' MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide instant Civil Revision as well as Writ Petition No,4750 of 1998, as both of those involve similar questions of law/facts; require alike determination and are directed against the same set of respondents. Civil Revision challenged the judgments/decrees, dated 9-5-1991 and 20-6-1992 passed by the learned Civil Judge, and the learned Additional District Judge, Lahore, whereby petitioners' suit was decreed but on appeal the same was dismissed, respectively. The writ petitioners claimed themselves to be tenants under the respondents and prayed issuance of writ, declaring the act of demolishing petitioner's Khokhas/Cabins, as illegal and violative of the law.
2. Succinctly, relevant facts are that both the revision petitionersand the writ petitioners are doing their respective business in temporary Cabins in form of "Khokhas" placed on Municipal Land adjoining the old University Compound Wall, outside Anarkali Bazar, Lahore, for the last 24 years purportedly as tenants under the then Lahore Municipal Corporation (LMC). The exact place of Cabins/Khokhas of the petitioners is over a Drain/Nala flowing in between the footpath and the wall of the University and LMC treated the petitioners occupants in illegal possession thereof and threatened to remove the unauthorized constructions which led to filing of a civil suit for permanent injunctionby the revision petitioners, wherein they pleaded that they were tenants of the respondents and had been paying rent for the user of LMC's land and their this status was being recognized since their occupation along with the other persons doing business in the same capacity in the adjoining parts. Revision petitioners consequently prayed for issuance of a decree for permanent injunction against the respondents retraining them from interfering in their possession/business or from resorting to their dispossession from the Khokhas/Cabins, without due process of law. Alike claim was put forth by the writ petitioners.
3. Respondents being defendants in the suit filed by the revision petitioners, contested the same by filing their written statement and graded the petitioners as unauthorized occupants/encroachers over the Municipal Land. Respondents averred that the petitioners were liable to be removed under the law applicable. Controversial pleading of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, seized of the suit, out of his appraisal of evidence, concluded that petitioners were doing their business over the land of respondents as their licenses who can charge fee from them and can only eject after notice/hearing of the petitioners, under the Municipal Laws, vide judgment/decree-dated 9-5-1991.
4. Though respondents did not appeal against the judgment/decree of the trial Court yet the petitioners making grievance that they should have been declared as tenants of LMC, filed an appeal before the learned Additional District Judge, which was dismissed and the petitioners were held to be unauthorized occupants of Municipal Land and LMC was permitted to remove them forcibly vide appellate judgment/decree, dated 20-6-1992. Revision petitioners then filed titled revision petition assailing both the judgments of the two Courts below pending which writ petitioners also invoked constitutional jurisdiction of this Court with the relief noted above. These petitions were admitted to regular hearing and after completion of record, have now been placed for final determination.
5. Learned counsel for the revision petitioners submitted that in absence of any appeal or cross objection by the respondents, against the decree, dated 9-5-1991 passed by the trial Court, findings therein on Issue No,5 grading the petitioners as licensees could not have been reversed on appeal of the petitioners. It was further submitted that petitioners were proved to be tenants of LMC but both the Courts below ignoring documentary proof, in support of it, erroneously held otherwise.
It was further emphasized that status of the petitioners over the land in question could not be determined, as no issue on this point had been framed. Two receipts issued by LMC, showing receipt of rent from the petitioners, were heavily relied in support of the stance that they shouldhave been declared tenants and consequently they prayed that their suit should have been decreed, as filed. Learned counsel for the writ petitioners adopted the arguments of the learned counsel for the revision petitioners and insisted that writ may be issued, as the writ petitioners are also doing their business at the same place in the same capacity, for the last more than a period of 2 dacades.
6. Learned counsel for the respondents refuted the arguments of the petitioners and supporting the impugned appellate judgment, urged that petitioners did not produce any evidence about creation of tenancy/ issuance of license by the respondents, thus their suit was rightly dismissed by the Court of appeal. According to him, petitioners were illegal occupants of Municipal Land and they deserved to be evicted/removed as they have also occupied the footpath in front of their Khokhas/Cabins, which is also creating hindrance in smooth running of the traffic/parking of the vehicles. It was further contended that manoeuvred irregular receipts relied by the petitioners were of no value because those have no backing of any proof of tenancy thus those were rightly ignored by the appellate Court.
7. I have heard the learned counsel for the parties and have examined the record. Undisputedly, there is not proof of letting out the Municipal Drain to any of the revision petitioners or` the writ petitioners, so as to cover the same and place their khokhas/cabins. Petitioners did not produce any rent deed; order of any competent authority/officer creating tenancy inter parties or receipts of regular deposit of rent by them. They have simply relied on 2 deposit vouchers Exh.P. 14 & Exh. 15, one of those relates to the year, 1972 and the other is about the year, 1973 and in Column of particulars of payment of those voucher, some Ministers Staff entered/graded the amount of Rs,22.50 as rent. All the other receipts produced by the petitioners i,e, Exh.P.12, Exh.P.13 and Exh.P.16 to Exh.P.18 defined the deposit as "Fine". The deposits relied on the first hand are not regular and on the other hand bulk of those are towards "Fine" which denote that petitioners being in illegal occupation, were being imposed fine by the LMC. Reverting to their status of tenants on the basis of Exh.P.14 and Exh.P.15, on the basis of entry therein regarding the amount deposited as "Rent" they cannot be termed as tenants unless this entry had some backing of rent-note or some order by the concerned official of the LMC. The then Municipalities were being governed by the Municipal Administration Ordinance, 1960 which through its section 3(38) defined rent as below:-- "3(38) "rent" means whatever is lawfully payable in money or kind by a tenant or lessee on account of the occupation of any building or land".
' Besides this definition of "Rent" the "rented land" has beendefined in section 2(f) of the Punjab Urban Rent Restriction Ordinance, 1959, as:-- "rented land" means any land left separately for the purpose of being used principally for business or trade."
8. The above reproduced definitions of the "rent" and "rented land" clearly depict that rent is an amount lawfully payable in money or kind by a tenant or lessee for any land let separately for business/trade. The amount deposited through Exh.P.14 and Exh.P.15 would have been lawfully payable only when there had been creation of tenancy between the parties, which was never created hence, these amounts cannot be termed as "rent" paid and the petitioners cannot be declared to be tenants of LMC. Similarly, file is absolutely thirsty of the proof that the petitioners occupied the land under some lawful authority/permission of the respondents. Had the petitioners deposited the amount in question towards "Teh Bazari Fee", they might have-been considered as licensees but deposit by them is not toward "Teh Bazari Fee", and is in form of "Fine". In this state of evidence on the file, decree for permanent injunction could not have been issued, as the same involved implied declaration of the petitioners being in possession as tenants.
9. Reliance of the petitioners on the noting by the Administrator LMC, dated 27-1-1975, to evolve some policy instead of ejecting the petitioner straightway is of no avail because it was his personal view and did not bind the respondents who had neither created any tenancy nor had granted any license to occupy its Drain/Nala. It goes without remarking that permitting the petitioners to continue with their illegal possession would amount to authorize every citizen to encroach upon public properties and to maintain suit like the one under discussion but law does not favor this course. As regards decision about status of petitioners over the land in their occupations or regarding nature of their possession, without framing of any specific issue to this effect, the controversy was covered by Issue No,5 already framed. Law with respect to framing of issues is firmly settled by the judgment of the apex Court in the case of Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCM R 2018) that where parties enter the trial of the case with all awareness of dispute amongst them and consciously lead their respective evidence, framing and non-framing of issues and placing of onus of proof of those, looses importance. Petitioners in this case never raised any such objection before the Courts below thus it cannot be entertained at revisional stage. Scan of impugned appellate judgment revealed that controversy was correctly put to rest on the basis of evidence on the file, without committing any error of law facts.
10. As regards objection of the petitioners that appellate Court couldnot have set aside the judgment passed by the trial Court on their appeal, in absence of any appeal or cross objections by the respondents, reference can be made to the provisions of Order XLI, Rule 33, C.P.C. Which equipped the appellate Court to pass any decree or order which ought to have been passed or made by the Court of first instance, even where the appeal is as to part only of the decree impugned. I was not also persuaded to accept the contention of the petitioners, by relying on the "Illustration" given beneath the above referred provision of law, as minute analysis of it, shows that the same is not exhaustive and goes against the case put-froth by them. Since respondents were party before the Court for first appeal, it could decide the entitlement of the petitioners to decree for permanent injunction being licenses of LMC. The Court of first appeal is not only the Court of facts but enjoys the same jurisdiction as vested in the Court of first instance, by virtue of provisions of Order XLI Rule 33, C.P.C. Reliance ,by the learned counsel for the petitioners on the judgments by the apex Court in C.P's Nos. 887, 897, 888 and 895-L of 1999, dated 29-7-1999 and in the case of Soofi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor (PLD 1996 Supreme Court 737) is of no help to the case of the petitioners because in both these precedent cases status of the petitioners therein, as tenants/licensees was admitted. In the judgment, dated 29-7-1998 Metropolitan Corporation had leased out its part of land in favor of predecessor Messrs Kashif Zaheer and Parvaiz but in violation of lease agreement, their possession was disturbed on which their suit for damages to the tune of Rs,2,00,000 was decreed. In the other case of Soofi Muhammad Ishaque had occupied the site on the basis of "Teh Bazari Fee" till 4-12-1988 and thereafter on his application, tenancy rights were granted to him by the respondents, subsequently those were regularized on 15-7-1990 on payment of rent at the rate of Rs,200 per month. In this case, shop of the tenant Soofi Muhammad Ishaque was demolished leading to decree for an amount of Rs,2,91,600 in his suit for damages but petitioners were not equipped with any such regularized/granted status of tenant.
11. For the reasons noted above, no case for interference in revisional/constitutional jurisdiction of this Court was made out and consequently both the titled petitions are dismissed. Since the learned Additional District Judge, had granted the petitioners time of 15 days to safely remove their structures, they are permitted one month time to undertake this exercise, meaning thereby that respondents will not take any action against the petitioners till the expiration of one month from the date this judgment is conveyed to them. There will be no order as to costs.