1990 PLP 1399 (CLC)

The dispute relates to Chobara bearing Property No. 29 Ward No. 3 Faisalabad. It was transferred to Abdul Haq who has since died and is represented by his heirs as petitioners. He paid the transfer price Rs. 13,800 as price of the shop and Chobara. There was an adjacent property comprising of the same accommodation which was transferred to one Amin‑ud‑Din which was also assessed at Rs. 13,

800. After the transfer of the property in favour of Abdul Haq, a notice was issued by him to the respondent No.1 since deceased and represented by his heirs intimating that he himself had become under the law owner of the property and the respondent No.1 his tenant. Later on, an ejectment application was filed by Abdul Haq against the respondent No.1. In the written statement filed by the respondent No.1 he admitted the transfer of the property in dispute to Abdul Haq and stated that he (the respondent) was prepared to pay the rent. Ejectment of the respondent was ordered by the learned Rent Controller and the order was upheld by the learned Addl. District Judge. Thereafter, the respondent No.1 executed rent deed in favour of Abdul Haq and he started paying the rent regularly to the petitioner which he paid till October, 1983. However, a new D.S.C. on 11‑12‑1983 ordered that the Chobara was never transferred to Abdul Haq and was available for transfer and he transferred it to the respondent. The petitioner's Revisions Petition was dismissed by the Administrator, Residual Property, Faisalabad vide order dated 10‑1‑1984. Hence this Constitutional petition.

2. The case of the petitioners is that the Chobara forms part of the shop transferred to the petitioners. They paid the price of shop and Chobara. The transfer price of shop and Chobara adjacent to this shop and Chobara was same and that was paid by its transferee. The petitioners were entitled to retain the shop and Chobara having paid the price of the same. Further that the respondent No.1 having accepted the tenancy and axecuted the rent deed was debarred to repudiate the title of the petitioners' predecessor‑in‑interest.

3. Learned counsel appearing for the L.Rs. of respondent No.1 has vehemently contended that the initial order of transfer was only for the transfer the shop and upper portion was subsequently added in the order. Further, the addition was unauthorised. Consequently, the Chobara having not been transferred to the predecessor‑in‑interest of the petitioners was available and was, therefore, rightly transferred in favour of respondent No.1. He has also submitted that the admission of tenancy and payment of the rent by the respondent No.1 to the prddecessor‑in‑interest of the petitioners was under misconception and it transpired later that the Settlement Authorities had not transferred the Chobara to the petitioners. Thus, it became available property and was rightly transferred to the answering respondent No.1.

4. I have heard the learned counsel for the parties and one of the heirs of the original transferee Abdul Haq namely Zia‑ul‑Haq as well as Shafiq‑ur Rehman heir of the respondent No.1. Zia‑ul‑Haq states that they have a Kothi measuring six marlas in Jinnah Colony. Shafiq‑ur‑Rehman says that they have a Kothi measuring two kanals in Peoples Colony. The latter further states that in the Chobara in dispute heirs of respondent No.1 have their office of the newspaper "Daily Saadat" since 1937.

5. From the statement of facts made above, it is quite clear that adjacent property comprising of same accommodation i.e. the shop and Chobara has been transferred on the price which had been demanded and paid by the petitioners' predecessor‑in‑interest. Obviously what price the adjacent owner of the shop and the Chobara has paid the same having been paid by the predecessor‑in‑interest of the petitioners the latter would be entitled to the shop and the Chobara as well in question. Moreover, after the transfer and payment of the price by the petitioners' predecessor‑in‑interest, Abdul Haq, the predecessor‑in‑interest of the respondent i.e. the original respondent No.1 filed a written statement in reply to the ejectment application filed against him in which he admitted the tenancy as stated above. He was asked to pay the rent and the rent was paid by him until October, 1983. After nearly a quarter of a century it was not permissible for the D.S.C. to re‑open the matter in a manner that he repudiated what the respondent No.1 himself had been doing. Consequently, his finding that the Chobara was available was perverse, against the record and without lawful authority altogether. Therefore, the impugned order of the D.S.C. Deputy Administrator, Residual Property, Faisalabad dated 11‑12‑1983 and that of Administrator, Residual Property dated 10‑1‑1984 respectively are declared to be without lawful authority and of no legal effect. In the circumstances, the parties shall bear their own costs. H.B.T./G‑326/L Petition accepted.