1989 PLP 2042 (SCMR)

Nemo for Respondents. Date of hearing: 7th June, 1989. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by the tenant side in a Rent Restriction matter; against the dismissal of their first appeal by the High Court; whereby, the order of their eviction passed by a learned Rent Controller was brought under challenge.

2. The main controversy which remains to be resolved between the parties relates to the issue of relationship of landlord and tenant. The property in dispute stood transferred under the Settlement Laws enacted for the disposal of evacuee property. The suit property/portion has been claimed by each party to be included in its ownership after transfer under the said laws. The dispute with regard to the transfer, in fact the extent of transfer had earlier come to the High Court in its writ jurisdiction and was decided against the petitioner s side.

3. No doubt the earlier disposal was vis‑a‑vis, the Settlement Laws and this time the dispute related to and arose under another Law; namely, Cantonment Rent Restriction Act, 1963. However, after at length arguments by learned counsel on this point we do not agree with him that the question of title when it arises in the Rent Restriction forum cannot be decided with reference to the final decision by the Settlement Authorities and/or by the superior Courts in the Geld' of the Settlement Laws. The learned Judge m the High Court, therefore, was not in error when making the following observation on this issue:‑ "The learned counsel for the appellants has contended that there are two separate properties being numbers 180 and 181 out of which property No. 180 was transferred to the appellants and property No. 181 to the respondents and further that the appellants were in possession of property No. 180 with which the respondents have no concern: Similar arguments were raised by the appellants, who were the petitioners in aforementioned writ petition, and were repelled by this Court in W.P. 985‑R/1971. It was held that the Settlement Department from the very beginning had treated the two properties as one property and the appellants were transferred upper portion while the respondents were allowed the transfer of the lower portion. It was further clarified that the appellants were allowed nothing on the lower portion at all. In face of this finding by this Court it is not open to the petitioners to reagitate or to reopen the matter which stands conclusively and finally decided. It is also to be noted that Nisar Ahmad the son and attorney of the respondents while appearing as R.W. 3 has categorically admitted that ‑his father was transferred the upper portion alone. The learned Rent Controller was as such correct in holding that the respondents were the transferees of the ground floor, a part of which is in possession of the respondent who by operation of law had become the tenant." In the grounds of this petition for leave to appeal a specific point has been raised in connection with the aforequoted finding and decision of the High Court on the main controversy:‑ "That a most complicated question of title having arisen, was it not obligatory or desirable for the learned Rent Controller to refer the question to the competent Civil Court for adjudication or in the alternative to require parties to seek a declaration from the competent forum."

4. In this behalf the following observation by the High Court in the judgment in Writ Petition No. 985/R of 1971, has been relied upon:‑ That "if at all there was a mistake it was a mistake substantial in nature, and far reaching in effect and the necessary steps then had to be taken to get the question, now raised, resolved"

5. The argument advanced is that in the facts and circumstances of this case the Rent Controller and/or the High Court should not have treated the judgment of the High Court in Writ Petition No. 985/R of 1981 as having a final effect regarding title, vis‑a‑vis, the relationship of landlord and tenant, And further that whatever the results in the hierarchy of rent restriction proceedings it should have been kept open for a Court of general jurisdiction to decide the g question of title. This argument has, prima facie, force. We accordingly convert this petition into appeal to examine this question. The other questions raised before the High Court and/or advanced m support of this petition have no substance and most of them have adequately been dealt with by the High Court. The other pleas raised in this petition thus are repelled.

6. Security Rs.5,

000. The appeal shall be prepared on the present record with direction to parties to file all essential documents. The parties should come prepared also on the question; as to whether, while maintaining the order of eviction the petitioners should not be permitted to agitate the question of title before the Court of general jurisdiction. M.A.K./W‑72/S Leave granted.