P L D 1988 Peshawar 36 (PLP)

Q. Atiqur Rehman for Appellant. M. Sardar Khan for Respondents. Date of hearing: 9th December, 1987. Syed Mazhar Ali Shah appellant herein has filed an application against M /s. Ali Autos and other respondents herein in the Court of Rent Controller, Peshawar Cantonment for ejectment of the respondents from the garage 'No.20-E-I (beneath House No.86LP) alongwith passage thereof situated at Saddar Road, Peshawar Cantonment. The respondents Nos.1 to 8 in the application were placed ex parte and Fazlur Rehman respondent No.9 in the application as also in the appeal herein is contesting the ejectment application. The said respondent submitted an application on 8-7-1986 before the Rent Controller wherein he stated that he had obtained on rent the garage only and not the passage thereof. His contention was that the appellant was not owner and landlord of the passage mentioned in the 'ejectment application and had also not let the same on rent to him, as such, the appellant be directed to submit a correct and proper ejectment application. The appellant submitted his reply to the application and the Rent Controller heard arguments thereon and by the impugned order dated 2-9-1986 held that the appellant had failed to establish the relationship of landlord and tenant between the parties in respect of the said passage and held that it was beyond his jurisdiction to adjudicate upon the passage for the garage in dispute and directed the appellant to seek remedy through the competent civil Court. The impugned order has given rise to the present appeal.

2. I have heard learned counsel for the parties who have also led me through the record of the case.

3. The learned counsel for the respondent had raised a preliminary objection that the impugned 'order was not a final disposal of the ejectment application and the present appeal was incompetent under section 24 of the Cantonments Rent Restriction Act, 1963. His contention was that the Rent Controller had not finally disposed of the ejectment application and that the impugned order was only interlocutory or an interim order against which no appeal was competent. In this connection he also relied upon the case of Riaz Khalil and others v. Muhammad Shafiq 1980 S C M R 294.

4. I have very anxiously considered the aforesaid preliminary objection. The perusal of the documents filed alongwith the aforesaid application of the respondent would reveal that the matter of the passage in dispute was controversial between the appellant and the Settlement Authorities. The former is transferee of the garage in dispute, which belonged to a non-Muslim evacuee. Subsequently the appellant submitted applications to the Cantonment Executive Officer/ Deputy Settlement Commissioner and the Deputy Commissioner Peshawar for the purpose of transfer of the passage also in his favour or for clarification of the transfer deed to include the passage as having been transferred in his favour alongwith garage in dispute and other property. The appellant did not deny the making of the aforesaid applications before the aforesaid authorities and it will show that he did not get any redress or relief through the said authorities. It was, therefore, established that the title of the appellant, which he purportedly claimed, over the passage in dispute was doubtful. Normally the transfer or alienation of a property also presupposes the transfer of the amenities and appendages appertinent to the property transferred. Whenever any property is transferred or alienated it is presumed that the passage thereto also stands so transferred or alienated. Normally this should also be the position with regard to the garage in dispute in the present proceedings but for the applications by the appellant to the Deputy Settlement Commissioner and the Deputy Commissioner. It shall thus, be seen that the matter of tile passage to the garage was not free from any defect.

5. The perusal of the rent deed, copy of which has been annexed alongwith the ejectment application, would reveal that the tenant was given on rent the garage situated beneath house No.86/P Saddar Lane, Peshawar Cantonment. The rent deed does not show that any passage was also needed for the garage let on rent. It is also a fact that the appellant did not consider himself to be owner of the passage in dispute and the authorities who had transferred the garage to him also did not consider that the appellant was also transferee of the passage pertaining to the garage. In this view of the matter the passage in dispute assumes an important role and taking into consideration the aforesaid circumstances and wording of the rent deed, it can safely be concluded that the appellant had yet to establish that he was landlord of the passage and had also let it on rent to the respondent alongwith the garage.

6. It shall .be seen from the aforesaid discussion that the preliminary objection raised by the learned counsel for the respondent had a direct bearing on the question whether the ejectment application was competent in so far as the passage was concerned and whether the impugned order can be termed as an interlocutory order.

7. In view of the aforesaid circumstances mentioned in this judgment it shall not be difficult to presume that the ejectment application pertains to two properties, one is the garage and the other is the passage thereof. In so far as the second property is con-served, it shall also be seen that in view of disputed position it cannot be presumed that the same was also let on rent alongwith the garage. As such the appellant failed to establish that he had also given the passage in dispute to the respondent on rent. The appellant, therefore, failed to establish the relationship of landlord and tenant between the parries in, so far as the passage is concerned. The learned counsel for the appellant contended that the Rent Controller did not allow the appellant an opportunity to produce evidence and that he also failed to frame an issue with regard to the relationship of landlord and tenant between the parties in respect of the passage. I have also considered this aspect of the case very minutely. No doubt a formal issue was not framed but sufficient documents had come on the record to decide this controversy one way or the other effectively. It is also noteworthy that the appellant did not request the Rent `Controller to give him an opportunity to produce evidence with regard to this dispute. He had given adjournment to the parties to argue the case and if the appellant wanted he could apply to the Rent Controller to allow him to produce evidence. Needless to say that proceedings under the Act are of summary nature and Civil Procedure Code is not applicable to them. Even otherwise the appellant did not challenge the authenticity of the documents filed alongwith the application of the respondent. This objection is, therefore, not tenable. For the aforesaid reasons the impugned order of the Rent Controller is not open to any challenge by the appellant.

8. The question whether the impugned order is an interim order or a final disposal of the matter can now be very conveniently answered. In so far as the passage in dispute is concerned the impugned order has finally determined that with regard to it the Rent Controller had no jurisdiction and the appellant should seek his remedy in a competent civil Court. The Rent Controller has come to a definite conclusion that on the material available before him the appellant had failed to prove the jurisdiction of the Rent Controller over the passage in dispute for the reason that he had failed to establish the relationship of landlord and tenant between the parties with regard to the passage. It shall thus, be seen that in so far as the passage is concerned, the impugned order operates as a final disposal of the matter by the Rent Controller. I am afraid the case relied upon by the learned counsel for the respondent does not come to his help. The matter of jurisdiction of the Rent Controller with regard to the passage was decided against the appellant and the Rent Controller held that he had no jurisdiction to proceed in respect of the passage in dispute. As such the ejectment application had been finally disposed of in so far as the passage was concerned. Had the Rent Controller decided that he had jurisdiction to proceed in the matter, of course in that case the order of the Rent Controller could be termed as interim or interlocutory order because the matter would be still pending with him but the refusal of the Rent Controller to exercise jurisdiction in respect of the passage tantamounts to finally determining the matter of passage pending with him. The impugned order cannot, therefore, be termed as an interim order. There should now be no hesitation in discarding the preliminary objection of the learned counsel for the respondents.

8. For the aforesaid reasons I uphold the impugned order of the learned Rent Controller. The appeal is dismissed. There shall be no order as to costs. M.Y.H./596/P Appeal dismissed.