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Civil Rent Application No.59 of 1984, decided on 17th September, 1987.

---S.115, O.XXI, R.63 & O.XXXIX, Rr. 1 & 2--Chairman District Council/respondent (No.1) who allotted quarter in question to respondent (No. 2), cancelled allotment and allotted same to petitioners on ground that Respondent (No.2) first rented it out to petitioner and then agreed to sell same to him--Respondent (No.2) filing suit against said order of Respondent (No.1) and succeeded in establishing that he neither rented out nor entered into an agreement to sell the quarter in question--Courts below, decreeing suit of Respondent (No.2) against petitioner arriving at concurrent findings of facts and acting within their jurisdiction and not committing any irregularity in exercising their jurisdiction nor refusing to exercise same in any manner--Judgments of Courts below, held, were not liable to be set aside in circumstances.

M.A.Lakhani for Applicants.

Abrar Hussain for Respondent.

Date of hearing: 8th September, 1987.

The applicant has brought into challenge the Judgment and decree of IVth Senior Civil Judge dated 5-2-1980 in Suit No.2088/69, whereby the suit filed for declaration, injunction and possession by respondent No.2, was decreed. The judgment and decree of VIth Additional District Judge, dated 25-2-1984, whereby the appeal of the Applicant was dismissed, has also been challenged.

2. The relevant facts are that on 12-2-1967, the respondent No.2 was allotted the disputed quarter by respondent No.1 under an agreement. In February 1969, the petitioner according to his own allegation was inducted as a tenant in the disputed quarter and he paid rent for 2 months, but there was no agreement of tenancy in writing. The applicant also claimed that thereafter he had entered into an oral agreement for purchase of the said quarter for Rs.5,000 out of which he paid Rs.2,000 as advance. But again there was no contract in writing and no receipt for the said Rs.2,000. The applicant was later on asked by respondent No.2 to vacate the quarter and, therefore, the applicant approached the respondent No.1 for relief who issued a notice of show cause to respondent No.2 on 28-5-1969 as to why his allotment should not be cancelled. Respondent No.2 replied to the said show cause on 2-6-1969 and took up the position that he had neither rented out the premises to the applicant and nor had agreed to sell the same, but had only accommodated the applicant as a licensee in one room as the applicant was maternal-uncle of respondent No.2. It appears that the Deputy Commissioner/'Chairman District Council did not hear the parties but made an order on 16-9-1969, for cancelling the allotment of respondent No.2 and allotting the same to the applicant. On 1-11-1969, the respondent No.2 filed suit for declaration. The suit was contested by the applicant, but the respondent No. l did not contest the same seriously. However, merely written statement was tiled. The Civil Judge framed the eight issues which are to the following effect:-

"(1) Whether the Plaintiff had sublet or had agreed to sell the suit premises to the Defendant No.2 If so to what effect

(2) Whether the occupation of defendant No.2 in one room of the suit property was what of a licence If so to what effect

(3) Whether the defendant No.2 was in occupation of one room only prior to the filing of this suit If so, to what effect

(4) Whether the, plaintiff's allotment of the quarter in suit was cancelled illegally and mala fidely If so, its effect

(5) Whether the defendant No.2 is the legal allottee of the quarter in suit, if so, its effect

(6) Whether the suit has been under valued

(7) Whether the suit is not maintainable in law

(8) What should the decree

3. The respondent No.2 examined himself in support of the plaint. He was supported by Muhammad Naseem and Abdul Ghani' to the effect that the Petitioner had been allowed to stay in one room in the said quarter o- temporary basis for 2 months. The sale of the quarter to the petitioner was denied. The plaintiff /respondent No.2 had also stated that he was not given any opportunity of hearing before the Respondent No.1 before the cancellation of the allotment.

4. The petitioner examined himself in support of the case and stated that he was given the quarter on rent by respondent No.2 and then he sold the same and received Rs.2,000. But he did not state as to what was the rent agreed between the parties nor he produced any agreement or receipt in support of the case. The petitioner had stated that he had paid the amount of Rs.2,000 to respondent No.2 in presence of Asghar Abbas and Munawar Ali, but none of them was examined in support of the case of the petitioner.

5. The Civil Judge decreed the suit and held that respondent No.1 had neither sublet nor agreed to sell the said quarter to the petitioner and, therefore, he had not violated terms of the allotment/ agreement and that the petitioner was allowed to occupy only one room for two months as licensee. It would be worthwhile to note that the petitioner had 'admitted in cross-examination that he was related to respondent No.1 and that he was on visiting terms with him and he made further admission that some household articles of respondent No.2 were lying in the disputed quarter. The suit of the respondent No.1 was, therefore, decreed and the allotment made by respondent No.1 in favour of the petitioner, was, therefore, declared to be illegal and without any effect.

6. The main argument of Mr. Amin Lakhani is that there was a transfer of the quarter in question by respondent No. l and, therefore, the cancellation of allotment of respondent No.1 was justified in view of the term No.8 of the terms and conditions of allotment. The said term provides that allottee shall not in any manner transfer the quarter, building or structure or any part thereof Para 9 of the same terms gives the power to Chairman of District Council after serving 15 days notice to cancel the allotment order in case of default in payment of higher purchase instalment or commission of breach of any terms of allotment.

I am of the view that the transfer stipulated in para-8 of the terms and conditions is not in respect of renting out the property, but it prescribes the transfer of the property, namely, the sale or mortgage thereof and the same is really elucidated in the later part of para 8, where the Chairman is allowed to permit the allottee to transfer the building or quarter or a part thereof and then it further provides that on such permission being granted the obligation and liability accrued to the allottee by virtue of the allotment will devolve on the person, who thus purchased the site and the quarter. The very word "purchase" used in the last part of these terms, makes it clear that it is only the transfer through purchase, which is intended to be prohibited in para 8 of the terms and if the general definition of transfer is included then of course it would include the mortgage, but a lease or licence for 2 months can hardly be deemed to be a part of such a transfer as is visualised in para 8. This, however, is an academic discussion in respect of 'transfer' used in para 8, but otherwise the Civil Judge and the District Judge have come to the conclusion that in this case there was no lease given by the respondent No.1 to the petitioner nor he had agreed to sell the Property and, therefore, there was no lease or sale found as a fact in the case. The same being concurrent finding of facts, I am bound by the same. Even otherwise the said finding appears to be reasonable, in the circumstances of this case. Moreover, the fact that the respondent No.1 cancelled the allotment in favour of the respondent No.1 without hearing was enough to justify the setting aside that order. In fact, the respondent No.1 has sought to cancel the allotment in favour of the respondent No.2 merely on the basis that permission to reside had been given to the Petitioner in the said quarter by the respondent No.2. There is no finding that there was any transfer of the premises by the respondent No.2 to the petitioner and in the absence of such a finding, the respondent No.1 had no justification in law to cancel the allotment of the respondent No.1 .

7. I find that the two Courts below have acted within their jurisdiction and have not committed any irregularity in the exercising of their jurisdiction nor have they refused to exercise their jurisdiction in any manner and hence their 'judgments are not liable to be set aside. As a result of the above discussion, this revision application was dismissed on 8-9-1987 and these reasons were dictated in open Court on the same day.

M. Y. H./A-191/K Petition dismissed.

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