1991CLC99 (PLP)

M. Iqbal for Respondent No.1. Nemo for Respondents Nos.2 and

3. Date of hearing: 7th July, 1990. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a petition under section 13 of the Punjab Urban Rent Restriction Ordinance 1959 filed by Sh. Muhammad Hanif petitioner against Muhammad Nisar respondent No.1 with respect to a portion of Property No. D 2146 situated inside Lohari Gate, Lahore, which was accepted by the Rent Controller on 4‑11‑1989 but was dismissed by the Addl. District Judge Lahore on 3rd of May, 1990.

2. In the petition for ejectment filed by him the petitioner had claimed to be the successor of Abdur Rashid son of Abdul Ghani who had purchased the property from Bilal Ahmad son of Bashir Ahmad. According to his case upper portion of the property has been leased out by Abdur Rashid to respondent No.1 at a monthly rent of Rs.100 per month and the respondent had executed rent deed in favour of Abdur Rashid deceased on 2nd of November, 1978. The ejectment was sought on the ground of default and personal use. In the written statement filed by the petitioner the relationship of landlord and tenant was denied and instead it was stated that the transfer of the property in favour of Bilai Ahmad the predecessor of the petitioner was found to be bogus by the Settlement Authorities on 3rd August, 1983 and as such neither the petitioner nor his predecessor has any right over the property. Itwas further pleaded that earlier an ejectment petition was filed by the petitioner which was dismissed by the Rent Controller on 17‑7‑1985 in view of the order of the Deputy Settlement Commissioner holding the transfer of the property in favour of Bilal Ahmad to be fictitious and as such the present proceedings were barred by section 14 of the Punjab Urban Rent Restriction Ordinance 1959. It was stated that the petitioner had already filed a civil suit for declaration of his title which was pending in the Civil Court and as such the petition was not maintainable. After framing the relevant issues and recording the evidence of the parties the learned Rent Controller held that respondent No.1 had executed rent note in favour of the petitioner and was, therefore, his tenant. The ejectment petition was accepted and respondent No.1 was ordered to be evicted from the premises in dispute. Aggrieved by this order of the Rent Controller respondent No.1, filed an appeal which was accepted by the Additional District Judge who held that the petitioner had failed to prove that respondent No.1 had executed any rent note in his favour and further that the petitioner had no title to the property. This judgment of the Addl. District Judge has been assailed by the petitioner by filing this constitutional petition.

3. Mr. Ghulam Haider Alghazali, learned counsel for the petitioner contended that the finding of the Additional District Judge that the rent note was not executed by respondent No.1 is based upon misreading of evidence and failure to consider material on record. The learned counsel also pressed into service the principle of estoppel as contained in Article 115 of the Qanun‑e -Shahadat, 1984. It was contended that the ejectment petition filed by the petitioner was not hit by section 14 of the Punjab Urban Rent Restriction Ordinance 1959.

4. There is no dispute between the parties that the property was at one time evacuee in nature and according to the petitioner, was transferred to Bilal Ahmad who sold it to Abdur Rashid, on whose death the petitioner claims to have inherited the property in question. By the order dated 3rd August, 1983 the notified officer (Deputy Settlement Commissioner) held that the transfer in favour of Bilal Ahmad was bogus and fictitious. It is thus obvious that whatever title the petitioner had in the property ceased to exist from the aforesaid date and the petitioner could not claim to be the owner of the premises. As regards the contention of the learned counsel for the petitioner that respondent No.1 was estopped from denying the status of the petitioner as a landlord, it is to be noted, as held by the Addl. District Judge, there is no estoppel against a plea that the person had ceased to be the owner or the landlord of the premises on account of development which had taken place after the beginning of the tenancy. The question stands conclusively decided by the Supreme Court in Province of Punjab v. Abdul Ghani (P L D 1985 S.C. 1) wherein it was observed:‑‑ "In so far as this general rule of estopple vis‑a‑vis a tenant and landlord is concerned, it cannot have uncontrolled application to the cases to be determined under the special rent restriction laws. It will depend upon the facts and circumstances of each case." It was further held that:‑‑ "The denial is regarding the change of position by the said transfer. The principle and rule embodied in section 116, Evidence Act is not attracted in all cases of dispute over title between landlord and tenant. One exception as in this case is the denial vis‑a‑vis a stage after "the beginning of the tenancy". Another condition is that the denial should be during the continuance of the tenancy and not after the determination thereof." In view of this authoritative pronouncement I am not in a position to accept the contention of the learned counsel for the petitioner. Consequently, the plea that a rent note was executed in favour of petitioner by respondent No.1 or not pales into insignificance. Even if it be accepted that respondent No.1 had executed any rent note in favour of the petitioner, since he ceased to have any title of the property as a result of the determination by the Settlement Authorities, the petitioner could not claim to be the landlord or the owner of the premises.

5. Be that as it may by the order of the Deputy Settlement Commissioner dated 3‑8‑1983 a serious doubt had been cast on the title of the petitioner to the property. For this reason he had filed a civil suit claiming a declaration which is still pending. In these circumstances the rule laid down by the Supreme Court in Rehmatullah v. Ali Mohammad and another (1983 S C M R 1064) becomes fully attracted and the Additional District Judge was correct in dismissing the ejectment petition filed by the petitioner. It is however, to be clarified that if the petitioner succeeds in having the title declared in a Court of competent jurisdiction it shall be open to him to file a petition for ejectment against respondent No.1 and any finding in the impugned judgment of the Additional District Judge in the present proceedings shall not operate as bar. In view of the observations made above, this petition is dismissed with no order as to costs. AA./M‑2347/L Petition dismissed.