2012 PLP 1368 (MLD)

IBAD-UR-REHMAN LODHI, J.

Under the provisions of Punjab Rented Premises Ordinance, 2007, an ejectment petition was filed by respondent No.1 against the writ petitioner and respondent No.2 on the allegation of default in payment of rent. The learned Special Judge (Rent) after granting leave to the tenant proceeded with the trial of the petition and finally on 26-5-2010 allowed the ejectment petition. Appeal filed against such eviction order was failed when the learned Addl. District Judge, Mandi Baha-ud-Din dismissed the same on 30-12-2010. Both the concurrent findings are challenged through Constitutional petition before this Court by the writ petitioner.

2. Exh.A-3, a Registered Will Deed entered in the office of Registrar on 13-7-1966 is the basis of the present litigation. The ejectment petitioner claimed his title over the property in question on the basis of said Will and the respondents in ejectment petition controverted the same on the plea of a suit stated to have been filed challenging the veracity and legality of the said Will Deed. According to said Will Deed, the executant Ahmad Ali Khan made a Will with reference to his number of properties including the Property No.35/RA in Phalia which according to the contents of Will would be in the entitlement of Masood Ali Khan and Akram Ali Khan. As a subsequent development, the said two persons further agreed to partition the said property in two equal portions and the portion in which the shop in dispute situate fell in the share of Akram Ali Khan.

3. The learned counsel for petitioner has argued in detail the legal value of the Will. According to him not more than 1/3rd of the total property can be made subject matter of the Will and if the same is being made in favour of some of the legal heirs, the consent of other legal heirs would be necessary. According to learned counsel for the petitioner as the property was that of Ahmad Ali Khan and on his death, the same devolved upon all of his legal heirs including the predecessor in interest of the present petitioner and therefore, by ignoring the Will, the property should have been treated as a joint one and thus against a co-owner of the property, no ejectment petition can be preferred. He has stated on bar that Asghar Ali, who has been accommodated through the said Will with reference to other properties of Ahmad Ali Khan, has since filed a suit for declaration with regard to the said Will and also for partition.

4. In comparison whereof, the learned counsel, representing the respondents, have supported the judgments of the courts below with a further plea that every truth has been attached with a registered document having more than 30-years old and unless the same is removed, it would have every sort of binding effect upon the affairs of a person using the property or claiming right over the said property and in their view mere pendency of the suit touching legality of Will would not be considered a bar to regulate the affairs of the disputed shop under the Rent Laws. According to learned counsel for the respondents by overwhelming evidence, they have not only established on record the initial induction of the respondents in shop in question as a tenant but also the commission of default on the part of the respondents in payment of rent of the shop in question.

5. I would hesitate to comment upon the matter of Will as according to learned counsel for the petitioner, the same is still subject matter of a civil suit but for the reasons that learned counsel for the petitioner has insisted upon his such limb of arguments, some observations would be necessary even on the point of Will.

6. In Surah-e-Baqra, Ayah No.180, the command of Allah Almighty is as under:-- Some people rely upon a Hadith of Holy Prophet (Peace be Upon Him) which is to the following effect ( ) but keeping in view the ( ), the Will in favour of the heirs is not prohibited. Even otherwise the Hadith relied upon by some of the people is ( ) and by such Hadith a Quranic Order cannot be ignored or terminated.

7. According to the discussion on the issue of Will in ( ) by Dr. Tanzeel-ur-Rehman, it is the conclusion of the Author that in a number of Muslim Countries likes "Egypt, Tunisia, Morocco and Syria" etc. the Will in favour of a legal heir is accepted as valid. As noted earlier the basis of title by the ejectment petitioner was the Will Deed which was registered in the year 1966 and the same has not yet set at naught. By virtue of Section 100 of Qanun-e-Shahadat Order, 1984, every presumption of truth is attached to a document of 30 years old. The Hon'ble Supreme Court of Pakistan in cases of Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5), Jang Bahadar and others v. Toti Khan and another (2007 SCMR 497) and Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996) have held that presumption of due execution is available in favour of registered documents and such presumption would be stronger in the case of registered deed being more than thirty years old. It is also the matter of fact that Ahmad Ali Khan, who got registered the Will in 1966 breathed his last in 1978 and during whole of these 12 years neither the executant of Will recalled the same nor any person including the writ petitioner challenged the validity of the same during life time of Ahmad Ali Khan. The manner of domestic partition of property 35/RA amongst Masood Ali Khan and Akram Ali Khan has also been objected to by the petitioner but after getting guidance from the judgment passed by the apex Court in the case of Syed Abdul Ghafoor Shah v. Syed Luqman and others (2009 SCMR 45), it is held that such domestic partition has been given sanction and even after getting a portion of a property as a result of domestic partition, a person would be competently filed the ejectment petition against a person in possession thereof. Another aspect which is of some what importance is that Asghar Ali Khan was still alive when the parties produced their evidence and the writ petitioner who claims himself to be son of Asghar Ali Khan and in his such capacity claims his possession over the shop in question as a co-sharer in the property has failed to produce his father Asghar Ali Khan in the witness box. Such conduct of the petitioner would tantamount to withholding of best evidence for which presumption can be drawn to the effect that if Asghar Ali Khan would appear in the witness box he would depose against the writ petitioner. In the present case, both the forums below have concurrently decided the relationship of landlord and tenant to be in existence in between the parties and this Court in its Constitutional jurisdiction seldom interfere in such like findings. The apex Court in case of Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 Supreme Court 45) has held that mere pendency of civil suit in court cannot defeat, prima facie, established title for purpose of cases under Rent Laws.

8. For what has been discussed above, the finding of the fora below are just and proper and does not call for any interference.

9. Resultantly, the petition fails and dismissed maintaining the eviction order passed by the courts below. K.M.Z./S-80/L Petition dismissed.