1984 PLP 21 (SCMR)

MUHAMMAD AFZAL ZULLAH J.‑‑Leave to a from judgment dated 17‑12‑1975 of the Lahore High court where by regular second appeal filed by respondents Nos. 1 and 2, was partly allowed. The said respondents had filed a suit seeking declaration that an order passed by a learned Rent Controller at the instance of the present petitioners (defendants Nos. 1‑3) on 10‑6‑1965 directing the eviction of respondent No. 3, was on account of collusion by the petitioners with the said respondents and thus being illegal and void, was ineffective against the rights of the said plaintiffs, who, it was further prayed in the suit, should be declared as owners in possession of the suit property, a house. Respondents Nos. 4 to 6 were subsequently added as defendants Nos. 5 to 7 in the suit. The present petitioners defended the suit and on the pleadings of the parties, the following issues were framed :‑‑ (1)Whether suit is incompetent in the present form ? O. D (2)Whether the suit has been incorrectly valued for the purposes of court‑fee and jurisdiction ? O.D. (3) Whether plaintiffs have locus stand to bring this suit ? O.P. (4) Whether the plaintiffs are in possession of the suit house as its owners if so, what is its effect ? O. D (5) Whether order dated 10‑5‑1965 passed by Rent Controller, Multan Cantonment is void, illegal, inoperative and ineffective upon the rights of the plaintiffs? O. P. (6) Whether defendants are entitled to special. Costs under section 35‑A, C. P. C., if so, to what extent ? O.D. (7) Relief ? The learned trial Judge decided all the issues in favour of the plaintiffs (respondents 1‑2 and 4‑6) and accordingly decreed the suit. On petitioners' first appeal, a learned District Judge reversed the findings specifically on Issues Nos. 4 and 6, held that the petitioners were the owners and further that respondent No. 3 being in possession as tenant, was rightly ejected by the learned Rent Controller on 10‑5‑1965. With these findings the suit was dismissed. Respondents Nos. 1 and 2 then filed a regular second appeal in the High Court challenging the judgment of variance by the first appellate Court. It appears that during the hearing of the arguments the learned counsel appearing for the parties agreed that the lower, appellate Court should not have decided the question of title because as noted in the High Court judgment, the plaintiffs' suit was essentially to avoid an order of ejectment passed by the learned Rent Controller. It was in pursuance of this approach by the parties which had the approval of the learned Judge hearing the appeal, that it was clearly observed in para. 7 of the impugned judgment (while dealing with the grievance of respondents Nos. 4 and 6 who claim to be co‑owners with respondents 1‑2) that: ‑ "However, in view of the fact that the declaration about the ownership prayed for by the appellants (respondents Nos. I and 2 herein), has already been refused I do not think any order on this appeal denying a right of co‑ownership to respondents 5‑7 (respon dents 5 to 6 herein) is called for." That being the position, the learned Judge tried to resolve the question of possession for purpose of ejectment proceedings before the Rent Control ler with reference to the evidence led by both the sides. It was held that Abdul Karim respondent was not at all in possession of the house at the relevant time when the petitioners sought his ejectment and that in reality, respondents 1 and 2 were in possession. That being so, the ejectment order passed by the learned Rent Controller against respondent No. 3, it was held by the High Court, would not operate against respondents 1 and

2. Accordingly, a decree was passed in favour of respondents 1 and 2 and against the petitioners for permanent injunction "not to eject the appel lants on the basis of the order of the Rent Controller referred to above" Thus, the above result of the entire proceedings would show that the decree passed by the learned trial Court in favour of respondents 1 and 2 allowing the entire claim made by them in the plaint was modified in the High Court in that the claim regarding permanent injunction only was allowed on the finding that at the time of the ejectment order concerned, respon dents 1 and 2 were in possession of the house in dispute and not respondent No.

3. The petitioners then sought leave to appeal from the judgment of the High Court on various grounds. We have heard the learned counsel. The' question of title not having been finally decided, the impugned judgment affects the petitioners only regarding the question of ejectment of the occupants of the house in dispute which according to the findings of fact reached by the learned Single Judge in the High Court are respondents 1 and 2 and not respondent No.

3. It essentially is a finding of fact which is sought to be reversed by the petitioners. No question of law has been raised by the learned counsel in support of this petition and he has not been able to satisfy us on the question as to why the findings of fact reached by the High Court should be interfered with. Regarding the question of interference by the High Court with an appellate judgment of variance on questions of fact, suffice it to observe that the impugned judgment in no way has violated any principle laid down by this Court in Madan Gopal and 4 others v. Maran Bepari and 4 others (P L D 1969 S C 617), which dealt with the scope of second appeal, when it is from a judgment of variance. This petition accordingly is dismissed. M. Z. M. Leave refused.