2007 PLP 643 (CLC)

IQBAL HAMEEDUR RAHMAN, J.

This judgment shall dispose of Writ Petition No.5292 of 2000 and Writ Petition No.5293 of 2000, as common question of law and fact is involved in both these petitions.

2. Brief facts succinctly required for determination of these writ petitions are that a house and a shop in dispute were owned by one Mst. Bakhtan, mother of the respondents, who rented out the same to the petitioner, namely, Muhammad Iqbal vide rent dated 24-6-1984 for a period of 11 months. Subsequently, Mst. Bakhtan died. The present respondents being successor-in-interest and legal heirs of Mst. Bakhtan rented out the house and shop in dispute to the petitioner for a period of 11 months and thereafter the petitioner was to vacate the same. The petitioner paid rent for five months only i.e. from 24-4-1984 to 24-11-1984 and thereafter did not pay the rent. The respondents filed an ejectment petition against the petitioner on 18-2-1990 on the ground of default in the payment of monthly rent for the last three years before the filing of the petition, as well as personal need and that the petitioner had impaired the conditions and utility of the shop and house. The petitioner filed written statement, wherein: he denied the relationship of landlord and tenant and alleged that the property was owned by the Central Government. In view of the controversy, the following issues were framed: (1) Whether the relationship of landlord and tenant exits between the parties? OPP (2) Relief. The learned Rent Controller Jampur after recording of evidence of the parties and hearing arguments of learned counsel for the parties, accepted the, ejectment petition filed by the respondents vide judgment, dated 24-2-1993. Against the said judgment, the petitioner filed an appeal which was accepted by the learned Additional District Judge, Rajanpur/Camp at Jampur vide his judgment, dated 27-6-1998.

3. The respondent filed S.A.O. No.14 of 1998 and Writ Petition No.9339 of 1998 against the judgment dated 27-6-1998 passed by the learned Additional District Judge Rajanpur before this Court. The said appeal as well as the writ petition were accepted by this Court vide judgment, dated 4-10-1999 and the judgment, dated 27-6-1998 of the appellate Court was set aside with a direction to the learned Additional District Judge to decide the matter afresh in the light of certain guidelines. On remand, the learned Additional District Judge Jampur heard the appeals and decided the same in the light of certain guidelines given by this Court vide its judgment, dated 4-10-1999 and dismissed the appeals of the petitioner, holding that the respondents have proved the execution of the rent deed Exh.P.1 vide his judgment dated 17-4-2000. Against the said judgment, the petitioner has filed these writ petitions.

4. It has been argued on behalf of the petitioner that the petitioner had denied the relationship of landlord and tenant and he alleged that the shop and house belong to Central Government; in para.3 of the written statement filed by the petitioner, it is stated that the shop and house are situated in Khasra Nos.67/37 which is the land of Central Government and the petitioner while appearing as R.W.1 had stated so in his evidence; that R.W.2 Muhammad Latif Patwari who had produced the Revenue Record and stated that the land belongs to the Central Government/Settlement Authorities and Naqal Jamabandi also shows the ownership of the Central Government and the learned Rent Controller also in para.10 of his judgment mentioned that in fact Exh.R.1 consists of a report on certain applications of the respondents allegedly moved to the Naib Tehsildar. Patwari had reported that a shop over an area of 1 /3 Marlas and a house over an area of 3 Marlas is in possession of Muhammad Iqbal and owned by the Central Government and Muhammad Iqbal has requested to transfer four Marlas which is under his possession to him on the basis of his possession. In view of the above circumstances and relying upon Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1 learned counsel for the petitioner states that the learned Rent Controller is not authorized to determine such questions and the same is to be determined by the Civil Court, as held in the judgment of the apex Court.

5. On the other hand, it has been stated by learned counsel for the respondents that the ejectment petition of the respondents was allowed on 24-2-1993; the petitioner filed appeal before the learned Additional District Judge, Jampur and the same was accepted and the order, dated 24-2-1993 was set aside. The respondents filed S.A.O. No.14 of 1998 and Writ Petition No.9339 of 1998, which were allowed and the matter was remanded back to the learned Additional District Judge Jampur with certain guidelines and that the learned Appellate Court was to proceed strictly in accordance with the direction/guidelines given in the judgment dated 4-10-1999 of this Court. Further contended that the Appellate Court had, after scrutinizing the evidence, dismissed the appeal of the petitioner rightly and no illegality or irregularity had been committed.

6. I have heard learned counsel 'for the parties and perused the impugned judgment.

7. After the acceptance of the appeal of the petitioner, the respondents had filed S.A.O. No.14 of 1998 and Writ petition No.9339 of 1998 which were allowed and the matter was remanded back to the learned Additional District Judge Jampur with certain guidelines:-- "If the initial induction as a tenant is proved, then possibly the tenant cannot be allowed to deny title without delivery of possession to the landlord and he can be directed to approach Civil Court, if he intended to challenge title of landlord. Since the First Appellate Court did not decide, question of oral tenancy, the case will have to be remanded for fresh decision." After the remand by this Court vide its judgment dated 4-10-1999, the Appellate Court proceeded to decide the same on the basis of direction/guidelines and held that the initial induction of the petitioner as tenant is proved and also held that very important evidence in this case being the rent note/agreement which in both the suits is Exh.P.1. The scriber Muhammad Akmal did appear as P.W.1 and proved the writing of Exh.P.1. Likewise Malik Allah Diwaya (P.W.2) and Muhammad Aslam (P.W.3), the marginal witnesses of the rent deed Exh.P.1 while entering into the witness-box had proved the execution of Exh.P.1. The learned Additional District Judge also held that the premises in dispute were rented out by the respondents to the petitioner who had duly signed the same. The Appellate Court had also held that:-- "When the appellant/tenant is inducted in the premises in dispute as tenant, at this stage he cannot claim their own title and in the similar manners cannot deny the title of the landlord/respondents on the premises in dispute unless ant; until he must vacate the same though he would be entitled to an easy to get same subsequently in another litigation if the appellant would choose so and establish his title against his landlord as held in PLD 1991 SC 242 and it is held in S.A. Waheed v. The Dayal Singh College Trust Society PLD 1955 Lah. 570 that the tenant is bound to pay the rent to the landlord irrespective of the fact that the landlord was or not owner of the property. Under section 116 of the then Evidence Act, no tenant is entitled during the continuancy of the tenancy to deny the title of the landlord. As the execution of Exh.P.1 is proved by the scriber and marginal witnesses, therefore, this issue is decided against the petitioner/defendant/tenant and in favour of the respondents/ landlords."

8. Moreover, it is a concurrent finding of both the Courts below that the petitioner was handed over the possession of the disputed premises as a tenant. The petitioner had denied the relationship of landlord and tenant and the Honourable Supreme Court has held in PLD 1985 SC 1 (supra) that: "Landlord and tenant

Ejectment proceedings

Rule of estoppel

Tenant under general law during subsistence of tenancy, cannot question title of landlord as it stood at commencement of tenancy

Tenant if desires to question, title of landlord must first surrender possession to landlord and then may dispute his title

Tenant if failing to observe said rule his tenancy itself would be fortified under S.111(g)(2), Transfer of Property Act, 1882 on observance of certain procedural and other conditions

General rule of estoppel vis-a-vis a tenant and landlord cannot have uncontrolled application, to cases to be determined under West Pakistan Urban Rent Restriction Ordinance, 1959 but will depend upon facts and circumstances of each case." It was further held that "essential condition of avoidance of estoppel on denial of title in all ordinary is that if a tenant wishes to dispute title of person with whose permission he obtained possession as tenant, tenant must first surrender possession before doing that.

9. In view of the above circumstances, the petitioner should first surrender the possession to the respondents and then agitate the matter in the Civil Court. No illegality or irregularity has been committed by the learned Additional District Judge, Jampur while passing the impugned order, dated 17-4-2000. Resultantly, these writ petitions are dismissed with no order as to costs. H.B.T./M-79/L Petitions dismissed.