2005 PLP 1881 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been directed against the judgment dated 13-7-2001 passed by a learned Single Judge of Lahore High Court, Lahore, in a civil revision arising out of a civil suit.

2. The dispute in the civil suit related to shop bearing No.99 situated in Town Committee Naushera, Tehsil and District Khushab. The case of respondent in the civil suit was that the shop was an evacuee property which was in his possession since partition and the same being situated in rural area, stood transferred to him under Revised Settlement Scheme No.VII framed under Displaced Persons (Compensation and Rehabilitation) Act, 1958. The claim of respondent was that the shop was rented out to the petitioner in 1978 but subsequently, the petitioner by setting up the adverse claim of the ownership, denied the title of respondent. Consequently, the respondent filed an ejectment petition against the petitioner which was allowed by the Rent Controller but the ejectment order was reversed by the Appellate Court in appeal filed by the petitioner, and further the order of Appellate Court was upheld by the High Court in writ petition and by this Court in a petition under Article 185(3) of the Constitution, filed by the respondents vide judgment, dated 21-1-1992 wherein it was observed that the dispute relating to the title of the property would not be adjudicatable by the Rent Controller. In consequence thereto, the respondent filed a suit for possession in the civil Court. The petitioner contested the suit on various grounds including the plea of ownership of shop and the learned trial Judge in the light of pleadings of the parties and the evidence brought by them in support of their respective claims, concluded that the respondent being in possession of shop since partition, would be deemed to be its owner under Settlement Scheme No.VII. The claim of the petitioner as owner by purchase of the shop from Shah Muhammad, predecessor-in interest of Ahmed Nawaz, respondent herein, was found baseless with the result that the pivotal issue qua the ownership of the shop was decided in favour of respondent and the suit was decreed vide judgment, dated 14-12-1993. However, the judgment and decree passed by the trial Court in the suit was reversed by the learned District Judge in appeal filed by the petitioner vide judgment, dated 27-11-1995. The petitioner filed a civil revision in the Lahore High Court, Lahore and a learned Single Judge in Chambers, having dilated upon the matter in detail, allowed the civil revision as a result of which the judgment and decree passed by the trial Court stood restored. The learned Judge in the High Court held that the shop was an evacuee property and being a rural building, would be deemed to have been transferred to the respondent under Settlement Scheme No.VII and that the claim of ownership set up by the petitioner was unfounded.

3. Learned counsel for the petitioner has contended that the question of title having been decided in the earlier round of litigation in the ejectment petition at the level of this Court, could not be reopened in the suit and the learned Judge in the High Court was misdirected in law and also in facts to hold that Mian Muhammad, would be deemed to be the transferee of shop under Settlement. Scheme No.VII. Learned counsel argued that Mina Muhammad sought ejectment of the petitioner from the shop claiming himself the owner of the shop but the ejectment petition was ultimately dismissed on the ground that relationship of landlord and tenant between the parties did not exist and that further the PTO subsequently produced by him in civil suit was found not a genuine document, therefore, with the exclusion of the PTO from consideration there was no evidence on record in proof of the title of respondent. The learned counsel submitted that in these circumstances, the learned Judge in the High Court was not justified in reversing the finding of the Appellate Court on a question of fact through appraisal of evidence in the revisional jurisdiction.

4. The Revised Settlement Scheme No.VII under Displaced Persons (Compensation and Rehabilitation) Act, 1958 was published on 16-4-1966 for the disposal of evacuee buildings and sites situated in the rural areas and the different categories of properties falling within the ambit of Scheme were to be transferred to their occupants as per their entitlement and fulfilment of the conditions contained in the said Scheme.

5. The claim of the petitioner was that he having purchased the shop from Shah Muhammad predecessor-in-interest of Ahmed Nawaz respondent No.7 was in its possession in his own right and in support thereof in addition to his own statement, also produced the copies of document pertaining to the ejectment proceeding of the shop in question. This is not disputed that except Mian Muhammad predecessor-in-interest of respondents Nos.1 to 6, no other person at any stage claimed transfer of shop under Settlement Scheme No.VII and under the said Scheme only an occupant of the shop would be entitled to its transfer. We find that it was not the case of petitioner that he purchased the shop from a person who was entitled to its transfer or who purchased it from a transferee, therefore, his claim of ownership by purchase, would be without any foundation. There is also no evidence on record to show that in what manner, Shah Muhammad, from whom the petitioner purchased the shop, acquired the title. We having perused the record, have not been able to find out any reason to differ with the learned Judge in the High Court having discussed the matter in detail, held that respondent being in possession of shop since partition, would be entitled for its transfer under Settlement Scheme No.VII and the claim set up by the petitioner was without any basis. The denial of the title in the ejectment proceeding may be relevant to determine the question of relationship of landlord and tenant but the denial of title in the civil suit, through oral assertion or on the basis of verdict given in the ejectment petition regarding the non-existence of relationship of landlord and tenant, without any other proof, would not defeat the title of rightful owner.

6. Learned counsel for the petitioner has not been able to persuade us that the finding of fact of the two Courts on the pivotal issues relating to the ownership of shop and the nature of possession of petitioner, was A the result of misreading or non-reading of evidence or was suffering from jurisdictional error or from any other legal infirmity calling for interference of this Court.

7. For the foregoing reasons, this petition fails and the same is accordingly dismissed. Leave is refused. M.H./G-28/S Petition dismissed.