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Writ Petition No.2900 of 1981, decided on 2nd November, 1986

‑‑‑S. 13‑‑Ejectment proceedings‑‑Landlord and tenant, relationship of Rent Controller and lower Appellate Authority found to have misread evidence to hold that relationship of landlord and tenant existed between parties‑‑Respondent landlord's title to disputed property also becoming doubtful because decree on which it was based had admittedly been se aside‑‑Respondent, held, could maintain ejectment proceedings only after he established his title to property in dispute‑‑Orders of Rent Controller as well as lower Appellate Authority set aside.

Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064 rel.

Kh. Saeed‑uz‑Zafar for Petitioners.

Syed Qurban Ali Gillani for Respondents.

Date of hearing: 2nd November, 1986.

This writ petition is directed against order, dated 24‑2‑1981 of the learned Additional District Judge, Lahore whereby he maintained order, dated 21‑12‑1978 of the learned Rent Controller, Lahore directing petitioners ejectment from the disputed plot.

2. Babu Khuda Yar, predecessor‑in‑interest of respondents Nos.1 to 10, filed application under section 13 of the Rent Restriction Ordinance, 1959 seeking ejectment of the petitioners on the ground that Abdul Sattar, predecessor‑in‑interest of the petitioners was tenant under him on the basis of rent notes, dated 24‑4‑1956 and 13‑5‑1957 executed in his favour and he defaulted in payment of monthly rent. During the pendency of the ejectment petition Babu Khuda Yar died and his legal representatives were brought on the record. The ejectment petition was resisted by the petitioners on the ground that no relationship of landlord and tenant existed between the parties. The learned Rent Controller recorded evidence led by the parties and vide order, dated 21‑12‑1978 held that relationship of landlord and tenant did exist between the parties: He accordingly directed petitioners' ejectment and that order was maintained in appeal on 24‑2‑1981 before the learned Additional District Judge, Lahore. Hence, this petition.

3. Learned counsel for the petitioners contended that the learned Rent Controller as well as the first lower appellate authority were influenced by copy of judgment, dated 26‑3‑1969 whereby the suit filed by Babu Khuda Yar against the Manager, Jammu and Kashmir State Properties in respect of the disputed plot was decreed by the learned Civil Judge in his favour. It was next submitted that the aforesaid decree had since long been set aside in appeal by the competent Court of jurisdiction. It was further contended that the learned Rent Controller as well as the learned Additional District Judge grossly erred to hold that the rent notes referred to above were allegedly executed by Abdul Sattar predecessor‑in‑interest of the petitioners. It was also contended that there is no evidence on the record to substantiate that finding. It was also contended that the petitioners being owners of the property in dispute sought ejectment of Muhammad Saeed and other tenants under them and vide judgment, dated 10‑12‑1979 passed by this Court in S.A.O. No.70 of 1972, the appeal filed by the tenants was dismissed and order for their ejectment became final.

4. Learned counsel appearing on behalf of the contesting respondents, on the other hand, submitted that the petitioners are no more in possession of the disputed property and the respondents had already obtained possession thereof. It was further contended that the petitioners being tenants under the aforementioned respondents had sublet the property, paid no rent to the landlords and wrongly denied the relationship of landlord and tenant between the parties. The learned Rent Controller as well as the lower appellate authority rightly concluded that the relationship of landlord and tenant existed between the parties and directed petitioner's ejectment from the disputed plot.

5. I have considered the contentions raised by learned counsel for the parties and have gone through the documents on the file. Learned counsel for the contesting respondents could not controvert the fact that the decree, dated 26‑3‑1969 passed by the learned Civil Judge, Lahore in their favour holding them owners of the property in dispute had been set aside. He was also unable to show from evidence on the record that the rent notes, dated 24‑4‑1956 and 13‑5‑1957 (Marks A/1 and A/4) respectively were legally proved. None of the witnesses identified the signatures of Abdul Sattar. Learned counsel stated that the scribe of the rent notes namely, Ch. Muhammad Waheed had died and his son Khalid Waheed who had appeared as respondent's witness identified the handwriting of his father as such the execution of the documents stood proved. He, however, was unable to show from his statement that he had identified the signatures of Abdul Sattar on marks A/1 and A/4. Even Muhammad Saeed, one of the respondents did not identify the signatures of Abdul Sattar executant on the rent notes. The rent notes were, therefore, not proved and for that reason were only marked as A/1 and A/4 and not exhibited in evidence. Moreover, the rent notes were executed by Abdul Sattar son of Haji Maula Bakhsh whereas the predecessor‑in‑interest of the petitioners was Abdul Sattar son of Mian Karam Din. The extract from register of Waseeqa Nawees was also of no significance to connect Abdul Sattar because the non‑judicial stamp paper was sold in favour of Abdul Sattar son of Maula Bakhsh and not Abdul Sattar son of Mian Karam Din. The extract of the register was not signed by Abdul Sattar as such, could not prove that he had purchased non‑judicial stamp paper.

I am, therefore, of the view that the learned Rent Controller as well as lower appellate authority had misread evidence to hold that relationship of landlord and tenant existed between the parties. Respondents' title to the disputed property has also become doubtful because the decree on which the same was based had admittedly been set aside. Respondents can maintain ejectment proceedings against the tenants only after they establish their title to the property in dispute as envisaged in the latest pronouncement of the Supreme Court in Rehmatullah v . Ali Muhammad and another 1983 S C M R 1064.

6. For the foregoing reasons the impugned orders passed by the learned Rent Controller as well as the lower appellate authority are declared to be of no legal effect and hereby set aside and this petition accepted with no order as to costs.

S. Q Petition accepted

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