P L D 1983 Supreme Court 196 (PLP)

SHAFIUR RAHMAN, J.-Leave to appeal was granted to an objector, whose successors-in-interest are the appellants, to resolve the cleavage of opinion in the High Court as found in the decisions of Ali Hussain v. Rafiquddin and others (P L D 1977 Lah. 418) and Mst. Sahibunisa and others v. Mahmooda Begum (P L D 1959 (W. P.) Lab. 511,). The facts of the case are that respondent-landlady sought the eviction of Nazir and Zardar from a portion of the property on the ground floor which was shown by metes and bounds in a plan accompanying the eviction petition. That ejectment application was allowed ex parte against Nazir and Zardar and their ejectment was ordered. Their effort to get the ex parte decree set aside failed. While the decree-holder was getting the decree executed, an objection petition was filed by the appellants predecessor in interest contending that he was in possession of the property in respect of which an ejectment order had been obtained against Nazir and Zardar and his possession was that of a tenant and he could not be ejected therefrom The Executing Court recorded the evidence of both the parties but suddenly terminated the proceedings by holding that in view of the decision in Ali Hussain's case the objector himself must first surrender the possession of the property before such objection could be adjudicated. A revision petition filed by the appellants which was treated as an appeal, was dismissed following the decision of the High Court in All Hussain's Case. Their revision petition also failed in the High Court for the same reason. Hence this appeal. So far. as the cleavage of opinion between 'the authorities referred to is concerned, it has received attention and decision of this Court in Mst. Khurshid Begum v. Mst. Ghulam Kubra (1982 S_C M- R 90 ') and no reconsideration of it is called for. Evidence on the objection petition of the appellants had been recorded and concluded. We have examined it with the assistance of the learned counsel for the parties to determine the capacity in which the objectors were objecting to the decreee. The case of the appellants was that they were in occupation of the premises as tenants while their eviction was sought on the. basis of a decree obtained against Nazir and Zardar. The case of the decree-holder was that only one hall, a room used as clinic was on tenancy with the predecessor-ininterest of the appellants and the rest of the property was with the other tenants. The possession of the appellants over the clinic was protected but not over the other property the possession of which had been obtained by them after the ejectment order had been obtained against Nazir and Zardar. ??????????? The evidence on the record shows that not only the eviction was sought of Nazir and Zardar but also of the predecessor in interest of the appellants. Two separate eviction applications were filed for the purpose. In both the plan of the property had been filed. The predecessor in interest of the appellant was shown in possession of only the hall while Nazir and Zardar were shown and proceeded against in respect of the residential portion on the ground floor. Apart from this, it appears from the agreement arrived at between the parties, proved by Abdul Hakim and exhibited as R/1 that it was only a shop which had been obtained on rent by Saeedul Hasan the predecessor in interest of the appellants and its rent was fixed at Rs.

175. To the same effect :a the statement of Dr. Sharif, another Dentist and a tenant on the ground floor in the same building. The appellants have relied upon their electricity bill and a letter written to them by Ramzan, an agent of ,the landiady. These documents do not have the effect of proving the point in issue because the appellants' predecessor in interest had himself corresponded with the Rawalpindi Electricity Supply Company and there was no intervention of the landlady or her agents. The receipts for rents were admittedly issued to the appellants and they were in possession of it particularly of the period before they started depositing rent with the Rent Controller. At no stage did they produce it to identify the property of which they claimed to be the tenants, Such an omission as held in .Maharaja Sris Chandra Nandy and another v. Rekhalanada Thakur and others (A I R 1941 P C 16) "alone is sufficient to cast doubt upon the claim." We find that their claim to rest of the property, other than the shop or clinic, was under the tenants,/judgment debtors against whom order of ejectment had already been passed by the Controller. They must, therefore, 'deliver the possession to the landlady, the, decree-holier. This appeal is dismissed with costs. ?S. Q ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.