2016 PLP 1 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners-defendants have challenged the judgment and decree dated 04.04.2009 passed by the learned Additional District Judge, Rawalpindi, whereby the appeal filed by the respondent-plaintiff was accepted, by way of which, the judgment and decree dated 03.05.2006 passed by the learned Civil Judge 1st Class, Rawalpindi dismissing the suit, were reversed.

2. The brief facts of the case are that the plaintiff-respondent No.1 on 19.01.1995 filed a suit for declaration that the plaintiff along with others is owner in possession of land bearing Khewat No.917, Khatoni No.1640, Khasra No.1341 (8-kanals 10-marlas), Khasra No. 1342 (20-kanals 16-marlas), Khasra No. 1343 (6-kanals) total measuring 35-kanals 6-marlas situated in revenue estate of Narra Tehsil Kahuta District Rawalpindi as per Jamabandi for the year 1991-92 and defendants Nos.4 to 7 have no right, title or interest over the same and as a consequential relief a decree for permanent injunction restraining the defendants from encroaching upon, interfering with the possession and ownership of the plaintiff over the same or from making "Natore" of the same in any manner whatsoever. The case of plaintiff is that the plaintiff along with others is owner in Deh and is entitled for "Shamlaat and also successor in interest of "AULAD DEWAN NOUROZE" and suit property is specifically and exclusively meant for legal heirs of "AULAD DEWAN NOUROZE" and plaintiff is from the Aulad of Dewan Nouroze, therefore, a declaration was sought.

3. The written statement was filed and suit was contested. It is the case of defendants Nos.4 to 7 that the plaintiff has not given any particulars of "others" who according to him are owners in the Deh. It is denied in the written statement that the plaintiff is from the Aulad of Dewan Nouroze and further that the suit property is for the Aulad of Dewan Nouroze. It is stated that part of the suit land is an evacuee property and vests in defendant No.1 and Khasra No.1342 is a Nullah. Issues were framed and the parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 03.05.2006 suit was dismissed by the learned trial court. An appeal was preferred before the learned first appellate court, which was accepted vide judgment and decree dated 04.04.2009 and the suit was decreed. Hence, this civil revision.

4. Learned counsel for the petitioners/ defendants argues that the plaintiff-respondent miserably failed to establish that the whole of the suit property was for "AULAD DEWAN NOUROZE" as Shamlat Deh and further he failed to establish that he is from A ul ad of Dewan Nouroze, therefore, the findings recorded by the learned trial court are in accordance with law and the learned first appellate court fell in error while setting aside the judgment and decree passed by the learned trial court and decreeing the suit of the respondent/plaintiff. Lastly argues that when the suit has been filed in a representative capacity, the provision of Order I, Rule 8 of the C.P.C. has not been complied with and the case law relied by the learned first appellate court "PLJ 1983 Supreme Court 262 (Haji Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others)" is not applicable to the facts of this case and the suit was defective one. Prays for acceptance of this civil revision and setting aside the judgment and decree passed by the learned first appellate court.

5. On the other hand, learned counsel for the respondent/plaintiff argues that he has produced various copies of Record of Rights as well as pedigree table to establish that property is for "AULAD DEWAN NOUROZE" and further that pedigree tables produced as Ex.P-6 to Ex.P-8 establish that the plaintiff is from the Aulad of Dewan Nouroze. States that the petitioners-defendants have not proved the case pleaded by them that they have purchased the suit property from one of the legal heirs of Dewan Nouroze and further they have any right in the suit property.

6. I have heard the learned counsel for the parties at full length and also gone through the record as well as the case law relied by the learned first appellate court with regard to Order I, Rule 8 of the C.P.C.

7. When questioned to the learned counsel for the respondent/plaintiff that how the learned first appellate court was justified in granting a declaration of ownership in favour of plaintiff with regard to whole of the suit property when the plaintiff does not claim to be the right holder in the whole of the property, when there are non Muslim owners/right holders evacuees mentioned in his own documents i.e. Register Haqdaran Zamin for the year 1995-96 produced as Ex.P-2, Register Haqdaran Zamin for the year 1967-68 produced as Ex.P-3, Register Haqdaran Zamin for the year 1955-56 produced as Ex.P-4 and Register Haqdaran Zamin for the year 1905-06 produced as Ex. P-5; learned counsel states that he cannot defend the fact that whole of the property was not Shamlat Deh for "AULAD DEWAN NOUROZE". There were non Muslim owners mentioned in the column of ownership in the above mentioned documents. This admission as well as documentary evidence produced by the respondent-plaintiff himself makes a dent in the findings recorded by the learned first appellate court on issue No.1.

8. So far as the question that the plaintiff-respondent is from the Aulad of Dewan Nouroze is concerned, the plaintiff opted to produce Karamat Hussain Advocate, who was local commission, as PW-1 and he himself appeared as PW-2. Even in his statement as PW-2 he has not stated that he is from the Aulad of Dewan Nouroze. Pedigree tables produced as Ex.P-6 to Ex.P-8 have not been proved by producing Patwari and there is no statement of any witness to connect the plaintiff with the Aulad of Dewan Nouroze. Even I have noted supra that in the statement in chief the plaintiff does not state that he is from the Aulad of Dewan Nouroze. In these circumstances, the findings recorded by the learned first appellate court on issue No.1 are absolutely against the law, therefore, reversed.

9. The other aspect of the case is that a declaratory decree can declare a pre-existing right and the declaratory decree cannot create or confer a new right. The prayer made in the plaint shows that the plaintiff wants that a right be created in his favour. When all the documentary evidence produced by him is against his stance taken in the plaint and further the prayer that plaintiff and others be declared owner in possession of suit land, whereas the others have not been described that who are the "Others", therefore, the suit was defective under Order I, Rule 8 of the C.P.C. The case law relied by the learned first appellate court is not applicable to the facts of this case. When the plaintiff wants that a declaration be granted that plaintiff and Aulad of Dewan Nouroze are the owners of suit property, whereas it is not identified that who were the "AULAD DEWAN NOUROZE", therefore, the decree granted by the learned first appellate court is in the air without determination that who are the legal heirs of Dewan Nouroze, on this score also the decree is defective one.

10. It is settled principle of law that a plaintiff must stand on his own legs. Even if the defence taken by the defendant has not been fully proved by him, that does not give any right to the plaintiff that a decree for declaration of title of suit property be granted in his favour. It is not denied that the defendants are purchasers of land adjacent to the suit land. The claim of defendants that they have purchased from one of the legal heirs of Dewan Nouroze, if not proved, that does not give a right to the plaintiff that a decree be passed in his favour. When it is the admitted position that whole of the suit land was not for Aulad of Dewan Nouroze and some evacuees non Muslim owners were also recorded owner in the suit property which devolve upon the Central Government and thereafter by the operation of law to the Provincial Government. The claim of plaintiff with regard to whole of suit property was also not tenable under the law. In this view of the matter, the judgment and decree passed by the learned first appellate court are absolutely against the law.

11. In the light of what has been discussed above, this civil revision is accepted and the impugned judgment and decree dated 04.04.2009 passed by the learned Additional District Judge, Rawalpindi are set aside. The result would be the suit filed by the respondent/plaintiff shall stand dismissed. ZC/M-52/L Revision allowed.

2016 Y L R Note 54 [Sindh] Before Abdul Rasool Memon, J SHAHID SHAUKAT ALI

Petitioner Versus MASOOM AHMED SIDDIQUI and 2 others

Respondents Constitution Petition No.S-1619 of 2014, decided on 6th July, 2015. (a) Sindh Rented Premises Ordinance (XVII of 1979)

S. 13

Eviction of tenant

Personal bona fide need of landlord

If landlord sought ejectment of tenant from rented premises on the ground that same was required for personal bona fide use of his daughter then such evidence of landlord was sufficient to prove such requirement of use of premises for his bona fide personal use without examination of daughter of landlord. [Para. 7 of the judgment] Muhammad Bashir v. Vensimal and 4 others PLD 1980 Kar. 409; Mst. Asma Usman v. Syed Adil Hussain and others 2006 YLR 2194 and Jehangir Rustam Kakalia through Legal Heirs v. Messrs Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241 rel. (b) Sindh Rented Premises Ordinance (XVII of 1979)

Ss. 13 & 15A

Constitution of Pakistan, Art. 199

Constitutional petition

Eviction of tenant

Penalty for use of premises other than personal use

Scope

Contention of tenant was that the object of filing of ejectment application was just to enhance rent by evicting the tenant from premises

Held, that according to S. 15-A Sindh Rented Premises Ordinance, 1979, if landlord had obtained possession of building on personal bona fide need and re-let premises to any person within one year of getting the same by dispossession of the tenant then he would be punished with fine and tenant who had been evicted from such premises would apply to Rent Controller of competent jurisdiction for an order to restore possession of premises to him

Constitutional petition, in circumstances, was dismissed and tenant was directed to vacate the premises after 90 days and handover the possession to landlord, accordingly. [Paras. 8 and 9 of the judgment] Ms. Romana Bano for Petitioner. Respondent No.1 in person. Date of hearing: 8th May, 2015. ORDER ABDUL RASOOL MEMON, J.

This petition is directed against the Judgment dated 10.11.2014 passed by the respondent No.3 in First Appeal No.26/2014, whereby the order dated 06.3.2014 passed by the respondent No.2 (Rent Controller) in Rent 'Case No.653/2011 for ejectment of the petitioner within thirty (30) days from the demised premises i.e. Flat No.B4/8, 3rd Floor, situated at Dawood Heights, Sector 5-K, North Karachi, was maintained on the ground of personal bona fide need of the daughter of respondent No.1.

2. The background of the case is that respondent No.1 filed the rent case against the petitioner for ejectment from the demised premises on the ground of default in payment of monthly rent from July, 2011 to October, 2011 and personal bona fide need by his daughter namely Mst. Asma. She is said to be living in rented premises.

3. The petitioner admitted the relationship of landlord/tenant so also quantum of rent in written objection but has denied the default in payment of rent. He pleaded that rent of July was paid to Rizwan rent collector of landlord while the rent for the month of August was not received by the respondent No.1, thus was remitted through money order which too was not accepted, therefore, he deposited the same through M.R.C. No.696/2011. The.personal bona fide need of the demised premises by the daughter of the respondent No.1 was also denied on the ground that she is not living in a rented premises and the respondent No.1 has other alternate properties for accommodating his daughter. He further, contended that the respondent No.1 wanted to let the demised premises on higher rent to someone else.

4. Both parties adduced their evidence. The Rent Controller accepted the plea of personeal bona fide need of the respondent No.1 and allowed the ejectment application vide order dated 06.3.2014, which was maintained in F.R.A. No.26/2014 vide impugned Judgment.

5. Learned counsel for the petitioner argued that there is only evidence of the respondent No.1 on record to prove the bona fide need of his daughter Mst. Asma, but she has not appeared as a witness to corroborate the version of the respondent No.1, therefore, the respondent No.1 has miserably failed to establisho his case through independent evidence; that the point of default was not pressed by the respondent No.1 before the Rent Controller as he had no evidence to support his contention and even then the learned Rent Controller allowed the Rent application, as such, the order of the trial court is based on misreading and non-reading of the material evidence which has erroneously been upheld by the appellate court therefore, he prayed for setting aside the orders passed by lower Courts.

6. Respondent No.1 pleaded his case in person and contended that the order of the Rent Controller is based on settled principles of law and available evidence on record. He further submitted that his version was in consonance with the contents of the rent application and was not shaken in cross-examination; that the examination of his daughter was not the requirement of law for establishing the personal bona fide need of his daughter. In support of his contention he placed reliance on the case of MUHAMMAD BASHIR v. VENSIMAL and 4 others (PLD 1980 Karachi 409), MST. ASMA USMAN v. SYED ADIL HUSSAIN and others (2006 YLR 2194) and JEHANGIR RUSTAM KAKALIA THROUGH LEGAL HEIRS v. M/S. HASHWANI SALES AND SERVICES (PVT) LTD. (2002 SCMR 241).

7. I have given due consideration to the oral submissions of parties and gone through the relevant record. Since the ground of default was not pressed before the Rent Controller, thus, need no consideration; So far the ground of personal bona fide need of respondent No.1/landlord is concerned, the respondent No.1 (landlord) stated in his application as well as in his affidavit-in-evidence that he needs the demised premises for use of his daughter Mst. Asma, she is living in a rented premises and has been asked by her landlord to vacate the same. The statement of respondent No.1 on oath is quite consistent with the averment of the rent application and the same has neither been shaken in cross-examination by the petitioner nor any evidence has been brought by the petitioner to controvert the contention of the respondent No.1, thus, his own statement on oath is sufficient to establish his contention regarding his personal bona fide need of the premises in question. The only objection of the petitioner is that the respondent No.1 has not produced his daughter Asma in evidence to prove his contention. In this respect it is now a days a settled principle that if the landlord seeks ejectment of the tenant from rented premises on the ground that the same is required for personal bona fide use of his daughter the evidence of the landlord/father of the said child is sufficient to prove such requirement of the premises as bona fide for their personal use without examining his daughter. In this respect I am fortified by the cases of Mst. ASMA USMAN and MUHAMMAD BASHIR (supra).

8. The next contention of the Counsel for the petitioner is that the object of filing of the ejectment application is nothing but to enhance the rent by evicting the petitioner from the demises premises. The Sindh Rented Premises Ordinance, 1979 has protected the right of tenant by inserting section 15-A, which directs that if the Landlord has obtained the possession of building on personal bona fide need, re-lets the premises to any person within one year of getting the same by dispossession of the tenant from the same, then he shall be punished with fine and further that tenant who has been evicted from such premises may apply to the Rent Controller of the competent jurisdiction for an order to restore possession of the premises to him, thus, the apprehension of the petitioner/ tenant to that effect has been protected by above provisions of law.

9. In view of the above circumstances, I am of the view that the impugned judgment is in accordance with law and does not require any interference of this court under constitutional jurisdiction. However, looking to the tenure of tenancy, while dismissing this petition, the petitioner is directed to vacate the premises after 90 days from this order and hand over the peaceful possession thereof to the respondent No.1 (landlord) and shall continue to pay the monthly rent for the said period of ninety (90) days. RR/S-50/Sindh Petition dismissed.