2001 PLP 2316 (YLR)

9. While repelling the arguments of the learned counsel for the appellants that the property in dispute is joint and co-sharers could not be evicted from the same, the learned counsel for the appellants vehemently argued that the property in dispute has been fully described in the eviction petition through boundaries and there is no co-sharer in the said property. If the other appellants have purchased some shops or land, the same lie outside the property in dispute.

10. I have heard the learned counsel for the parties and perused the record.

11. So far as the arguments of the learned counsel for the appellants that rent agreement dated 25-9-1982 Exh.P.W.I/1 and subsequent agreements which were executed between the appellants Nos.1 and 2/tenants and respondents Nos.1 to. 3/landlords from time to time were unregistered, hence had no value in the eyes of law is concerned, the same has no force at all. It is admitted that agreement Exh.P.W.1/1, dated 25-9-1982, Exh.P.W.l/3, dated 8-6-1987 and Exh.P.W.1/4, dated 21-5-1989 were unregistered. What to speak of raising any objection by appellants at the time of production/exhibition of said agreements regarding their admissibility being unregistered, it is interesting to note that the same were produced from the record of Municipal Committee Mingora, Swat by its Taxation Officer namely Ayub Jan, who was examined as P.W.1. The learned counsel for the appellants when confronted with the position that it was the Municipal Committee Mingora, Swat, which had produced the said agreements and now in second appeal the learned counsel can raise objection over the documents produced by them, the learned counsel had no convincing answer. Since the rent agreements were produced by Municipal Committee itself, therefore, the appellants cannot be allowed at this stage to dispute the same on technical grounds. Even otherwise the terms and conditions agreed upon between the parties through unregistered rent deed could be acted upon for the purposes of Rent Restriction Ordinance as held in Messrs Syed Brothers v. Messrs Film Exhibitors Limited and 10 others 1984 CLC 3434.

12. So far as the other arguments of the learned counsel for the appellants that the land in question was given on rent to various Vegetable and Fruit Commission Agents for construction of Vegetable Market and in case of eviction the said Commission Agents were entitled for the cost of superstructure, this argument has also no force at all. The perusal of agreement dated 12-10-1982 Exh.P.W.l/5 shows that the same was executed between Municipal Committee Mingora through its Chairman as party of the first part and Vegetable and Fruit Commission Agents, Mingora as party of the Second Part. respondents Nos.1 to 3 were not party to the said agreement, therefore, the respondents Nos.1 to 3/landlords were not liable for pay any amount for superstructure constructed over the land in dispute by the Vegetable and Fruit Commission Agents, who can claim the same from appellants Nos.1 and 2 (Municipal Committee Mingora) by filing a separate suit. Needless to mention here that the learned Rent Controller had appointed Commission to assess the value of superstructure which was submitted and the cost/value of superstructure has been determined by the said Local Commission.

13. The argument of the learned counsel for the appellants that the site plan submitted by the respondents Nos.1 to 3/landlords was not approved by the Municipal Committee, therefore, no eviction petition for reconstruction could be filed equally has no force. It is on record that the respondents Nos.1 to 3/landlords on the expiry of period of tenancy not only served legal notice Exh.P.W.2/2 upon the appellants but they also submitted site plan Exh.P.W.2/3 which was neither approved nor rejected by appellants Nos.1 and 2 with the mala fide intention to deprive the respondents Nos.1 to 3/landlords of the plea of re-constriction of their property. As per subsection (4) of section 79 of the Local Council Ordinance, 1979, the building application presented by the respondents Nos.1 to 3 was to be registered in the manner provided in the bye laws and was to be disposed of as early as possible, but not later than 60 days from the date of registration of the application and if no order was passed on the said application within 60 days of its registration, the same would be deemed to have been sanctioned to the extent to which it would not contravene the provisions of the Building Bye-Laws or of the Master Plan or Site Development Scheme if any. Relevant subsections of section 79 are reproduced hereunder for convenience:-- "(1) No person shall erect .......... (2) A person intending to erect or re -erect building shall apply for sanction in the manner provided in the bye-laws and shall pay such fees as may be levied by the Municipal Committee with the previous sanction of Government. (3) Where a plan to relay ......... (4) All building applications presented under this section shall be registered in the manner provided in the bye laws, and shall be disposed of as early as possible but not later than sixty days from the date of the registration of the application and if no order is passed on an application within sixty days of its registration, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of the Building Bye-laws or of the Master Plan or Site Development Scheme, if any. (5) A Municipal Committee ......... (6) A Municipal Committee ......... (7) Nothing in this

" As per the above quoted provisions of law the site Exh.P.W.2/3 was deemed to have been approved after sixty days of its submission and the same was placed on record without any objection from the other side. The appellants at the stage of second appeal cannot be allowed to raise any objection to the site plan. As per section 13(2)(vi) every person possesses right to improve his property in the best and most profitable manner. In Haji Allah Ditta v. Mst. Shahzadi Bilqis and another 1980 SCMR 41 it was held:-- "It is not necessary that a building must be so old and dilapidated that it is about to fall down before the landlord can be considered justified in wanting to demolish and reconstruct it. Every person has the right to improve his property; utilize the land on which the building is constructed in the best and most profitable manner and erect a new building if the old building is outdated although it might yet be habitated or sufficiently strong to last for another few years. " Ejectment on ground of requirement of premises by landlord for reconstruction can be sought if the rented premises is reasonably and in good faith required by landlord for reconstruction and the landlord obtained necessary sanction for reconstruction from the concerned Municipal Committee/Corporation. In the case in hand the respondents Nos.1 to 3 examined Barkat Ali, who was petitioner No.3 and attorney of other petitioners as P.W.2 though he was subjected to lengthy cross-examination but his veracity could not be shettered. The respondents Nos.1 to 3 have shown their bona fide by the fact that they were willing to invest a large money in constructing 60 shops over the property in dispute. In the above cited judgment 1980 SCMR 41 it was also held:-- "The mere fact that the landlord is willing to demolish the old building and invest a large amount of money in constructing a new one notwithstanding the tremendous increase in the cost of construction and the fact he is willing to undergo imprisonment on his failure to demolish the building or to reconstruct it within a specified period is sufficient to establish his bona fides. In this view of the, matter we feel that the petition has no merit and is dismissed as such."

14. The argument of the learned counsel for the appellants that Municipal Committee Swat was exempt from the application of Rent Restriction Ordinance also has no force in it. It is admitted fact that land owned by respondents Nos. 1 to 3 was given on rent to appellants Nos.1 and 2 tenants vide agreement dated 25-9-1982 Exh.P.W.1/1. The respondents Nos.1 to 3 being owners/landlords had every right to get the same vacated by filing eviction petition under Rent Restriction Ordinance, 1959. The Municipal Committee Swat was exempt from the application of the abovementioned law if it was the owner/landlord of the property in dispute. The appellants Nos.1 and 2 in para. 1 of the written statement filed by them admitted that the land in dispute was taken on rent from respondents Nos.1 to 3 for Vegetable and Fruit Market and execution of agreements were also not denied. Therefore, the exemption granted under section 3 of Urban Rent Restriction Ordinance shall -not be applicable to Municipal Committee Mingora Swat. In Muhammad Asghar v. Ikramuddin and another NLR 1981 UC 66 it was held: "There is no justification for importing the word 'exclusively' in the notification. The expression 'building or lands belonging to' has been used in a general sense. Even if the land belongs to a Municipal Committee and the superstructure to a lessee whose lease has expired, as has been claimed by the appellant in this case, the premises would be covered by the notification. The definition of building and land depending upon the circumstances might sometime overlap see PLD 1973 SC

218. If the contention of the learned counsel for the appellant to the fact that the superstructure belongs to the appellant while the land belongs to the Municipal Committee is correct (there is no such finding in favour of the appellant in the impugned order), even then the so-called building underneath which the land belongs to the Municipal Committee would be governed by the notification and the Rent Restriction Ordinance would not apply to such a property. Learned counsel also tried to argue that the respondent 1kramuddin was allowed to occupy only a part of the shop while the remaining part remained with the appellant who conducted his own business in the remaining part. Even if that be (there is no such finding of fact in the impugned order), the observations made above would apply to the so called shop which the appellant himself made the subject-matter of the ejectment application filed by him. The other argument of the learned counsel that the notification would apply to cases where one of the party is Municipal Committee is obviously misconceived -and is unfounded. There is no such indication in the notification. I agree with the learned First Appellate Court that this case is covered by the bar contained in the notification which, it is not denied, shall fall under section 3 of the Ordinance. That being so, the impugned appellate order is unexceptionable. There is no force in this appeal and the same is dismissed in limine." Similarly in Abdul Hameed v. Haji Abdul Karim 1988 MLD 1887 it was held:-- "Even otherwise, the question as to whether the nature of the construction of the show-case was such which could be covered by the definition of the word 'building' given in the late Ordinance or given in any English Dictionary, is a question of fact which could have been decided on the basis of evidence. Since no plea was raised of the nature sought to be canvassed before me, no issue was framed on that point and no evidence was recorded. Furthermore, admittedly the show-case belongs to the respondent and the tenancy was in respect of the show-case and not in respect of the Municipal land and, therefore, the exemption granted to the Khairpur Municipality from the application of the provisions of the late Ordinance to its properties, cannot be pressed into service by the appellant."

15. The argument of the learned counsel for the appellants that the property -in dispute is joint and co-sharers could not be vacated also has no force. There is no material evidence available on record to prove that the property in question, the boundaries of which have been specifically given in the eviction petition is owned jointly by the appellants Nos.4 to

9. Even if it is presumed for the sake of argument that the appellants Nos.4 to 9 have purchased a portion of property in dispute arid have become the owners thereof, even then the eviction petition filed by respondents Nos.1 to 3/landlords would be competent for the reason that the appellants Nos.1 to 9 were not tenants under respondents Nos.1 to

3. They were in fact sub tenants of appellants Nos.1 and 2 and notwithstanding the purchase by them of a certain share from the disputed property they could not - challenge the status of respondents Nos.1 to 3 as landlords qua the suit property. In Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913 it was held:-- "We have heard the learned counsel for the petitioner at considerable length and are of the view that as per the record the findings of the Courts below are unexceptionable. The learned counsel for the petitioner here before us admitted that the petitioner entered into the shop in dispute as a tenant under the respondent at a monthly rent of Rs.40 which was subsequently enhanced to Rs.60. He also admitted the execution of the rent deed. In view of this clear and categorical admission, the petitioner, notwithstanding the purchase by him of a certain share from the disputed property, could neither challenge the status of the respondent as landlady qua the suit property nor the existence of relationship of landlord and tenant between the parties. Therefore, under .no circumstances the petition for ejectment of the petitioner could be said to be incompetent and the Courts below were justified in holding so. Since the evidence produced by the petitioner at the trial to rebut the grounds in the ejectment petition was insufficient, so it cannot be said that the Courts below have decided the case wrongly. The contention of the learned counsel that the petitioner having become an owner in the suit property could not be proceeded against under the Rent Restriction ordinance has no merits. Admittedly the alleged sale transaction of a certain share in the suit property took place during the pendency of the ejectment proceedings. The Rent Controller who was exercising a limited jurisdiction under the Rent Restriction Ordinance could not adjudicate upon the ownership rights of the parties. The petitioner is, therefore, at liberty to seek his remedy in the Civil Court as observed by the learned Judge in his Chambers. The petition is, thus dismissed."

16. Keeping in 'view the above mentioned discussion, I am of the view that findings of the Courts below are unexceptional, because the same are based on proper appreciation of evidence and material available on record. Resultantly, I dismiss the appeal in hand alongwith C.M. with no orders as to costs. The appellants shall hand over the vacant possession of the property in dispute within a period of two months. H.B.T./350/P Appeal dismissed.