1999 PLP 2478 (SCMR)

MUNIR A. SHEIKH, J.

This petition for leave to appeal is directed against the judgment dated 17-9-1998 of the Lahore High Court through which the appeal filed by the petitioner against the orders of Rent Controller and First Appellate Court has been dismissed.

2. The respondent's predecessor filed ejectment petition against the petitioner seeking his eviction from the shop in dispute on the ground of default and personal need. In the written statement, the existence of relationship of landlord and tenant was not denied. However, it was averred that the property was waqf property, therefore, ejectment petition could not be filed by Syed Turab Ali, predecessor of the respondents. 3. - The Rent Controlled framed the following issues:-- (1) Whether the respondent is a defaulter ? OPP (2) Whether the premises in dispute is required for personal use and use of the son reasonably and in good faith ? OPP (3) Relief.

4. It may be mentioned here that no issue as to maintainability of the ejectment petition on the ground that the property was allegedly a waqf property was framed. It appears that when issues were framed, though the petitioner did not claim any issue on this point rather led evidence on the issues already framed.

5. The Rent Controller after considering the evidence produced by the parties came to the conclusion that the petitioner had defaulted in the payment of rent of one month of January, 1984, as such, was a defaulter and that the property was required by the landlord for personal use in good faith. Through order, dated 15-1-1989, the ejectment petition was accepted and the petitioner was evicted and directed to hand over possession of the shop to the landlord. The appeal filed by the petitioner was dismissed by the learned Additional District Judge through order, dated 19-9-1991, which was assailed in appeal before the High Court which too has been dismissed through the impugned judgment dated 17-9-1998 against which leave to appeal has been sought.

6. Learned counsel for the petitioner reiterated the averments made in the written statement that the property was a waqf property, therefore, Syed Turab Ali, deceased predecessor of the respondents could not seek ejectment of the petitioner for his personal need. In support of this contention, he referred to judgment reported as Dr. Miss I. Ali Muhammad v. Muhammad Shafiq '(PLD 1971 SC 494). He also called our attention to documentary evidence such as Exh.R.15 to Exh.R. 19 which are rent notes by which a property described as Waqf property had been rented out, therefore, on the basis of this evidence, the learned counsel for the petitioner submitted that the ejectment petition was not maintainable.

7. These rent notes had not been executed in favour of Syed Turab Ali, deceased, the petitioner in the ejectment petition but in favour of one Wajid Ali. As to whether there was nexus between the property which was subject-matter of the said documents and the shop in dispute, no evidence independently appears to have been produced. Respondent/landlord when appeared as witness categorically stated that the shop in dispute was not part of the property which was alleged to be Waqf property by the petitioner and the same had been purchased by him through sale-deed which he could produce whenever called. The learned Additional District Judge has dealt with this aspect of the case elaborately in his judgment by observing that on the death of Syed Turab Ali, his legal representatives were brought on record and if Syed Turab Ali deceased according to the petitioner, who had sought his ejectment from the shop in dispute allegedly a Waqf property as Mutwali, he should have objected to the bringing his legal representatives on record because in such an event, it was the successive Mutwali who would continue the prosecution of the petitioner apart from the fact that the shop in dispute was not proved to be part of that property which was Waqf property according to the petitioner. In addition to this, it was also noticed that at one stage, the Auqaf Department took over the management and control of the disputed property through notification which was subsequently withdrawn.

8. Learned counsel for the petitioner has placed on record copy of statement of the present petitioner when he appeared as R.W.1 which shows that he admitted that he had been paying rent to Syed Turab Ali, deceased/landlord to whom an amount of Rs.15,000 as Pagri had also been paid. No evidence has been led to prove that Syed Turab Ali deceased was ever Mutwali of any Waqf property and that the shop in dispute was part of the property which was Waqf property according to the petitioner.

9. Learned counsel for the petitioner attempted to seek help from the contents of the above documents that the same had been executed in favour of Wajid Ali as Mutwali of a Waqf property. The name of Mutwati mentioned in these documents is not of Syed Turab Ali, therefore, we are not inclined to hold that these documents are binding on Syed Turab Ali, deceased, or the same by themselves furnish evidence to establish that the shop in dispute was also part of a Waqf property which fact was expressly denied when Syed Turab Ali, deceased appeared as a witness.

10. The findings of facts recorded by the Courts below do not suffer from any legal infirmity, such as misreading, misconstruction or non-reading of any material piece of evidence, therefore, this petition has no merits which is accordingly dismissed and leave to appeal refused. H.B.T./A-161/S Petition dismissed.