2013 PLP 1004 (YLR)

AMIN-UD-DIN KHAN, J.

Through this appeal the appellant has challenged the judgment dated 12-6-2009 passed by the Additional District Judge, Rahimyarkhan whereby the appeal filed by him was dismissed against the order dated 19-2-2009 passed by the Civil Judge Rahimyarkhan whereby application for ejectment filed by the respondent was accepted.

2. Brief facts of the case are that non-residential property was rented out to the appellant on 10-5-2004 by the predecessor of the respondent. On 2-2-2008 application for ejectment of appellant under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 was filed with regard to the suit property which is a shop fully described in the head note of the application, on the basis that the property is bonafidely required for personal need of the applicants. The reply was filed, according to which rent deed was for 10 years, therefore, appellant in his reply raised objections that the application is not maintainable. He has also denied personal need of the applicants. The learned trial Court framed issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. The learned trial Court vide order dated 19-2-2009 accepted the application and ordered the appellant to vacate the possession of the suit-land and four months time was granted to vacate the possession and the respondent was also directed to return Rs.3,00,000 security to the appellant. The appeal was filed and the same was dismissed vide judgment dated 12-6-2009 and three months' time was granted for vacation of the suit shop, hence this appeal.

3. Learned counsel for the appellant argues that there are other properties available with the respondent and no personal need is in existence for the suit shop to the respondent. Further states that all the legal heirs of the original owner have not filed the ejectment petition, therefore, ejectment petition was not competent. Further that tenancy was for a fixed period of 10 years and that period is to expire on 10-5-2014 therefore, stated that the ejectment application was not competent.

4. On the other hand, learned counsel for the respondent states that there are concurrent findings of fact recorded by both the courts below with regard to the personal need and further with regard to the maintainability of the application. He further states that even filing of the ejectment application before the expiry of 10 years has been fully discussed by both the courts below as the tenancy agreement produced by the appellant is an unregistered document which creates no right in favour of the appellant and in accordance with law that tenancy will be presumed for less than one year period.

5. I have heard the arguments advanced by the learned counsel for the parties and have examined the record with their able assistance.

6. So far as personal need and filing of application by some of the legal heir are concerned, there are concurrent findings of fact recorded by both the courts below, therefore need not to discuss here at the level of second appeal as under the law, this second appeal is to be adjudged at the touchstone of section 100, C.P.C. So far as question of maintainability of the ejectment application before the alleged expiry of the fixed time of tenancy is concerned. I have noticed that the first appellate court fully discussed the law on the subject and came to a right conclusion by relying upon Dr.Nisar Ali Khan and another v. P.I.A through Chairman and another (PLD 2004 Lahore 494). A tenancy for more than period of one year can be created under section 107 of the Transfer of Property Act, 1882 and that can also be created after registration of the said instrument under sections 17 and 49 of the Registration Act, 1908. Admittedly, the tenancy agreement in this case is unregistered document. In the light of law cited above and pronouncement of the august Supreme Court of Pakistan that tenancy can be presumed for a period of less than one year. Therefore, the contentions of the learned counsel for the appellant have no force and I hold that both the courts below reached to a right conclusion, therefore, on this point also this appeal is not maintainable. In the light of what has been discussed above, this appeal being without any force is dismissed. The appellant is granted four months' time from today to handover vacant possession of the suit shoo to the respondent and he will be entitled to receive Rs.3,00,000 security which was paid to the predecessor of the respondent. MWA/A-76/L Appeal dismissed.