' MOULVI ANWARUL HAQ, J.---On 30-11-1991 the petitioner filed a suit against the respondents. In the plaint it was stated that Qamar ud Din the late father of the petitioners obtained land measuring 6- 1/2 marlas, described in para. 1 of the plaint on rent from respondent No,1 subject to payment of Rs,200 per month as rent. Said Qamar ud Din raised a building on the said plot and started living there. The rent was later on enhanced to Rs,600 per month. It was stated that the building was raised with the permission of respondent No,1 and the rent of the land is being regularly deposited.
On 30-12-1989 they received a notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 from respondent No,2 stating that he has purchased the said land vide registered sale-deed, dated 16-1-989 and demanded rent at the rate of Rs,2,000 per month. Qamar ud Din sent a reply to the said notice. After receipt of the said reply the respondent No,1 executed a corrigendum to the said sale-deed which was registered on 1-1-1990. The correction made was that the superstructure on the land has also been sold. The plea taken was that since superstructure was owned by the father of the petitioners the respondent No,1 had no authority to execute the said corrigendum. A declaration was accordingly sought that they are the owners of the superstructure on the plot owned by respondent No,1 and the said corrigendum is illegal and void. Both the respondents filed a written statement. It was denied that only the land was given on lease. It was pleaded that the house was constructed by respondent No,1 in the year, 1972 and it was the house given on rent. Issues were framed. Evidence of the parties was recorded. The suit was decreed by the learned trial Court on 13-11-1995. The first appeal filed by therespondents was dismissed by the learned Addl. District Judge, Lahore on 2-7-1996. C.R. 2905 of 1996 filed by the respondent No,2 was allowed by this Court on 13-4-2005. The said appellate judgment was set aside and the learned District Judge, Lahore was directed to decide the first appeal. Vide judgment and decree, dated 31-1-2006 learned District Judge Lahore has allowed the said first appeal and dismissed the suit filed by the petitioners.
2. Learned counsel for the petitioner has half-heartedly tried to argue that the evidence on record has been misread by the learned District Judge. He has however, vehemently argued that ejectment petition brought by respondent No,2 was allowed by the learned Rent Controller on 10- 10-1994. They filed an appeal which was allowed by the learned Addl. District Judge, Lahore on 2-7- 1996 and the finding recorded was that the building on the said land has been constructed by the father of the petitioners. Writ Petition No, 2134 of 2001 was dismissed on the ground of laches. The precise contention is that the said judgment of the learned Addl. District Judge would constitute a res judicata.
3. Learned counsel for the respondent No,2 on the other hand contends that impugned judgment has been passed by the learned District Judge upon a correct appreciation of the evidence on the record and that the said earlier judgment would not constitute a res judicata having been passed in ejectment proceedings.
4. I have gone through the copies of the record and also have examined the impugned judgment of the learned District Judge as also the judgment of the learned Addl. District Judge, being relied upon by the learned counsel for the petitioner.
5. So far as the merits of the case are concerned, it is in the plaint itself that a notice under section 13-A was served upon Professor Qamar ud Din Ansari, the father of the petitioners by respondent No,2 after purchasing the property. It is also in the plaint itself that a reply was given by Qamar ud Din and it was of the said reply that the corrigendum was executed by respondent NO.1. Shehzad Ahmad the Attorney of the petitioners appeared as D.W.3. He also stated in his examination-in- chief that a notice under section 13-A of the said Ordinance was served by the respondent No,2 and that Qamar ud Din had given a reply. In his cross-examination he was confronted with the reply and he admitted that this was the reply sent by Qamar ud Din. It was marked as Exh.B.1. It has been stated by a learned counsel under instruction from the said Qamarud-Din Ansari, the father of the petitioners, that he is in possession of a house located on the land purchased by respondent No,2 as a tenant of Mirza Munawar Ali, respondent No,1 and the property Number is SW/VB-1-S-44 and as the sale-deed relates only to the land he cannot beejected from the house at the instance of respondent No,2. It was further stated that Qamar ud Din has checked up the Excise and Taxation record and the said property is still in the ownership of his landlord namely Mirza Munawar Ali. Finally it was stated without any demur that Qamar ud Din is paying rent regularly to the said Mirza Munawar Ali in respect of the said house. Exh.D.1 is dated 30-1-1990. It is a case of the petitioner as well as of the respondent that upon receipt of said reply need arose for correction of the said sale-deed (Exh.D.3) and A consequently corrigendum Exh.D.4 was executed and got registered. In view of the said admitted piece of evidence containing the version of the deceased father of the petitioner, the learned District Judge has not committed any error of law or jurisdiction while holding that the superstructure was owned by Mirza Munawar Ali respondent No,1 and was let out by him to Qamar ud Din. Mirza Munawar Ali himself has appeared as D.W.1 to confirm that he has sold the plot as well as the structure to the respondent No,2.
6. Coming to the said main contention of the learned counsel for the petitioner the litigation on the Rent Controller side commenced on 17-3-1990. It appears that by that time Qamar ud Din had died and the application was brought against the present petitioners. The application was dismissed by the learned Rent Controller on 15-12-1991. It was remanded by the learned Addl. District Judge, Lahore on 28-4-1994. After the remand the learned Rent Controller passed an ejectment order on 10-10-1994. Against this order first appeal was filed by the petitioner which was heard by a learned Addl. District Judge, Lahore. He proceeded to hold that the superstructure was owned by the petitioner. The appeal was accordingly allowed on 2-7-1996. Writ Petition No, 21434 of 2001 was dismissed in limine on the ground of laches. It is true that if question of title is decided by a Rent Controller or by the appellate Authority under the said Ordinance then the decision may constitute res judicata. However, the circumstances of the present case are rather peculiar. The litigation in the regular civil Court as also before the Rent Controller was going on side by side. In para. 8 of the said judgDment, dated 2-7-1996 the learned Addl. District Judge has specifically referred to the fact that the civil suit filed by the petitioners had been decreed and it has been declared that the petitioners are the owners of the superstructure. He then refers to his own decision of the even date whereby he had dismissed the appeal. It is but obvious that the learned Addl. District Judge was persuaded by the said decision i,e, one made by me Civil Judge and the other made by himself in the civil appeal. It is a matter of record that the said judgment of the learned Addl. District Judge was challenged in C.R. No, 2905 of 1996 and it was set aside when upon being confronted with the said judgment the learned counsel for the petitioners (respondents in the C.R.) expressed his inability todefend the same. It was accordingly set aside and the learned District Judge was directed to decide the civil appeal. It will thus be seen that the very basis of the said judgment, dated 2-7-1996 passed in the ejectment matter stood knocked out. The most significant aspect of the case is that the said judgment was allowed to be set aside notwithstanding the said earlier judgment of the learned Judge. The appeal which was continuation of the suit was allowed to continue and no plea was taken before the learned District Judge that it is barred in any manner under section 11, C.P.C. Or the principles underlying the same. I, therefore, do hold that the said judgment, dated 2-7-1996 does not at all constitute a bar to the present suit which has been decreed by the learned District Judge upon a proper reading of evidence. The C.R. Accordingly is dismissed but without any orders as to costs.