresh in suit filed by him on plea that petitioner was in possession of same house through original tenant.

‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Petitioner in occupation of property through original tenant‑‑Taking inconsistent pleas of holding title of property as well as being a tenant thereof‑‑Petitioner, held, could not be allowed to take two different pleas in same breath‑‑Petition being without merit dismissed.

Z. U. Ahmad, Advocate Supreme Court and Shabbir Ghaury,, Advocate‑on‑Record for Petitioner.

Khalid Ishaque, Advocate Supreme Court and A. Aziz Dastgir, Advocate‑on‑Record for Respondent.

Date of hearing: 4th June, 1986.

This is a petition for leave to appeal from the judgment, dated 15th December, 1985, by a learned Single Judge of the Sind High Court, whereby the second appeal filed by the respondent was allowed, setting aside the judgment and decree passed by the first appellate Court in favour of the petitioner thereby restoring the decree passed by the trial Court.

2. Briefly the facts leading to this petition are that the respondent filed an application for eviction under section 13 of the Sind Rent Restriction Ordinance, 1959, against one Sher Zaman in respect of a house situated on plot of land bearing No. 969, Azam Basti, K.M.C. Colony, Karachi. The respondent's application was allowed and an order of eviction was passed against the said Sher Zaman in the year. 1970.

3. The respondent then moved an application for execution of the order of eviction and while the said execution application was pending, the petitioner intervened in the proceedings with an application under Order XXI, Rule 29, C.P.C., alleging that the order of eviction was being wrongly executed in respect of his House No. 1456. On the petitioner's application the executing Court passed an order to the effect that "under the circumstances ejectment in respect of the house No. 1456 should not be made an ejectment in respect of the house on Plot No. 969 should be made. Issue writ of ejectment."

4. As the respondent was claiming that the house in occupation of the petitioner was in fact the same house which earlier bore No. 969, he filed a suit under Order XXI, Rule 103, C.P.C. in which he averred that the property originally bearing No. 969 on the evaluation list of the Excise and Taxation Department by order of the Authority, dated 19th May, 1969, was given a new number as No. 1456 is lieu of the K.M.C. number. According to his allegation the original tenant Sher Zaman against whom the order of eviction was made had managed to get his name registered as owner of the property bearing No. 1456 in the records of the Excise and Taxation Department. However, by Assessing Authority's order, dated 9th September, the defendant managed to get the ownership of the House No. 1456 changed in his name. It was submitted that the respondent is the brother‑in‑law of the abovesaid tenant Sher Zaman. The respondent prayed for a decree for declaration that the house bearing old No. 969 and the new number 1456 belongs to the plaintiff and is liable to be subject to the execution in pursuance of the order of eviction.

5. The petitioner resisted the suit and inter alia took the plea that the suit was not maintainable under Order XXI, Rule 103, C.P.C. However, the trial Court decreed the suit on 27th February, 1975. The appeal filed by the respondent was allowed by Vth Additional District Judge, Karachi, by his judgment, dated 23rd September, 1978, whereby the decree passed in favour of the respondent was set aside, on the ground that the suit under Order XXI, Rule 103, C.P.C. (before amendment) was not maintainable and that a regular suit ought to have been filed by the respondent.

6. Being aggrieved by the aforesaid judgment of the learned Additional District Judge, the respondent filed a second appeal which was allowed by the High Court as stated above. The learned Single Judge while considering the question of maintainability of the suit formed the opinion that because of the change of the number of the house, the execution application of the respondent was frustrated and nullified. In his opinion and rightly so the real controversy was whether the premises in respect of which the eviction order was passed bearing No. 969 was the same property in respect of which the number was changed to 1456. In order to resolve this controversy the learned Judge elaborately considered the facts on record and came to the conclusion that the property is the same but only the number was changed from 969 to 1456 by Excise and Taxation Department. In this behalf learned Judge referred to an inquiry conducted by the Excise and Taxation Department in which the contention of the respondent was accepted that the same house bore No. 969 originally which was renumbered as 1456 of which the respondent was the owner. On a departmental appeal filed by the petitioner against the aforesaid decision the Director‑General, Excise and Taxation Department dismissed the same and directed the parties to settle the question of title in the civil Court. Learned Judge also referred to the fact that Sher Zaman had also claimed this property by filing a suit for declaration in the year 1970 which was dismissed. According to the claim of the petitioner he acquired the ownership of the property in the year 1962 and constructed this house. In this behalf the learned Judge observed:‑

"No evidence worth the name, documentary or independent oral evidence has been produced. According to his own admission in the year 1962 he was hardly 13 years old, and nothing has been produced to establish, what was his source of income, and from where he received money at such a young age to raise the construction. Admittedly he was residing with his brother‑in‑law Sher Zaman to whom the appellant had rented out the house."

7. Learned counsel reiterated his contention that as no application was made by the decree‑holder, the suit filed by him under Order XXI, Rule 103, C.P.C. was not competent. However, we agree with the learned Judge that in view of the fact that the execution proceedings had been frustrated on the application of the petitioner, the respondent had no other recourse but to file a suit. In any case the objection is purely technical, in that, the respondent clearly had a cause of action to file an independent suit. Consequently the objection is without substance. It was next contended that the suit was bad in form inasmuch as no prayer for possession was made. This contention is also untenable in view of the fact that consequent to the declaratory decree obtained by the respondent, his right to obtain possession by execution of the order of eviction would be revived. It is well‑settled that an order of ejectment can be executed against a person having come into possession of subject property through the tenant. Be that as it may be the respondent having obtained an order of eviction from competent forum was not required to seek the relief of possession afresh in the suit filed by him on the plea that the petitioner was in occupation of the same house through the original tenant.

8. It was finally contended that in his evidence the respondent having admitted that the petitioner was a co‑tenant along with Sher Zaman the suit was hit by section 13 of the Urban Rent Restriction Ordinance. On the face of it this contention is inconsistent with the previous submission of the learned counsel. In any case the petitioner cannot be allowed to raise inconsistent pleas by setting up title to the property as well as take a plea that he is tenant in the same breath.

9. For the foregoing reasons we find no merit in this case which is accordingly dismissed.

M. Y. H. Petition dismissed.

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