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Revision No: 382 of 1961‑62, decide on 8th August 1962, District Lahore.

S. 77‑Suit for eject ment on ground of non‑payment of rent‑Tenant alleging payment by M. O.‑Landlord's denial‑Tenant should prove payment by Producing official of postal department or some other direct evidence.

Ss. 84 & 77‑Suit for ejectment on grounds of non‑payment of rent and destroying garden‑Concurrent finding of fact‑Case not falling under provisions of S. 115, Civil Procedure Code (V of 1908)‑No inter ference in revision.

A suit for ejectment was brought by the respondent‑landlords against the petitioner who is their tenant‑at‑will from a piece of land measuring 11 Kanals and 9 Marlas situated in village Sanda Kalan. Ejectment was sought on the ground that the tenants had failed to pay rent from 1948 to 1959 and were thus in arrears to the exent of Rs. 77,000 ; further that the land had not been properly cultivated. In support of the latter contention it was alleged that a garden which was situated in the land had been ruined by the petitioners during the course of the tenancy. The trial Court found that the tenants who had been paying cash rent had not paid rent for the period in question ; further that the fruit trees of the garden as alleged had dried up due to lack of care on the tenants' part. A decree for ejectment was accordingly passed. The Collector maintained this decree in appeal and a revision filed with the Additional Commissioner also failed. A second revision has now been preferred.

Two grounds have been taken up before me and both of them relate to questions of fact: Firstly, that the tenants had not made default in payment of rent and secondly, that the trial Court had erred in placing the onus of proof on the tenant regarding his alleged carelessness in respect of the garden. As regards the first point stress is laid on the observation made by the Courts below that as there was a dispute between the tenant and the landlords the tenant should have had recourse to the provisions of section 31 of the Tenancy Act. Indeed it is not obligatory on the tenant to deposit rent with a Revenue Officer in a case of dispute but the observations made by the Courts below are to the effect that as a dispute did exist it would normal ly be expected of a tenant to have recourse to the facilities offered by him under the Tenancy Act. As regards the alleged money‑order stated to have been sent by the tenant to the land lord, in the presence of the landlord's denial the fact of having sent the money‑order should have been proved by producing the official of the Postal Department or some other direct evi dence. This has not been done and the Courts below were thus justified in coming to the conclusion that the tenant had made default in payment of rent.

As regards the second issue, a complete reading of the paragraph dealing with issue No. 4 of the trial Court's judgment leaves no room for doubt that the onus regarding this issue which relates to the garden was properly placed on the landlord. He had led evidence to prove that the garden had dried up on account of the carelessness of the tenant. The evidence in rebuttal produced by the tenant was considered insufficient to discharge the onus. The sentence to which my attention has been drawn at the end of the first paragraph dealing with issue No. 4 has to be read in its context and paragraph has to be read as a whole. On doing so, I do not find any illegality in laying the onus of proof.

As a result of the above discussion it would be apparent that no justification exist for me to interfere in revision as none e of the points which would justify it in accordance with the provisions of section 115, C. P. C. have been established by the owners. As a result the petition stands rejected.

K. M. A. Petition dismissed.

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