1997 PLP 1185 (SCMR)

MIR HAZAR KHAN KHOSO, J.‑‑‑This petition for leave to appeal is directed against the judgment dated 2‑11‑1994 passed by a Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby appeal filed by petitioner Pervaiz Zafar Butt against the order dated 4‑4‑1993 of the Additional Rent Controller, Rawalpindi Cantt. directing the petitioner to approach the Civil Court for determination of Lie title of the property was dismissed.

2. It is averred by the petitioner that Bashir Ahmad previous owner of the disputed property (Shop No.316‑A, R.A. Bazaar, Rawalpindi) had rented out back room of the shop for use as a Madrasa at a monthly rent of Rs.600. Subsequently, however, the main building and the shop were gifted to him by Bashir Ahmad, vide registered deed No.7122, dated 15‑8‑1988. On transfer of the property he gave notice to respondent regarding alienation of the building and the payment of rent to him. It is grievance of the petitioner that the respondent did not responsed to his notice and defaulted in payment of the rent. In such situation he approached the learned Rent Controller for ejectment of the respondent. The respondent admitted the transfer of the property by way of gift, but, however, by same breath challenged his ownership. In these circumstances the learned Rent Controller framed issue whether there 'existed relationship of landlord and tenant between the parties. The petitioner contended that he produced documentary evidence to prove his ownership. However, the learned Rent Controller on 4‑4‑1993 dismissed his application with the observations as under:‑‑ "Without going into the merits of the case, it appears prima facie that the instant case is of a civil nature and the parties may approach to the Civil Court if they so wish regarding the subject‑matter of the dispute. Hence on this short ground the ejectment petition is disposed of accordingly."

3. The petitioner filed appeal before the High Court which also met the same fate with the observations as under:‑ "I have considered the arguments of the learned counsel for the parties. The stand taken by the respondent casts doubt on the title of applicant and to settle matter once for all it would be appropriate that the question of title be determined once for all by a Civil Court of competent jurisdiction. That would advance the interest of justice in the peculiar circumstances of this. case. The original owner was an issueless person and question whether he could have gifted away the entire building to a stranger requires proper consideration. In this view of the matter I consider that the order of Rent controller was passed with justification and accordingly the appeal is dismissed. The parties are left to bear their own costs. "

4. The petitioner, therefore, approached this Court and sought for leave to appeal against the above said order.

5. On 2‑5‑1995 this Court ordered for issuance of notice to the respondent.

6. The learned counsel for the petitioner contended that by way of gift through registered sale‑deed on 15‑8‑1988 Bashir Ahmad had alienated the property in dispute. alongwith other properties to the petitioner. But later on he challenged the same before the Civil Court, who was pleased to dismiss the same on 28‑11‑1991. The appeal filed by his legal heirs was also dismissed. The learned Rent Controller and the High Court as such had no jurisdiction to direct the petitioner to get settled his ownership by Civil Court. He contended that the Rent Controller itself was competent to settle the dispute. Reliance was placed on the case reported in 1983 CLC 2808. His contentions were controverted by the respondent's counsel.

7. We have perused the record of the case. It is indeed astonishing that the copies of the documentary evidence produced before the trial Court have not been brought on the record. We had the mind to convert the petition into appeal and decide the matter in accordance with law. However, we felt ourselves incapacitated to do so, hence we are inclined to look into the matter as it is. There is no material on the record to indicate whether the portion of the shop in possession of the respondent was handed over by Bashir Ahmad to respondent as Waqf or on rent. It seems that besides the documents showing alienation of the building, in favour of the petitioner no material was produced before the Rent Controller to establish that there existed relationship of landlord and tenant between Bashir Ahmad and the respondent. Hence the petitioner who stepped into shoes of Bashir Ahmad could not claim himself to be the landlord of the respondent. The learned Rent Controller was justified in such situation to directing the petitioner to approach the Civil Court. Obliquely direction in that respect was that suit for possession could be filed but not ejectment application before the Rent Controller. We have, perused the order passed by the learned Judge in Chambers of the High Court. He has indeed overstepped in its order by directing the petitioner to approach the Civil Court for determination of his title. Such observations of the Judge in Chambers of the High Court were uncalled for. However, for possession of the portion of the building in possession of the respondent the petitioner can approach the Civil Court. The petition has no merit. Leave to appeal is refused and the petition is dismissed accordingly. A.A./P‑27I/S Leave refused.