ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C.P.   No.D-693   of 2010.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

 

                                                          Present :

 

                                                          Irfan Saadat Khan,   J.

                                                          Abdul Maalik Gaddi, J.

 

10.12.2013.

1. For Katcha Peshi.

2. For Hearing of M.A.No.1713/2010.

 

 

                   Mr. Rafique Ahmed K. Abro, advocate for petitioner.

 

                   Mr. Rehmat Ali Rajput advocate for respondents No.3 to 8.

 

Mr. Niaz Ahmed Shaikh, advocate for respondents No.10 to 12.

 

Mr. Abdul Hamid Bhurgari, Addl. A. G assisted by Miss Shamim, State Counsel.

 

                   Mr. Jai Jai Veshno Mange Ram, D.A.G.

 

                  

 

                                      -.-.-.-.-.-.-.-.-

 

ABDUL MAALIK GADDI, J- The petitioner is aggrieved by the judgment dated 31.3.2010, passed by the learned 4th Additional Sessions Judge, Shikarpur, whereby he dismissed the First Rent Appeal No.07/2009 filed by the petitioner against the order dated 13.11.2009, passed by the learned Ist. Rent Controller, Shikarpur allowing the ejectment application filed by the respondents No.3 to 8 and ordering the ejectment of the petitioner from the demised premises. Hence the petitioner has filed instant petition with the following prayer :

(a)          That this Honourable Court may be pleased to set aside the impugned orders dated 13.11.2009 passed by respondent No.2, Ist Rent Controller Shikarpur and impugned order dated 31.3.2010 passed by respondent No.1, 4th Additional District Judge, Shikarpur.

(b)          To suspend the operation of impugned orders dated 13.1.2009, passed by respondents No.2 and order dared 31.3.2010, passed by the respondent No.1 till final disposal of the application of respondents No.10 which is pending adjudication before respondent No.12 as well as till final decision of this petition.

(c)          To award costs of this petition to petitioner.

 

          It is the case of the respondents No.3 to 8 as set up in ejectment application No.17/2007, that properties bearing City Survey  No.23/29 (285-5) Sq. Yards and C.S No.23/28/10 (400 Sq. Yards) are inherited by them from their father late Imam Bux Larik, who was the owner of the said two Survey Numbers by way of PTD issued by the competent authority and had rented the demised premises to opponent in the year 1977/78 orally at the rate of Rs.300/- per month. After the death of Imam Bux in the year 1981, the opponent mutually increased the rent and the existing rent is Rs.5000/- per month. It is stated that the opponent paid the rent up to October, 2005. It is further stated that the opponent has removed some valuable Iron material worth Rs.50,000/- from the demised premises thereby has materially impaired the value and the utility of the said premises. It is further stated that applicants need the said demised premises for their personal use.

                    The petitioner contested the eviction application contending therein that the property bearing C.S.No.23/29 is an Evacuee Trust Property and is paying rent to the Evacuee Trust Property Board Sukkur. It is denied that demised premises were rented to him by Late Imam Bux, the father of applicants. It is also denied that after the death of Imam Bux rent was paid to the applicants. It is also denied that opponent has damaged the demised premises and has materially impaired the utility of the premises. It is also denied that premises is required by the applicants in good faith.

                   On the basis of the pleadings of the parties, the following issues were framed by the trial Court :

1.           Whether there exists relationship of landlord and tenant between the parties.

 

2.           Whether opponent has defaulted in payment of rent from November 2005.

 

 

3.           Whether opponent has materially impaired the utility of demised premises.

 

4.           Whether applicants need demised premises for use of their sons in good faith.

 

 

5.           What should the order be ?

 

          After hearing the learned counsel for the respective parties, the learned Ist. Rent Controller, Shikarpur allowed the ejectment application vide order dated 13.11.2009 on the ground that the petitioner had committed default in payment of rent and the premises in his occupation is required by the respondents No.3 to 8 for their own personal use.

                   The petitioner challenged the said order through Ist Rent Appeal No.07/2009, which was dismissed by the learned 4th Additional Sessions Judge, Shikarpur vide order dated 31.3.2010.

                   It is contended by the learned counsel for the petitioner that both the Courts below have passed the orders without appreciating the material placed on record. According to him, there exist no relationship between him and the respondents No.3 to 8, as he never paid any rent to them and he is duly and promptly paying rent to the respondents No.10 (Authority of Evacuee Trust Property). He has further submitted that the ownership of respondents No.3 to 8 was under dispute since the rented property in his possession is a Charitable Well and was being managed by Dhami Bai wife of Dhamichand and the property in question is an Evacuee Trust Property, the same cannot be disposed of by the Settlement department to the father of respondents No.3 to 8 in the light of Section 10 of Evacuee Trust Property Act (the Act) as well as section 4(2) of Displaced Persons (Compensation and Rehabilitation) Repealed Act 1958, therefore, disposal of said Charitable Well to the father of respondents No.3 to 8 is illegal and unwarranted under the law. He added that in this regard a petition had been filed by the Administrator of Evacuee Trust Board Sukkur before Chairman, Evacuee Trust Property  Board, Lahore and the same is still pending for adjudication, therefore, he was of the view that since the property in-question is Evacuee, therefore, the learned Rent Controller and the learned Appellate Court had no jurisdiction to allow the ejectment application. In support of his above arguments, he has relied upon the following decisions :

 

1.           Mst. Mariam Bai and others versus Islamic Republic of Pakistan and 5 others 1993 SCMR 515.

 

2.           Muhammad Shafi versus Joint Secretary, Ministry of Religious and Minorities Affairs and others 1997 SCMR 227.

 

3.           Syed Abdul Majeed versus Secretary, Ministry of Religious Affairs and Minorities, Government of Pakistan, Islamabad and 2 others 2000 MLD 1470.

 

4.           Allied Bank Ltd versus M. Shafi through legal heirs and 4 others 2011 MLD 371.

 

5.           Abdul Khalid versus Ghulam Saghir 2013 YLR 2342.

 

          Learned counsel for respondents No.10 to 12 has argued that the property in possession of the petitioner is an Evacuee Trust Property which had wrongly been transferred in the name of father of respondents NO.3 to 8 and in this regard he had already moved an application to the Chairman, Evacuee Trust Property, Lahore on 19.2.2008 for cancellation of the said illegally issued PTD.

                   Learned D.A.G has also supported the version of respondents No.10 to 12.

          Learned Addl. A. G has argued that he has nothing to do with the property as the dispute is between the private persons, therefore, this case may be disposed of as per law.

                   On the other hand, learned counsel for the respondents No.3 to 8 has supported the orders passed by the two Courts below and has argued that he has proved the relationship between the petitioner and them. He has further submitted that the said respondents have become owner through PTD issued in their favour in the year 1963 after fulfilling all the legal formalities and the said status of the property is still in vogue. He has further submitted that admittedly the petitioner used to pay rent to the said respondents and this fact has been proved in evidence recorded before the learned Rent Controller, therefore, at this stage of the case, the petitioner has no right to take contrary plea. He has further submitted that this Constitutional Petition is not maintainable as the petitioner has failed to point out any misreading or non reading of the evidence, therefore, he has prayed for dismissal of this petition. In support of his above arguments, he has relied upon the following decisions :

1.           Saifuddin and another versus Senior Civil Judge/Rent Controller-VIII, Karachi (South) and 7 others 2007 SCMR 128

.

2.           Haji Abdul Sattar and others versus Farooq Inayat and others 2013 SCMR 1493.

 

          We have heard all the learned counsel for the respective parties at considerable length, and also gone through the impugned orders passed by the learned two Courts below and so also have perused the law, the decisions relied upon and the  material available on the record.

                   It reveals from the record that in the year 1963, PTD with regard to premises in-question was issued to  the father of respondent No.3 to 8 by the competent authority after observing all legal formalities, which is also evident from the extract of property registered card and their father in his life time rented out the demised premises to the petitioner in the year 1977-78 orally at the rate of Rs.300 per month and after the death of their father the present petitioner mutually increased the rent and the same was enhanced from Rs.300/- to Rs.5000/- per month and according to the respondents No.3 to 8 the petitioner had paid rent to them up to October 2005 and thereafter he did not pay the rent, hence they filed ejectment application against him which was contested by the petitioner by taking the plea that there exist no relationship of landlord and tenant between them. In order to prove their respective claims Mohammad Aslam and Khawand Bux have filed their affidavits in evidence on behalf of the respondents No.3 to 8 in which they have reiterated the same facts, as were stated in the ejectment application. On behalf of the petitioner one Irfan Ali and Abdul Khalique have filed their affidavits in evidence, these persons were duly cross examined by the respective advocates.

          We have gone through the evidence of the said witnesses, the petitioner in his written statement has taken the plea that the property in his possession is an Evacuee Trust Property and is paying rent to the Evacuee Trust Property Board Sukkur. It is also denied by the petitioner in his written statement that he paid rent to father of the respondents No.3 to 8 but perusal of evidence led by the petitioner in the ejectment application through Irfan Ali and witness Abdul Khalique, they have admitted that petitioner used to pay rent to father of respondents No.3 to 8. For the sake of convenience, it would be proper to reproduce the relevant portion of the evidences of Irfan Ali and Abdul Khaliq, which read as under :

                   Irfan Ali.

 

“It is correct to suggest that in the beginning the applicant was receiving Rs.100/- per month as occupation charges from my father, claiming to be owners of property. Thereafter Evacuee Trust Property claims to be owner and we started paying rent to them. It is not in my knowledge that opponent had been paying rent to the father of the applicant Ghous Bux in the very beginning at the rate of Rs.300/- per month. However rent was sent by us who refused to receive rent which was sent through money order.”

 

          Abdul Khalique.

 

“It is correct that opponent was paying rent in the beginning to applicant Ghous Bux and thereafter applicant refused to receive rent, though rent was sent by opponent to him through money order. It is correct to suggest that opponent was paying rent to applicant without any receipt and it was oral agreement in between applicant and opponent.”

 

                   We have gone through the evidence of the said witnesses and have also gone through Article 115 of the Qanun-E-Shahadat Order, 1984. For the sake of convenience, it would also be proper to reproduce the said Article, which is very relevant in the present circumstances of the case,  which reads as under :

“115. Estoppel of tenant and of licensee of person in possession.—No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a little to such immovable property; and no person who came upon any immovable property by the licnece of the person in possession thereof shall be permitted to deny that such person had a little to such possession at the time when such licence was given.”

 

                   From the perusal of the evidence as well as Article 115 of the Qanun-E-Shahadat Order, 1984, and in view of evidence of petitioner’s witnesses on record, it has become quite clear that there exist relationship of landlord and tenant between the petitioner and respondents No.3 to 8. It is a settled principle of law that once  person accept  another as his landlord and enters into possession of premises, he  cannot be allowed to challenge title of his landlord. In this respect we are fortified with the case of Kalimullah versus Amin Hazin and others 1975 SCMR 77. We have also gone through the case of Mst. Seema Begum versus Muhammad Ishaq and others PLD 2009 Supreme Court 45. In this decision, it was observed by the Hon’ble Apex Court as under :

“…..It is also settled proposition of law that once a person acknowledges himself to be a tenant of a landlord, the principle of estoppel as enunciated in Article 115 of Qanun-e-Shahadat Order would come into play, debarring such tenant to deny the title of his landlord. Reference can usefully be made to the cases of Habib Khan v. Haji Haroon-ur-Rashid (1989 CLC 783).”

 

                   Learned counsel for the petitioner has argued that the property in his possession is an Evacuee Trust Property and has been illegally transferred in the name of father of the respondents No.3 to 8 and according to him, this act has been challenged by the Assistant Administrator, Evacuee Trust Property to the Chairman, Evacuee Trust Property Board, Lahore for cancellation of PTD, which is pending adjudication before the said authority.

                   We have also gone through the contents of the said application which shows that the said application was moved to the Chairman, Evacuee Trust Property Board, Lahore on 19.2.2008, while the PTD was issued to the father of respondents No.3 to 8 way back in the year 1963 and during this intervening period the Authority of Evacuee Trust Board had remained silent for about forty years. We may also mention here that during proceedings of the ejectment application, the Evacuee Trust Property Authority has made an application for joining them in the proceedings but the said application was dismissed and admittedly the said order was not challenged before any competent forum, as such it appears that the said order had attained finality but surprisingly the petitioner joined them in this petition, with ulterior motives. Although as per record, the respondents No.10 and 11 were not made party in the said proceedings, therefore, we also observe that no body could be  added, altered or deleted as per whim and wish of a party. Reliance in this respect is placed on the case of Muhammad Qasim versus VIth Additional District and Sessions Judge, Karachi Central and 2 others 2008 CLC 446.

          It is also argued by the learned counsel for the petitioner that the learned two Courts below have not properly appreciated the evidence. In this regard, we are of the considered view that the question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction for the simple reason that in doing so the petition shall be converted into a revision or second appeal  and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated. A writ petition is not a substitute either of a revision or a second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law has been violated.

                   In this case, as observed above, since both the Courts below have categorically held that there exist relationship of landlord and tenant between the petitioner and the respondents No.3 to 8, these are concurrent findings of the two Courts below against the petitioner which cannot be disturbed unless it is shown that the findings are against the evidence on record. Learned counsel for the petitioner has failed to point out any illegality or irregularity or infirmity in the impugned orders or pointed out any misreading or non reading of evidence.

                   The case law cited by the learned counsel for the petitioner has been perused and considered with due care and caution but were found to be distinguishable from the facts of the present case as in the cited case, the question of admission of relationship of landlord and tenant was missing. Whereas, in the instant case the perusal of cross examination has left no room of doubt that the relationship between the petitioner and the respondents No.3 to 8 had duly been established.

                   In view of the above, we find no merit in this petition, which is dismissed. We therefore, maintain the orders passed by the two Courts below with no order as to cost. Since the petitioner appears to be an old tenant, therefore, by taking a lenient view he is granted sixty days time to vacate the premises in-question and handover its vacant and peaceful possession to the respondents No.3 to 8.

          We had dismissed this petition by our short order dated 10.12.2013, these are the detailed reasons for the same.

 

                                                                                                Judge

                                                                   Judge