1987 PLP 1679 (CLC)

Ram Rakha Mal v. Munna Lal Maidban A I R 1931 Lah. 243; Risaldar Azimuddin v. Dilshad Hussain P L D 1973 Kar. 284; Mansur Raza and 4 others v. Mst. Syrria Begum P L D 1966 (W.P.) Lah. 1059 and Province of Punjab through Secretary Education and another v. Mufti Abdul Ghani P L D 1985 SC 1 ref. Mirza Manzoor Ahmad for Petitioner. Ch. Sadiq Muhammad Ahsan Khan for Respondent. Date of hearing: 15th February, 1987. This revision petition arises from the order, dated 8‑1‑1977 of the learned Additional District Judge, Dera Ghazi Khan, whereby he dismissed the petitioner‑defendant's appeal.

2. The respondent‑plaintiff brought a suit for ejectment of the petitioner from the impugned shop after having served him with a notice under section 106 of the Transfer of Property Act. His claim was that he had obtained the site under this shop from the Municipal Committee, Dera Ghazi Khan on lease and had constructed the impugned shop thereon at his own expense, had let out the same to the petitioner vide Rent Deed, dated 18‑8‑1961 on a rental of Rs.40 per month; that after his retirement from service he needed it for his own use; that he had damaged it; and lastly that he had failed to pay rent for nine months preceding the institution of the suit.

3. The suit was resisted denying the existence of relationship between landlord and the tenant. It was, however, admitted by the petitioner that he had entered upon this shop by virtue of written agreement mentioned above, but pleaded that since the five years lease period for which the respondent‑plaintiff had obtained the site from the Municipal Committee, had expired in July, 1963, thereafter he ceased to be his landlord in law and that instead the Municipal Committee had a right to recover rent from him. It was further conceded that despite the expiry of the lease in favour of the respondent in 1963 he continued to receive rent from the petitioner. Denying other allegations as to personal need of the respondent or deterioration of the property, he claimed a sum of Rs.3,000 borne by him in executing repairs of the shop.

4. Appropriate issues were framed by the trial Court on the above pleadings. In the course of trial, however, parties agreed to refer the matter to a referee who submitted his report, dated 11‑6‑1976 finding all those issues in favour of the respondent‑plaintiff and recommending the petitioner's ejectment. Appeal brought against the judgment and decree of the trial Court was also dismissed.

5. Mirza Manzoor Ahmad, Advocate, for the revision petitioner submitted that the so‑called report of the referee was in law neither here nor there, inasmuch as he recorded evidence and based his conclusion thereon. He claimed that the referee was supposed to have made his own statement coming from his personal knowledge and that the same could have the binding effect on the parties under section 20 of the Evidence Act. Emphasizing that the report instead was based upon appraisal of evidence, he observed that it partook the shape of an award against which the petitioner had a right to raise objections and that the Courts below were wholly incorrect in forming it a basis for their decision against the petitioner. The argument cannot possibly be overlooked because the referee proceeded to give his decision on appraisal of evidence. This is not meant by the terms of section 20 of the Evidence Act and, therefore, it could not have been accepted to form the genesis of the decision made by the Courts below. Conversely it was an Award to which the petitioner had a sort of vested right to object, and denying him the same was another illegality. I agree with the counsel that this report was just a ruse of paper and should not have been given any place for deciding the case. But this was not all. Ordinarily the petitioner should have been given an opportunity to lead evidence on issues which had earlier teen framed on the pleadings, but this course could be obviated if we look at the pleadings with a little care. The fact is admitted that the petitioner entered as a tenant under the respondent. His contention was that on the basis of paramount title of the Municipal Committee, Dera Ghazi Khan, his tenancy qua the respondent had come to an end and that he was bound to pay rent to the paramount title‑holder. Although in the written statement, there is mention of the fact that the petitioner's tenancy with the respondent had come to an end, yet there was no averment if the so‑called paramount title‑holder had held out a threat of his eviction. This was a question of fact which was not agitated categorically in the entire written statement. The mere fact that the site belonged to the Committee would not ipso facto justify the plea of accepting the tenancy under them as paramount title‑holders. They have not been even impleaded presumably because the petitioner was lukewarm in his defence. He knew it that the respondent had obtained the site from the Committee and continued to pay rent to him despite the expiry in 1963 of the lease period of five years till a few months before the institution of the suit in 1975. In other words he went on paying rent for 12 long years after the expiry of five years allowed the respondent by the Committee and still he denies to be his tenant. This was quite an inconsistent feature borne out by his own written statement.

6. A number of authorities were cited by Mirza Manzoor Ahmad counsel for the petitioner. He placed reliance on Ram Rakha .Mil v. Munna Lal Maidban A I R 1931 Lah. 243, Risaldar Alimuddin v. Dilshad Hussain P L D 1973 Kar. 284, Mansur Raza and 4 others v. Ntst. Syrria Begum P L D 1966 (W.P.) Lah. 1059 and Province of Punjab through Secretary Education and another v. Mufti Abdul Ghani P L D 1985 SC 1 in support of the contention that on emergence of a paramount title‑holder the old tenancy stands forfeited. This may be true at its own place, but there should be assertion by the paramount title‑holder for attornment of rent or threat to the tenant to face eviction. No such allegation was levelled in the written statement and obviously in its absence the plea would not be much enuring. Admittedly the petitioner did not pay any rent to the Committee so far. It would negate the necessary ingredient of the principle and raise a presumption that there was neither threat of eviction held out to the petitioner nor was he forced to pay rent to the Committee. If the indications are that he continued to pay rent to the respondent till date, it will further weaken his stand that he was submitting to a better claimant. Once a tenant always a tenant, is the principle laid down in section 116 of the Evidence Act. The only exception, referred to above, was not in terms even pleaded in the written statement. There were no proceedings taken by the Committee against the respondent and they have been willingly accepting rent from him till now. It would suggest that the Committee had no claim whatsoever either against the petitioner or against the respondent. They were just silent spectators what to$ say of holding out by them any threat of eviction against the petitioner.

7. As a result I see no force in the revision petition and the same is dismissed with costs throughout. M . B . A . / G‑55/ L Revision dismissed.