1992 PLP 976 (MLD)

Petitioner is occupant of a Chaubara in a residential building‑‑‑house bearing Survey No.T‑861 at Purana Oila in Rawalpindi City. The building was non‑Muslim evacuee owned. Its disposal was put to an unrestricted auction by the Settlement Authority. Muhammad Rafiq gave the successful bid and purchased it in auction on 27‑2‑1964. Auction was confirmed in his favour on 2‑4‑1964. After payment of necessary dues, P.T.D. in respect of the building was issued to Muhammad Rafiq on 24‑3‑1966 by the Settlement Authority. It is Exh. A‑1 on Rent‑file. Muhammad Rafiq sold upper portion of the building Chaubara to Muhammad Ali for a consideration of Rs.40,000 through a sale-deed registered on 26‑10‑1987. Sale‑deed is ExhA‑2 on Rent‑file. New purchaser commenced a civil action for ejectment of the petitioner and brought an ejectment petition for this purpose against him on 6‑2‑1988 in the Court of a Rent Controller of Rawalpindi, Urban Area. Ejectment was claimed on two‑fold grounds of rent‑default with effect from the date of purchase and personal requirement of the property in dispute. Upon being served, petitioner appeared and contested the ejectment petition filed against him. It was stated in defence that he was a Kashmiri refugee, and, as such, allotted the Chaubara- in‑dispute. It was further stated that a house or premises allotted to a Kashmiri refugee could not be included in evacuee‑pool, as such, the respondent or his predecessor‑in‑interest were not the owners of the disputed Chaubara. It was also stated that a civil suit was being instituted to get Civil Court's verdict in, the matter on merits. It was pleaded that Chaubara in possession of the petitioner was not auctioned nor it could be auctioned under the law to any person. Further, auction of Chaubara in favour of Muhammad Rafiq and issuance of P.T.D. in his favour were denied. Substantial defence gleaned from the written statement appeared to be total denial of relationship of landlord and tenant between the parties, On 2‑4‑1988, Rent Controller framed following preliminary issue for settling the dispute between the parties. The issue reads:- (1) Whether the relationship of landlord and tenant exists between the applicant and respondent? O.PA. (2) Relief. Respondent gave evidence of two witnesses and himself appeared as AW‑3 in support of his case. In addition, copy of P.T.D. and sale‑deed were put on file. In rebuttal, petitioner appeared as R.W.1 and was supported by R.W.2. Apart from his own oral testimony and that of his supporting witness, no document was formally brought on record. An attempt made for introducing some documents in evidence for showing that he was a displaced person from the State of Jammu and Kashmir was foiled by an order of Rent Controller passed on 17‑11‑1990. In face of this record, Mr. Shaukat Ali Sajid, Rent Controller, Rawalpindi, found that relationship of landlord and tenant was not proved to exist between the parties, and, consequently dismissed the ejectment petition Died by the respondent, on 29‑1‑1991. Respondent preferred an appeal. It was heard by a learned Addl. District Judge, who allowed it on 23‑11‑1991 and directed ejectment of the petitioner from Chaubara in his occupation without further inquiry into the allegations of rent‑default, self requirement and gave him four months to vacate and hand over possession to respondent‑landlord. 1; is this order that is sought to be assailed in constitutional jurisdiction by the petitioner. It is contended by the learned counsel for the petitioner that the petitioner was a Jammu and Kashmir displaced person and being in possession of Chaubara was entitled to its transfer under the Evacuee Laws ‑‑‑Para. 19 of Settlement Scheme No.IV framed under section 16‑B of the Displaced Persons (Compensation and Rehabilitation; Act of 1958, since repealed. Proceeding ors the above premise., it was argued that the disposal of the property‑in‑dispute through auction, therefore, was not warranted. In support of the proposition, learned counsel referred to the cases in Ali Muhammad v. Hussain Bakhsh and others PLD 1976 Supreme Court 37, Muhammad Sultan Mir and others. v. M. Yousuf Hussain Dada and others 1984 SCMR 533, Civil Petition No.159‑R of 1984 decided on 19th May, 1985, Ali Khan v. Settlement Commissioner, (2) Muhammad Ramzan L.P.A. No.149 of 1968 decided on 12‑3‑1984 by a Division Bench of this Court, Writ Petition No.424‑R of 1970 decided on 12‑3‑1984 by a Division Bench of this Court, all laying down the rule that the property m possession of a displaced person from the State of Jammu and Kashmir was not transferable to any other person. Armed with this rule of law laid down by the Supreme Court and this Court, it was submitted that since the auction of the evacuee property in question was invalid, issuance of a P.T.D. on it basis would be a void act incapable of creating any legal effect, and hence, neither Muhammad Rafiq was owner of the property nor the purchaser from him. There is no cavil with the proposition canvassed by the learned counsel, but the difficulty arises in applying it to the facts of the case. There is no legal material on file to hold that the petitioner was a refugee from the State of Jammu and Kashmir. He claimed allotment of the Chaubara to him, but gave no proof of it. Also there is no proof of the petitioner having ever applied for transfer of the property in his possession and if he did apply, what was the order made on his request by the Settlement Authority. There is some indication available on the original record that the petitioner had instituted a civil suit in respect of the property‑in‑question against Muhammad Rafiq and Muhammad Ali and had applied for stay of rent‑proceedings under. section 10 of Civil Procedure Code. Respondent submitted a reply to the application fix stay of proceedings. His reply is dated 17‑12‑1990 and was taken on file by the Rent Controller on the same day, but from the order‑sheet, the application did not appear to have been finally dealt with by any order of the Rent Controller. Copy of the plaint in the suit filed by the petitioner, written statement of the respondent and issues raised for determination had not been put in evidence in the Courts below. So the nature of the controversy and claim put forward in it is not ascertainable from the existing records. Be that' as it may, the factum of the petitioner being a refugee from the State of Jammu and Kashmir is a disputed fact between the parties and required a factual injury for its final determination. That exercise cannot be made in the existing jurisdiction invoked by the petitioner against the orders made under Rent Laws. So far as auction of evacuee property and issuance of P.T.D. in favour of Muhammad Rafiq is concerned, independent of civil suit instituted after the commencement of ejectment proceedings, petitioner did not agitate it in the hierarchy of forums set up under the Settlement Laws or writ jurisdiction of this Court. Fate of civil suit instituted by the petitioner could not be predicated. Proceedings under Rent Laws are envisaged to be of summary nature. In, course of these proceedings, Rent Controller as well as the Court hearing appeal from his decision were precluded from questioning the transfer documents issued by the Settlement Authorities. The exercise can only be made by a Court of plenary jurisdiction. In proceedings of a quasi‑judicial nature, it may be idle to look for an elaborate inquiry from the Rent Controller to decide serious disputed questions of title to the property. Therefore, scrutiny of final transfer documents was neither reviewable nor questionable under Rent proceedings. There was no apparent or visible taint attaching to the P.T.D. in favour‑of Muhammad Rafiq. Also, there was no doubt or dispute that the petitioner was in possession of the property since before its transfer to Muhammad Rafiq. Therefore, per deeming provisions in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, since repealed, he shall be holding the property in his possession as a tenant of its transferee. Statutory relationship brought into being by deeming fiction of law shall continue to subsist. In my view, approach to the case of the learned Judge below looked to be correct and unexceptionable. There is sufficient material on file to feel convinced that preliminary issue has been rightly held in favour of the respondent and consequent ejectment order was not infirm. Since the petitioner has already taken the dispute about transfer of evacuee property in a suit to the Civil Court, I must refrain from commenting on its merits lest it deflects future course of litigation and affects its independent examination by the Court holding its trial. View taken of the matter by me finds ample support from the cases in Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064, Ghulam Muhammad v. Mst. Rashida Hamid and others 1989 SCMR 1763 and Kassim and another v. S. Rahim Shah 1990 SCMR 647 also referred to and relied upon by the learned Judge below. In view of aforesaid, writ 'I petition has little merit in it. Consequently, it is dismissed in limine. Records be returned. AA./M‑216/L Petition dismissed.