1994 PLP 508 (SCMR)

Sardar Muhammad Akram, Advocate Supreme Court and S. Abid a Nawaz, Advocate‑ on‑Record for Appellants. Masood Javid, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑ on‑Record for Respondents. Date of hearing: 15th October, 1990. SAAD SAOOD JAN, J.‑‑‑This is an appeal by special leave from the judgment of the Lahore High Court upholding an order of eviction passed by the Additional Rent Controller, Lahore Cantonment, against the appellants.

2. There are two small contiguous houses bearing properties Nos.180 and 181 situate in the Lahore Cantonment. House No.180 has one room on the first‑floor and one room on the ground‑floor while House No.181 has only one room on the ground‑floor. They were owned by the same evacuee namely, Lala Ghasi Ram. For some reason they were treated as one property and transferred to Abdul Latif, predecessor‑in‑interest of the respondents, on his NCH form. Waheed Ullah Khan, appellant No.1, who was a local, sought transfer of House No.180 on the basis of his possession. His form was also accepted and House No.180 was transferred to him. Abdul Latif filed an appeal which was allowed by the Additional Settlement Commissioner and the transfer made in favour of Waheed Ullah Khan was set aside. Waheed Ullah Khan filed a revision petition before the Settlement Commissioner. By his order dated 25‑7‑1963 the Settlement Commissioner again treating the two houses as one property divided it horizontally. He transferred the first‑floor to Waheed Ullah Khan and the ground‑floor to Abdul Latif. Subsequently, Waheed Ullah Khan filed further applications before the Settlement authorities but without any success. Later, a permanent transfer deed was issued in favour of Abdul Latif in accordance with the order of the Settlement Commissioner. Thereafter, the portions respectively transferred to the parties were demarcated by the Settlement authorities in the manner indicated by the Settlement Commissioner. Waheed Ullah Khan filed a writ petition in the High Court to challenge the basis of demarcation but his petition was dismissed.

3. The dispute in this appeal relates to a room on the ground‑floor. On 23‑5‑1978 the respondents filed an application for the eviction of the appellants from this room. The appellants resisted the application with the plea that the relationship of landlord and tenant did not exist between the parties. On the basis of the transfer documents issued to Abdul Latif, the learned Additional Rent Controller held that the respondents were the transferees of the room in dispute and that the appellants were their tenants therein. As the appellants did not deny that they had not paid any rent to the respondents, the learned Additional Rent Controller directed their ejectment. The appellants filed an appeal before the High Court. A learned Single Judge affirmed the findings of the learned Additional Rent Controller and dismissed the appeal.

4. In support of this appeal it is contended on behalf of the appellants that Houses Nos. 180 and 181 were two different properties and under the Settlement laws both could not be transferred to the same person. It is unnecessary to examine this plea for the reason that rightly or wrongly the two houses were treated as one property by the Settlement Commissioner and on that assumption they transferred the entire ground‑floor including the room in dispute to Abdul Latif. The order of the Settlement Commissioner in this regard could not be challenged in proceedings before the Additional Rent Controller. It may also be noticed that this very plea was taken by Waheed Ullah Khan in the writ petition which he had filed in the High Court. It was dismissed with the following observations: "From the very beginning it appears the two properties 180 and 181 have been taken to be one property particularly when D.S.C. passed the order of transfer. Besides, this is not a question to be examined in this jurisdiction at this stage for it is too late to do so. They were so treated to be knowledge of the parties and without objection from them. Therefore such an objection on facts cannot be taken now." Waheed Ullah Khan was apparently satisfied with the judgment in the writ jurisdiction for he did not agitate the matter any further. It, therefore, does not lie with him now to re‑open the controversy with regard to propriety of treating two houses as one property for the purpose of settlement. We do not find any force in this appeal which is hereby dismissed with costs. AA./W‑121/S Appeal dismissed.