MAULVI ANWARUL HAQ, J. --- On 30.07.1989, the petitioner and Mst. Kalsoom-un-Nisa, respondent No. 5, filed an application for ejectment of the respondents Nos. 1 to 4 from a house located in Rawalpindi Urban area. The said house was stated to have been transferred to one Abdul Karim.
On his death, its 1/4th share devolved upon his said widow and the residue went to Muhammad Ismail, a collateral. The petitioner is a son of said Muhammad Ismail. It was stated that at the time when the P.T.D. Was issued, Abdul Shakoor, predecessor-in-interest of the respondents, was in occupation and became a tenant but failed to pay the rent. The plea taken by the respondents was that the said father of the petitioner had made a Will in favour of Abdul Shakoor, who became an owner and on his death, respondents Nos. 1 and 2 became owners. Respondents Nos. 3 and 4 were stated to be residing with them as their relatives. A preliminary issue as to the existence of relationship of landlord and tenant was framed. Evidence of the parties was recorded. Learned Trial Court found the issue in favour of the said landlord and since the payment of rent was not made, ordered for his ejectment on 16.07 1991. A first appeal filed by the respondents was dismissed by 'a learned Additional District Judge, Rawalpindi on 19.01.1993. On 10.12.1995, the respondents filed an application under Section 12(2), C.P.C. On the ground that the learned Rent Controller and the learned Court of first Appeal have decided a question of title and have acted without jurisdiction.
This application was allowed by a learned Additional District Judge, Rawalpindi, on 05.11.1998, who had set aside the judgment dated 19.01.1993 and dismissed the ejectment petition filed by the petitioner, who has been directed to get his title determined by the Civil Court.
2. Learned counsel for the petitioner contends that the impugned order is wholly without jurisdiction. Admittedly, the house was transferred to said predecessorin-interest of the petitioner and had devolved upon the said landlord. The predecessor-in-interest of the respondents was occupying the house at the time of its transfer and thus has become its statutory tenant. A Will was pleaded in favour of the predecessor-in-interest by the father of the petitioner which was not proved and as such the ejectment order was passed and was upheld in exercise of lawful authority.
3. On the .Other hand learned counsel for the contesting respondent relies on the case of Rehmatullah v. Ali Muhammad and another (1983 SCM R 1064) in support of the impugned order.
4. I have gone through the copies of available records. The concurrent findings by the learned Rent Controller and the Court of first Appeal are that the Will has not been proved. The learned Additional District Judge in his impugned order has not at all even touched the said findings. I may note here that the learned Additional District. Judge, who decided the first appeal against the ejectment order has recorded his reasons and has observed that even the original Will was not produced much less proved. He was fully conscious of the legal position and after examining the entire evidence, he observed that there was nothing before the Rent Controller on the basis of which he should have, stayed the proceedings and should have asked the landlord to get established his title before seeking ejectment. This observation of the-Court of first Appeal while upholding the ejectment order has not at all been controverted. In the said case of Rehmat Ullah as well, the alleged landlord, a nephew of the alleged tenant, had claimed that the latter has sold away the shop to him wherefrom he sought his ejectment. The learned Rent Controller recorded the evidence and found that the execution of the sale-deed has not been proved. It was on the basis of this finding that he proceeded to dismiss the ejectment petition, which order was upheld by the Hon'ble Supreme Court of Pakistan by accepting the appeal of alleged tenant. In the present case, the findings recorded by the learned Rent Controller was upheld by the Court of first appeal as well, that the Will claimed by the respondents in favour of their predecessor-ininterest by the father of the petitioner has not been proved. This being so, it cannot at all be said that the ejetment order passed by the learned Rent Controller on 16.07.1991 and upheld by learned Additional District Judge, Rawalpindi, on 19.01.1993 suffered from lack of jurisdiction. Even the ratio of the said case of Rehmatullah is that the tenant should be able to demonstrate that the relationship of landlord and tenant is not established beyond reasonable doubt. In the facts and the circumstances of the present cases noted above, it cannot at all be said that merely by taking a plea that the Will was executed by the father of the petitioner , he should have been non-suited and referred to the Civil Cburt. If this proposition is to be followed then all that a tenant will have to do is to take a plea that the property has been alienated to him by the landlord and the ejectment petition would stand dismissed. No such law was ever laid in the said case of Rehmatullah. Civil Revision is dated 05.11.1998 passed by a learned Additional District Judge, Rawalpindi, is set aside and the application filed by the respondents under Section 12(2), C.P.C. Is dismissed with costs throughout.
The counsel's fee is fixed at Rs. 10,000/-.