2004 PLP 592 (SCMR)

TANVIR AHMED KHAN, J.

Leave to appeal is sought against the judgment dated 7-3-2002 whereby a learned Single Judge of the Lahore High Court, Lahore, in exercise of his Constitutional jurisdiction set aside the concurrent findings of the Courts below i.e. the learned Rent Controller, Lahore, and the learned Additional District Judge, Lahore whereby eviction order was passed ejecting the respondent from the house in dispute.

2. Facts briefly are that the petitioner and respondent were real brothers inter se, who were living in the House No. 18, Street No.4, Kot Shahab Din, G.T. Road, Shahdara, Lahore. The petitioner admittedly purchased the said house through registered sale-deed dated 24-4-1997 and a mutation was also effected respecting the same. Since the parties were brothers inter se, as such the petitioner allowed the respondent to stay in the house as a tenant at the rate of Rs.2000 per month. However, the respondent did not keep up the undertaking for paying the rent, whereupon the petitioner was constrained to file ejectment petition on 24-3-1999 against the respondent. The stance taken by the petitioner in his ejectment petition was controverted by the respondent who took up the plea that he had already secured possession of the house through an agreement dated 21-6-1984. Due to contrary pleadings of the parties, the learned Rent Controller framed issue to the effect whether the relationship of the landlord and the tenant existed between the parties. Boil the sides produced their respective evidence. The Rent Controller, after examining the entire evidence brought on record, accepted the ejectment petition through his judgment dated 13-10-2000 by ordering eviction of the respondent.

3. An appeal was filed under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, which too was dismissed by the learned Additional District Judge, Lahore through his judgment dated 5-9-2001. The respondent filed a Constitutional petition against both the judgments of the subordinate Courts, which were set aside by a learned Single Judge of the Lahore High Court through the impugned judgment dated 7-3-2002. Hence this petition for leave to appeal.

4. We have considered the contentions raised by the learned counsel for the petitioner and have gone through the documents appended with his petition. We have noticed that the learned Rent Controller as well as the learned Additional District Judge, scanned the evidence in detail and found that the respondent while appearing as R.W.1 admitted his tenancy in the disputed house under previous landlord from 1960 to 1980. However, he put up his claim by saying that he secured the disputed house from its owner through an agreement dated 21-6-1984 and took exception to the sale agreement dated 22-4-1997 executed in the name of the petitioner. It is reflected from the record that the respondent filed a suit for cancellation of above sale-deed which was dismissed by the learned Civil Judge 1st Class, Lahore, through his judgment dated 31-5-2001. Thereafter, he did not challenge the said determination, as such the same attained finality. Resultantly, the registered sale-deed executed in favour of the petitioner on 22-4-1997 still stands intact. It is also reflected from the testimony of the respondent that he admitted the receipt of legal notice sent by the petitioner while there was dilly dallying in the payment of rent. The learned Single Judge has not at all taken into account the evidence brought on record by the petitioner. He has simply stated that there is a difference between the ownership and the landlord ship as both are distinct expressions having different meanings. According to him, the petitioner by production of sale-deed had established his ownership but could not substantiate the issue of landlord and tenant.

5. We are sorry that the learned Single Judge has totally failed to take into account the testimony even of the respondent who admitted his tenancy under the previous owner from whom the petitioner purchased property in dispute and also admitted the service of legal notice after the purchase effected by the petitioner upon him. This being the position, we are of the considered view that the learned Single Judge of the Lahore High Court, without any reason, set aside the concurrent findings recorded by the two Courts below. When all this position of evidence was put to the learned counsel appearing for the respondent, he could not say a single word in support of his client.

6. Resultantly, we convert this petition into appeal, accept the same and restore the earlier orders of the learned Rent Controller and the Additional District Judge, Lahore, dated 13-10-2000 and 5-9-2001 respectively. However, the respondent is given three months' time for handing over the vacant possession of the disputed premises to the petitioner. There will be no order as to costs. S.A.K./G-197/S Appeal allowed.