1990 PLP 1210 (SCMR)

SAAD SAOOD JAN, J.‑‑‑This is an appeal by special leave from the judgment and order dated 22‑3‑1989 of the Lahore High Court whereby in exercise of its constitutional jurisdiction it set aside an order of eviction made by a Rent Controller and affirmed by the Additional District Judge, Lahore.

2. On 18‑6‑1984, the appellants filed an application under section 13, Urban Rent Restriction Ordinance against the respondent seeking his eviction from a portion of property No.94‑R‑154 situate on Multan Road, Nawan Kot, Lahore. They claimed that by a registered sale‑deed dated 15‑7‑1961 they had purchased the said property from one Rana Karam Elahi. In 1962 they leased out a portion of it to the respondent at the monthly rent of Rs.50. In 1981, by mutual agreement the rent was raised to Rs.500 per month. However, the respondent failed to pay them the rent from 1‑6‑1981. Apart from that, he had caused damage to the portion in his possession; further, they required the same for their own use.

3. The application was resisted by the respondent on a number of grounds. He denied that he was a tenant under the appellants and set up the plea of adverse possession. He stated that the land underlying the house was occupied by his father about 40 years earlier and had raised a structure thereon. After his father's death, he took over the possession of the house.

4. On the pleadings of the parties, the learned Rent Controller framed an issue to the effect: "Whether the relationship of landlord and tenant existed between the parties." In support of their case the appellants examined three witnesses apart from producing a number of documents including the sale‑deed by which they had purchased the property. On his part, the respondent relied entirely upon the testimony of five witnesses including himself. After considering the evidence of both the parties, the learned Rent Controller came to the conclusion that the portion in dispute belonged to the appellants and that the respondent was occupying the same as tenant under them. On the basis of these findings, he passed an order of eviction against the respondent. From the judgment of t11~ learned Rent Controller, the respondent filed an appeal which was heard by an Additional District Judge at Lahore. During the pendency of the appeal, the respondent moved an application under Rule 27 of Order XLI, Civil Procedure Code, to seek permission to file a number of documents including a provisional transfer order and a permanent transfer deed whereby the land un-deriving the property in dispute had been transferred to him to 1960. The learned Additional District Judge rejected this application mainly on the ground that the said transfer document did not relate to the property in dispute. After re-appraising the evidence, the learned Additional District Judge affirmed the findings of the Rent Controller and dismissed the appeal. The respondent then filed a constitution petition in the High Court to call in question the legality of the order of eviction.

5. Before the High Court the case of the respondent was that the Additional District Judge as well as the Rent Controller had grossly misread the record and that there was no proof that the portion from which his ejectment was being sought was part of property No.154. A learned Single Judge examined the evidence at some length and upheld the contention of the respondent that the portion in dispute had not been established beyond reasonable doubt to be part of property No.154. Accordingly, he accepted the constitution petition, set aside the order of eviction and observed that it was open to the appellants to approach "a Court of general jurisdiction to establish their title to the property in dispute and after succeeding they may initiate the ejectment proceedings if they are so advised." From the judgment of the learned Single Judge, the appellants have come in appeal to this Court.

6. It may be mentioned that the respondent has since filed a civil suit for a declaration to establish his title to the property in dispute. The suit is still pending.

7. In this case, the question whether the relationship of landlord and tenant existed between the parties depended upon the determination of two fats: first, whether the portion in dispute was part of property No.154 and, second, whether the respondent had been inducted into property as tenant by the appellants. The learned Additional District Judge as well as the learned Rent Controller were complete to determine these facts and they concurrently recorded their findings in favour of the appellants. That being so, the High Court could not have ordinarily, interfered with their findings in exercise of its writ jurisdiction. Reference in this context is invited to the case of Muhammad Hussain Munir v. Sikandar P L D 1974 S C 139 where it was observed that the jurisdiction created by Article 199 was not designed to empower the High Court to interfere with the decisions of Courts or Tribunals of inferior jurisdiction merely for the reason that in its opinion the decisions were wrong for, in that case it would make the High Court's jurisdiction indistinguishable from that exercisable in a full‑fledged appeal. These observations found favour in at least two other cases of this Court reported as Muhammad Sharif v. Muhammad Afzal Suhail P L D 1981 S C 246 and Muhammad Akhtar v. President, Cantonment Board, Sialkot 1981 S C M R 291. 8. 1n the appeal before us, the learned Single Judge thought that the Additional District Judge as well as the Rent Controller had grossly misread the record and that it had not been established beyond reasonable doubt that the property in dispute was part of property No.154. In support of this conclusion, the learned Single Judge referred to the site plan Exh.P.5 which related to property No.154/156 and the discrepancies in the sale‑deed and the case set up by appellants before the Rent Controller with regard to the boundaries of the property in dispute and the extent of the accommodation allegedly let out to the respondent. However, with due respect, he failed to notice that the identity of the property was never in dispute before the Rent Controller or the Additional District Judge. In their application for eviction, the appellants had made a definite assertion that the portion in dispute was part of property No.154. The respondent in his written statement did not dispute their assertion in this regard nor did he claim that the property in dispute was part of some other property bearing No.156 or some other number. In fact when he appeared in the witness box as his own witness he clearly conceded that the house in dispute bore No.154. Consequently, the ground upon which the learned Single Judge proceeded to set aside the order of eviction was not in controversy between the parties at all.

9. As already stated, before the Rent Controller, the respondent had taken the position that his father had found a plot lying vacant and built a house thereon. To substantiate his assertion he relied entirely upon oral evidence. As against that the appellants not only produced the registered sale‑deed showing. that they had purchased the property bearing No.154 from one Rana Karam Elahi but also placed on record extract from the register of Excise and Taxation Department which indicated that they were owners of property No.154 and that the respondent was a tenant under them. It was well within the competence of the Rent Controller as well as the Additional District Judge to prefer the evidence of the appellants to that of the respondent. The High Court should not have, therefore, disturbed their findings and proceeded on a ground which was not taken up by the respondent in the proceedings before the Rent Controller. 10. . For the reasons stated above, we accept this appeal with costs, set aside the judgment and order of the High Court and dismiss the constitution petition preferred by the respondent. AA./A‑682/S Appeal accepted.