1985 PLP 1001 (SCMR)

M.S.H. QURAISHI, J.‑‑ The petitioner is aggrieved by the dismissal of his writ petition by the Rawalpindi Bench of the Lahore High Court, which he had filed to challenge an order of ejectment passed against him by the Rent Controller, Attock, and affirmed in appeal by the Additional District Judge, Attock.

2. Shops No.S‑187 and S‑188, from which the ejectment of the petitioner had been sought, had been transferred to Sher Muhammad respondent through an auction held on 7‑3‑1960 and a P.T.O. in his favour had issued on 17‑7‑1961. The petitioner had started paying rent to him from June, 1960. It appears that the Evacuee Trust Property Board had started asserting that the shops were evacuee trust property. Sher Muhammad finding his title under a cloud, refunded the entire amount received by way of rent from the petitioner upto April, "1969 and in return the petitioner gave a written undertaking dated 2‑5‑1969, inter alia, to the following effect:‑ The Settlement and Rehabilitation Commissioner, on an application made before him by the Chairman, District Evacuee Trust Committee, under section 4(9) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and after hearing Sher Muhammad granted, on 29‑6‑1971, a declaration that the property was evacuee trust property. He, however, did not cancel the transfer of the property from the name of Sher Muhammad. Ultimately, a Transfer Order issued in his name on 25‑10‑1982. Later, on 7‑2‑1983, he moved an application for ejectment .of the petitioner on various grounds including that of default. The petitioner, however, denied Sher Muhammad's title to the property which led to the framing of a preliminary issue in regard to the existence of relationship of landlord and tenant between the parties. The issue was found against the petitioner and as he had admittedly not paid rent either to the Auqaf Department or to Sher Muhammad, he was ordered to be ejected.

3. The High Court held that Sher Muhammad could not be divested of his title as the transfer had been made in his favour prior to 1968; that the document executed by the petitioner "was of no consequence in law to deny his (Sher Muhammad's)‑ title" and that the petitioner having entered upon the shops as a tenant under him could not deny his title even though the rent had been subsequently returned to him by Sher Muhammad.

4. It is not denied that the property had stood transferred in the name of Sher Muhammad by a P.T.O. issued on 17‑7‑1961. The transfer had not only never been cancelled but had also been protected by the Chief Settlement Commissioner's instruction contained in Memo. No.1052‑POL/71, dated 17‑6‑1971 in which it had been 'directed that: "The transferees to whom evacuee urban trust properties have been transferred prior to June, 1968, would not be disturbed. The price of such property, if received from the transferees or the amount of claim against which the properties have been transferred, would be paid by the Settlement Organization to the Evacuee Property Trust Board in due course on receipt of necessary particulars from them." The declaration granted by the Settlement Commissioner, dated 29‑6‑1971, of which a mention has already been made, would, therefore, not affect the transfer made in the name of Sher Muhammad prior to 1968. Even otherwise, the declaration would only have the effect that the transfer price would be paid by the Settlement Department to the Evacuee Trust Property Board. The transfer already made in favour of Sher Muhammad, therefore, subsisted. The Transfer Order issued in his favour on 25‑10‑1982, if at all, only helped to clear the cloud. In any case, the Controller could not go behind the Transfer Order. Moreover, the petitioner by his own undertaking given in writing on 2‑5‑1969, was bound not only to pay Sher Muhammad back the amount which had A been refunded to him but also to pay him future rents. Therefore, even if there be any force in his contention that Sher Muhammad's title had been under a cloud, he could not after the issue of the Transfer Order still dispute his title.

5. In the circumstance, we find no merit in this petition. Learned counsel has, however, prayed for allowing the petitioner a short time to vacate the shops, to which no objection has been raised on behalf of the respondent. By consent of the parties, we allow the petitioner time upto 31‑3‑1985, by which date he undertakes to voluntarily deliver possession of the shops to Sher Muhammad if possession has not already been taken, and not to resist the execution proceeding on any ground. Subject to this direction, the petition is dismissed. M.I. Petition dismissed.