1990SCMR1716 (PLP)

‑‑‑‑S. 17‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Relationship of landlord and tenant‑‑‑Denial of‑‑‑Appraisal of evidence by High Court‑‑‑high Court had correctly concluded in its judgment that findings of Rent Controller and Appellate forum were result of misreading of evidence‑‑‑High Court's finding was based on correct appreciation of facts‑‑‑Rent Controller and Appellate forum had based their findings on no evidence ‑‑‑Sale‑deed Filed by appellant did not indicate boundaries of plot‑‑‑Boundaries had also not been mentioned in ejectment application‑‑‑Plan of land had also not been filed‑‑‑Statement of appellant also did not specify land in possession of respondent/tenant ‑‑‑No evidence was available on record that respondent had either paid rent to appellant or his predecessor‑in‑interest‑‑‑High Court could set aside concurrent findings of fact which was based on no evidence‑‑‑Appeal was dismissed in circumstances. Bashir Ahmad Ansari, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑ on‑Record for Appellant. M. Munir Peracha, Advocate Supreme Court and Ch. Ghulam Dastagir, Advocate‑on‑Record for Respondents. Date of hearing: 5th March, 1990. ABDUL QADEER CHAUDHRY, J.‑‑‑The appellant brought an application for the eviction of the respondent No.] from a plot of land measuring 3 Marlas and 2‑3/4 Sarsahis part of Khasras Nos.2001/1377, 1370 and 2602/1377 situate in Chuhar Harpal Tehsil and District Rawalpindi, under the Cantonments Rent Restriction Act, 1963 on grounds of personal requirement and default in the payment of rent.

2. The respondent No.l contested the eviction application. A preliminary objection was raised that there did not exist the relationship of landlord and tenant between the parties and that one Kabul son of Fateh Khan was the landlord of the respondent. A preliminary issue was framed on the pleadings of the parties whether the relationship of landlord and tenant existed between the parties. The parties led evidence with regard to this preliminary issue. The Rent Controller accepted the rent application and passed an order of eviction. An appeal was filed before the District Judge which was dismissed by the Additional District Judge on 26‑11‑1984. The respondent then filed a Constitution petition in the High Court, Rawalpindi Bench, which was allowed and the judgment of the Rent Controller and that of the Additional District Judge were set aside declaring them to be without lawful authority and of no legal effect.

3. Leave to appeal was granted by this Court to consider the following contention of the appellant:‑‑

"That onus continues to shift in civil matters i.e. the relationship of landlord and tenant having been denied by respondent No.1 saying that he was tenant under one Kabul son of Fateh Khan, the onus, therefore, shifted to him and it was for him to prove that Kabul Khan was his landlord. Neither Kabul Khan entered the witness‑box, although he was present during the proceedings, nor any step was taken by the respondent to produce Kabul Khan; that respondent No.1 did not himself claim the title of the property, but asserted that it belonged to a third person, therefore, he could not defeat the petitioner's right without proving the title of the property in the other person."

4. We have heard the learned counsel for the appellant. The learned High Court in the concluding part of the judgment has observed that, `the impugned judgments are definitely the result of misreading of evidence. There is nothing on the record to substantiate these findings'. After going through the record, we are of the view that the finding of the High Court is based on correct appreciation of the facts. The Rent Controller and the Additional District Judge have based their finding on no evidence. The High Court has further observed that the appellant averred that he purchased the disputed land from Abdul Rehman and Sher Zaman and nowhere it is stated that the aforesaid land was in possession of the respondent. The sale‑deed filed by the appellant does not indicate the boundaries of the plot. The boundaries have also not been mentioned in the ejectment application. The plan of the land has also not been filed. The statement of the appellant recorded by the Rent Controller also does not specify the land in possession of the respondent. It is an admitted fact that the Khasra numbers pertaining to the land in dispute were purchased by two persons, therefore, unless it is established through evidence that the land in question was in possession of the respondent, the decree could not be executed. The appellant had purchased the land in 1973 and he had issued notice on 28‑7‑1980. There is no evidence on record that the respondent had either paid the rent to the appellant or his predecessor‑in‑interest. In view of such facts, it cannot be said that the High Court had no jurisdiction to set aside the concurrent findings of fact recorded by the Courts below.

5. There is no force in this appeal. The same is dismissed with costs. A.A./A‑737/S????????????????????????????????????????????????????????????? Appeal dismissed.