' MIAN SAQIB NISAR, J.-The eviction petition of the appellants was allowed by the learned Rent Controller vide order dated 7-5-2007, but on appeal of the respondents, which was accepted on 8- 5-2008, the noted order has been set aside with the consequence that the petition stands dismissed.
2. Brief facts leading to the controversy between the parties are that the appellants on 9-7-2002 filed an eviction petition under section 13 of the Urban Rent Restriction Ordinance, 1959, against the respondents, the successors-in-interest of Abdul Rasheed alias Sheeda. It was the, case of the appellants that the shop in dispute bearing No,1667/B situated Inside Lohari Gate, Lahore, was purchased by Muhammad Akbar, the predecessor-ininterest of the appellants in the year, 1974 through registered sale-deed, dated 22-1-1974 from Muhammad Yasin, in whose name the property was transferred through open auction by the settlement Department on 5-12-1960. PTO and PTD were accordingly issued in favour of Muhammad Yasin, from whom it was purchased.
3. Earlier an ejectment application filed by the appellants against the respondents was dismissed by the learned rent controller vide order dated 12-5-1996, primarily on the ground that they have failed to produce the PTD; their appeal before the learned Additional District Judge also met the same fate. However, in W.P.No,1165 of 1989, which though was dismissed, but an observation was made that the appellants should establish their title through the Civil Court. Thus, the appellants accordingly filed a suit for declaration about their title in which the respondents were arrayed as defendants; this suit has been decreed on 21-5-2002 declaring their ownership and this decree has admittedly attained finality. Thereafter the appellants filed the present ejectment application seeking eviction of the respondents on the ground of default in the payment of rent and personal need; in these proceedings the respondents denied the relationship of tenancy and raised other legal and factual pleas, on account of which the following issues were famed:-- "(1) Whether there exists relationship of landlord and tenant between the parties? OPA
(2) Whether the respondent is defaulter in payment of rent, if so, at what rate and for what period?
OPR
(3) Whether the disputed property is required by the petitioner for his personal need bona fidely?
(3/A) Whether the PTD or PTO has been issued by the Settlement Department in favour of Syed Muhammad Yaseen? OPR (3/B) Whether the decree passed by Syed Khurshid Ahmed Panu, Civil Judge, Lahore was beyond his jurisdiction? OPR (3/C) Whether the application has been filed with intention to cause harassment to the respondent? OPR
(4) Relief".
' The appellants produced their evidence, particularly the noted decree of the Court and the learned trial Court held that the appellants have proved their title on account of the above decree, besides the order under section 13(6) of Urban Rent Restriction Ordinance dated 7-7-2003, which was passed in the matter had not been challenged by the respondents, thus they have acknowledged the tenancy. It may be pertinent to state here that despite availing lot many opportunities, the respondents failed to produce their - evidence, resultantly, their right in this regard was closed on 7-3-2006, and the eviction petition was allowed vide order dated 7-5-2007.
The respondents challenged this order in appeal, which has been allowed; the learned Appellate Court has come to the conclusion that "The perusal of contents of the eviction petition reveals that it has not been asserted that respondents are tenants under them, so how can they be termed as tenant or how tenancy is created. Though prima facie the respondents have been able to show their ownership regarding the suit shop but they failed to prove that the appellants entered in the premises in disputed as their tenant". Primarily on this basis the appeal was accepted.
4. Heard. On account of the previous litigation between the parties, it is throughout the appellants' case that the respondents have been the tenant of the property. Considering the substance, letter and spirit, the petition and the history of case propounded therein, the appellants in fact are asserting that the respondents is/are the tenant. The backdrop of the earlier litigation given in the petition has not been controverted by the respondents in the written reply thereto. The case set out by the appellants in essence is that the respondents are the tenants. The omission to use the word "a tenant" would hardly make any difference, when the appellants' title is undisputed and they were claiming the tenancy on account of the above. And particularly in the circumstance when the respondents have failed to show as to how have they entered into the possession of the property.
When asked in the Court today, the learned counsel for the respondents states that the explanation about the entry and the nature of the possession is not mentioned in the written reply; but he candidly admitted and unequivocally asserted that the appellants are in unauthorized and illegal possession. It is quite unjust to allow someone to hold and protect such a nature of possession; when it was an evacuee property which was put to auction and was transferred/purchased to/by Muhammad Yaseen through auction, from whom the appellants' predecessor Muhammad Akbar had purchased it, thus in the light of the provisions of section 30 o the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the statutory tenancy had come into being between the transferee and the respondents who claim to be the occupants since immediately after the partition. And despite the earlier ejectment application, which could validly serve as a notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, they have failed to acknowledge the tenancy D and make the payment of the rent, rather contumaciously denied the relationship of tenancy in the present proceedings, when specifically the suit had been decreed in favour of the appellants and against the respondents, therefore, such denial coupled with the closure of the respondents' evidence would be sufficient enough to hold that both the title and tenancy are proved in favour of the appellants and the case falls within the realm of the rule of forfeiture of tenancy. Resultantly, this appeal is allowed, the impugned order of the learned Additional District Judge is set aside and by upholding the order of the learned Rent Controller, the order of ejectment is passed in favour of the appellants and against the respondents for their eviction from the property forthwith.