PLJ 2006 SC 1271
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmed and Syed
Jamshed Ali, JJ.
AMIN and others--Petitioners
versus
Hafiz GHULAM MUHAMMAD &
others--Respondents
C.P. Nos. 84 & 105-Q of 2005, decided
on 3.5.2006.
(Against the judgment dated 19.8.2005
passed by the High Court of Baluchistan,
(i)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 115--Constitution of
PLD 1992 SC 401; 1976 SCMR 77; PLD 1985
SC 1; 1989 SCMR 913; NLR 1995 Rev. 41; AIR 1937 Lah. 243; AIR 1973 Orissa 44;
1982 SCMR 1120; 1981 SCMR 139; PLD 1981 SC 545; 1996 SCMR 795 rel.
1996 MLD 1543 and 1996 MLD 948, disting.
(ii)
Locus Standi--
----Respondent gave property on rent to
petitioner--Chairman Evacuee Trust Property Board declared said property as
Evacuee Trust, directed cancellation of P.T.O. in favour of respondent and
recommended sale--Federal Government directed sale through auction giving first
right of refusal to respondent--Tenant withhold payment of rent--Ejectment
petition on ground of default, accepted by trial Court, appeals also
dismissed--Leave to appeal--Validity--Petitioners tenants were inducted in the
premises after superstructure had been raised by the landlord and in the letter
of the Federal Govt.--Respondent/landlord had been accepted as
"allottee/occupant"--Not only by virtue of induction in the property
by the respondent but also on the basis of facts, no justification for the
petitioners-tenants to repudiate the title of the landlord--Held: By paying
rent to the E.T.P.B the tenants were making a ground ultimately to claim sale
of the property in their favour--Default was not deliberate--Petitions
dismissed. [Pp. 1275 &
1276] B, D & F
Mr. Tariq Mehmood, ASC for Petitioners
(in both cases).
Respondent No. 1 in person.
Mr. Rashid Awan, ASC for Respondent No.
2.
Date of hearing : 21.4.2006.
Judgment
Syed Jamshed Ali, J.--This judgment will
dispose of CPs Nos. 84-Q and 105-Q of 2005. Both these petitions arise out of
an ejectment matter. The first is by the tenants while the second is by the
Assistant Administrator, Evacuee Trust Property Board (E.T.P.B), who is
claiming rival title qua Respondent No. 1, the landlord. Both petitions seek
leave to appeal against the consolidated judgment dated 19.8.2005 of the
learned Baluchistan High Court,
2.
The property in dispute comprises five shops and a godown on a plot of
land which was provisionally transferred to Respondent No. 1 on 15.9.1960 under
the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The
respondent-landlord raised construction thereon and inducted the petitioners in
the first petition as tenants under a written rent note. On 12.12.1991, on the
application of the Assistant Administrator, Evacuee Trust Property Board
(E.T.P.B), the Chairman of the said Board declared the said property as evacuee
trust, and directed cancellation of the PTO issued in favour of the respondent.
On a revision petition of the respondent-landlord, the Federal Government, vide
order dated 30.3.1994, remanded the case. However, even after the remand, the
Chairman vide his order dated 13.12.1995 maintained his earlier order. He
however, recommended out right sale of the property in dispute in favour of the
respondent.
3.
Pursuant to the recommendation aforesaid, the Federal Government
directed sale of the property through auction giving first right of refusal to
the respondent-landlord. Not contended with the aforesaid order, respondent
filed a suit for declaration in which the plaint was rejected on 28.9.2001 and
his appeal was dismissed on 27.2.2002. The learned High Court on revision
petition of the land-lord, vide judgment dated 10.10.2003, remanded the case to
the trial Court against which leave was granted by this Court in C.Ps. Nos.
213-Q and 218-Q of 2003 which are pending as C.As Nos. 226 & 227 of 2004,
before this Court.
4.
However, as a result of the order dated 12.12.1991, the tenants withheld
payment of rent to the respondent-landlord and started paying it to the
E.T.P.B. on which he filed an ejectment petition. The petitioners-tenants
denied the relationship of the landlord and tenant on which issues were framed
and after recording the evidence, the learned Rent Controller directed
ejectment of the petitioners-tenants from the premises in dispute vide judgment
dated 10.9.2004. FAOs Nos. 41 and 43 of 2004 filed respectively by the tenants
and the Assistant Administration, E.T.P.B., were dismissed vide judgment dated
19.8.2005, impugned in these petitions. Ejectment of the petitioners was
ordered on the ground of default with the observation that the petitioners were
estopped to deny the relationship of landlord and tenant.
5.
Mr. Tariq Mehmood, ASC, who represents the petitioners-tenants, submits
that the principle of estopple contemplated by Article 115 of the
Qanoon-e-Shahadat Order, 1984 (Section 116 of the Evidence Act) was not
applicable in the facts and circumstances of the case. The tenants were only
estopped to deny the relationship during the subsistence of the tenancy and not
when relationship of landlord and tenants comes to an end by operation of law
or intervention of the Court as happened in this case. He vehemently relied
upon the order dated 13.12.1995 of the Chairman, E.T.P.B. who declared the
property as evacuee trust with the result that the PTO, on the basis of which
the respondent had claimed to be the landlord stood nullified and, therefore,
the learned Courts below wrongly applied Article 115 of the Qanoon-e-Sahahdat
Order, 1984. In support of his submission, he relied on an unreported judgment
of the learned Peshawar High Court in Writ Petition No. 1332 of 2003 decided on
11.10.2005, Kumar Kirshna Prosad Lal Singha Deo vs. Baraboni Coal Concern,
Ltd., and others (AIR 1937 Privy Council 251), Izhar ul Hassan Rizvi vs. Mian
Abdur Rahman and others (1992 SCMR 1352). He also relied upon the judgments
noted by the learned Peshawar High Court in the above said case. He next
contended that as a result of order dated 12.12.1991, the Chairman, E.T.P.B.,
the petitioners were threatened with the eviction from the premises in dispute
by the E.T.P.B. and were called upon the deposit the rent and, therefore, in
the circumstances, payment of rent by them to the real owner did not at least
constitute contumacious and willful default. He lastly submitted that dispute
as to title between E.T.P.B. and the respondent is pending before this Court
and it will be appropriate that these petitions are heard alongwith appeals
Nos. 226 and 227 of 2004.
6.
Mr. Rashid Awan, Advocate appearing for the petitioners in CP No. 84 of
2005 adopted the arguments of Mr. Tariq Mehmood, ASC. The petitioner appeared
in person. He, however, did not make any submission.
7.
The submissions made have been considered. The case of the
respondent-landlord that he had raised construction on the vacant plot was
admitted by Petitioners Nos. 1 and 2 while the other petitioners denied it for
want of knowledge. Both the set of petitioners. however, admitted that they
were inducted in the premises as tenants by Respondent No. 1 and have been
paying rent to him till 12.12.1991 on which date the PTO issued in his favour
was ordered to be cancelled. Another admitted fact is that dispute as to title
between the E.T.P.B. and Respondent No. 1 is subjudice before this Court. We
have also noticed that according to letter dated 27.10.1998, Secretary,
E.T.P.B., Government of Pakistan, right of first refusal has been given to the
respondent and in this letter he has been described as "sitting allottee/occupant".
Thus, his right to hold the property has been fully recognized. These admitted
facts have been noted by us to examine whether the principle of Article 115 of
the Qanoon-e-Shahadat Order, 1984, was or was not attracted to the peculiar facts
and circumstances of the case.
8.
The learned High Court while dismissing the FAOs, relied on a judgment
of this Court in Madrissa Darul Uloom Al-Baqiat-ul-Salehat registered vs. The
Additional District Judge (Appellate Court) and another (PLD 1992 SC 401). In
the said case Madarissa Dar-ul-Aloom, the petitioner before this Court, had
obtained eleven kanals of land on lease from E.T.P.B., had raised construction
thereon and then inducted tenants. On eviction petition against a tenant he
denied relationship on the ground that the land belonged to the Lahore
Development Authority. The learned Rent Controller ordered ejectment which was
reversed by the learned Additional District Judge and maintained by the High
Court. This Court interfered with the finding that the tenant could not
repudiate the title of the landlord without surrendering possession.
9.
The other judgments of this Court are also being noted hereunder. The
first is Kalimullah vs. Amin Hazin and others (1976 SCMR 77). In the said case
the title of the landlord was denied on the ground that the property was
evacuee, the principle of Section 116 of Evidence Act, was applied. We will
also like to add that the judgment of this Court in
*. Ahman
Shah Muhammad vs. Emperor (AIR 1937 Lahore 243).
*. Krupasinghu
Routra and another vs. Purna Chandra Misra and others (AIR 1973 Orissa 44).
*. Muhammad
Anwer through his legal representatives vs. Abdul Shakoor (1982 SCMR 1120).
*. Messrs
Muhammad Ismail & Bros. vs. Malik Muhammad Tahir etc. (1981 SCMR 139).
*. Ismail
Brothers vs. Keval Ram (PLD 1981 SC 545).
and the tenant was not allowed to
repudiate the title of the landlord. This is also a case in which the tenant
had set up somebody else's titled. In Muhammad Idress vs. Mst. Safia Begum and
others (1986 SCMR 795), the tenant had denied the title of the landlord by
contending that the transfer in favour of the displaced person from whom the
landlord had purchased had been cancelled and the house was transferred in his
favour. The tenant was not allowed to repudiate the title of the landlord.
8.
The judgment of the learned Peshawar High Court, inter alia, referred to
two judgments of the Lahore High Court which took the view that a tenant is
estopped to deny landlord's title only during the subsistence of the tenancy.
These are Zafar Iqbal and others vs. A.D.C. (G) and others (1996 MLD 1543) and
Sarbland and 19 others vs. Ghulam Fatima and 6 others (1996 MLD 948). In the
case of Zafar Iqbal supra fraud and forgery in setting up by the title by the
land lord was involved while in the case of Sarbland and 19 others, denial was
by a co-sharer. However, none of the
judgments of this Court, noted above was considered.
9.
Perusal of the above judgments shows that in case of denial of
landlord's title in both the situation i.e. when the tenant sets up his own
title or when he sets up somebody else's title, the principle of Article 115 of
the Qanoon-e-Shahadat Order was applied and the tenant was ordered to be
ejected. The reason therefor, is not far to seek. In all the judgments,
dominant feature has been that in ejectment matters, the question of title is
not relevant. We may like to add that if a dispute arises between the two rival
contenders for title to the property, the tenant has no locus standi to
intervene and it is for the appropriate Court to resolve the dispute. We have
also noted some peculiar features of this case in the paragraph 7 ante.
Undisputedly, the petitioners-tenants were inducted in the premises after the
superstructure had been raised by the landlord and in the letter dated
27.10.1998 of the Federal Government respondent-landlord has been accepted as
"allottee/occupant". Not only by virtue of induction in the property
by the respondent but also on the basis of the facts noted above there was
absolutely no justification for the petitioners-tenants to repudiate the title
of the landlord. It appears that by paying rent to the E.T.P.B. the tenants are
making a ground ultimately to claim sale of the property in their favour. Thus,
we hold that principle of Article 115 of the Qanoon-e-Shahadat Order was
applicable to the facts and circumstances of the case and unless the
petitioners had surrendered possession, they could not repudiate landlord's
title.
10.
The second plea of the learned counsel for the petitioners that default
was not contumacious has no merit either. In such a situation, the plea might
have been acceptable had the tenants deposited the rent in the Court and then
filed an inter-pleader suit which was not done. Therefore, we are not persuaded
to accept the plea that the default was not deliberate. As far as the last
contention is concerned, we have also considered it and feel that since the
question of title is not relevant
to adjudicate an ejectment petition, the prayer to hear
these petitions and Civil Appeals Nos. 226 & 227 of 2004 together has no
force. As far as C.P. No. 105-Q/2005 is concerned, it has no merit because as
far as the matter of ejectment is concerned, the position of the petitioner is
not better than that of an intervener.
11.
Resultantly, both the petitions fail and are dismissed.
(M. Ajmal Rana) Petitions dismissed.