1994 PLP 1158 (CLC)

Syed Fazal‑ur‑Rehman for Respondent No.

1. Muhammad Zaman Qureshi for Respondent No.

5. Date of hearing: 2nd December, 1992. This judgment shall dispose of Writ Petitions Nos. 199/11 and 240/11 of 1991 involving identical questions of law and facts and arising out of the same impugned order dated 29‑9‑1991.

2. The dispute in this case relates to property bearing No. 1/80, Mohallah Khawajgan, Gujrat City, an Evacuee Trust Property. This was in possession of Hafiz Muhammad Ismail, father of Mian Muhammad Ibrahim and Muhammad Yusuf, who have filed separate writ petitions to challenge the impugned order. The admitted facts are that Hafiz Muhammad Ismail was tenant of the Evacuee Trust Property. He died in 1953 leaving behind Muhammad Yusuf, Muhammad Ibrahim (writ petitioners), Hafiz Abdul Majeed (sons) and a daughter Ghulam Fatima and a widow. After the death of Hafiz Muhammad Ismail, neither the petitioners nor other legal heirs of the deceased moved any application for the grant of tenancy in their favour presumably because there was no specific provision in the scheme for the Management and Disposal of Urban Evacuee Property for transfer of the tenancy to the legal heirs of a deceased tenant. On 12‑12‑1986, the Evacuee Trust Department issued Circular No.MP (i)‑/1(2)/60‑A/13082 dated 12‑12‑1986, which is inter alia to the effect, "the tenancy of the property may be transferred to the legal heirs actually residing with the late tenant" Muhammad Yousuf petitioner claims to be in possession of the disputed property alongwith his brother Muhammad Ibrahim. The case of Muhammad Ibrahim is that he has been residing in the house in dispute with his late father while Muhammad Yusuf left the premises during lifetime of their father sometime in 1945, Muhammad Yusuf, however, asserted that after the death of his father in 1953, the property in dispute was occupied by his two sons (Muhammad Ibrahim and Muhammad Yusuf petitioners) jointly. It is also an admitted fact that after the death of the original tenant, the tenancy was never regularised in favour of either party nor it was heritable till a policy decision was taken in 1986.

3. It is, however, not necessary to examine respective contentions of the parties.. Suffice it to say that after thorough scrutiny of the material available before him, the Additional Secretary to the Federal Government, in the exercise of his revisional jurisdiction, recorded a finding of fact that none of the parties were actually residing in the disputed property. The operative part of the order reads thus:‑‑ "

7. The record does not explain as to how the tenancy could be transferred from the name of late Muhammad Ismail, father, to one son only i.e. the respondent. It is also a fact that both the petitioner and the respondent are residing in Lala Musa for quite sometime and are not living in this property. As the tenancy of the property was neither regularly transferred in favour of any of the parties nor is tenancy hereditary, I therefore order that possession of the property in question should be taken back from the occupants and it should be rented out by open auction in accordance with the Scheme." Clearly, the controversy raised herein is concluded by a finding of fact which is not open to scrutiny in these proceedings. In view of the above, both the writ petitions fail and are hereby dismissed, but there shall be no order as to costs. H.B.T./M‑1370/L Petitions dismissed.