SYED SAJJAD HASSAN SHAH, J.---Government of Khyber Pukhtoonkhwa through Secretary Board of Revenue Peshawar and three others called in question while invoking the constitutional jurisdiction of this court, the validity and propriety of the judgment/order dated 10-2-2010 passed by the learned District Judge/Zilla Qazi, Dir Lower, whereby, appeal filed against the judgment and order dated 3-11-2009 passed by the learned Senior Civil Judge/Rent Controller, Dir was dismissed.
2. The chequered history of the case stated as that the respondent No,1 being owner of the properties as detailed in the caption of the application, sought the ejectment of the petitioners/tenants (hereinafter called as the petitioners) under section 13 of the Rent Restriction Ordinance, 1959. The averments made in the application are that the suit property devolved upon the respondent No,1, (hereinafter called as the respondent) being the legacy of Nawab Muhammad Shah Khisro Khan. The litigation between the predecessor-in-interest of the respondent and the Govt. Of N.-W.F.P., through Deputy Commissioner Dir was pending decision in the High Court and then on 8-11-2001 the matter was remanded to the Court of Federal Land Commission, Islamabad, in view of the direction of this court the Federal Land Commission taken up the proceedings and the decision was made on 6-5-2002 in favour of heirs of said Nawab Muhammad Shah Khisro Khan. In pursuance thereof, an agreement dated 21-8-1984, executed between the then Deputy Commissioner on behalf of the petitioner No,1 and Nawab Muhammad Shah Khisro Khan through general attorney and thereafter, the then Deputy Commissioner, District Dir and Chairman District Council, Dir executed an agreement at Timargarha, whereafter, on 6-5-2002 the judgment passed by Federal Land Commission, declared the respondent No,1 as owner of the suit property. Thereafter, the petitioners have failed to abide by the terms and conditions of agreement dated 21-8-1984, equally, in view of unbecoming attitude of the petitioners the respondent protested and asserted that the terms and conditions of agreement, by now being superfluous and valueless and having no binding effect, as, the petitioners failed to pay the rent, thus stood defaulter. She further averred that a notice sent through postal registered A.D. To the petitioners, directing them to pay the due rent, but they have failed to pay the payment of rent since August, 1984 to June, 2002, thus, committed default, resultantly, bound to deliver the vacant possession of the suit property to the respondent. The petitioners contested the claim of the respondent No,1 by filing their replication and refuted the same on the ground of jurisdiction, however, admitted in their averments, the decision made in favour of respondent by the Federal Land Commissioner. They further admitted the execution of agreement dated 21-8-1984 and claimed that vide paragraphs Nos.2 and 5 of said agreement, the owner of the property would be the party to the litigation in whose favour the decision would be made by the High Court. However, while deciding the writ petition, the High Court directed to the Federal Land Commission to decide the dispute after recording of evidence by both the parties. It was further agreed that till the time of the decision of writ petition, the agreement ibid would be binding for the parties. It is also averred that the petitioners have been depositing the rent as per terms of agreement. The petitioners moved an application on 12-6-2006 contending therein, that between the parties of the instant ejectment petition, no relationship of landlady and tenant existed; therefore, the respondent has no locus standi to file the ejectment petition against the petitioners. However, again reference made of MLR 123, that the decree passed by the Land Inquiry Commission, could not be implemented by the Civil Court and the ejectment petition was not maintainable. In their averments, further pleaded, that they have approached the august Supreme Court against the judgment passed by the High Court. This application contested by the respondent No,1 on variety of the grounds, asserted therein that being owner of the suit property, also enjoying the status of landlady and the proceedings are maintainable before the Rent Controller under section 13 of the Ordinance ibid. It is further averred that the petitioners are bound by the terms and conditions of agreement dated 21-8-1984, more so, the petitioners in their replication dated 13-7-2002 admitted in paragraph-5 that, petitioner No,4 deposited the amount of rent in A/C No,1621-5 Muslim Commercial Bank. Likewise, in paragraph-6 they further averred that the respondent bound to wait for the final decision of pending writ petition. The Learned Rent Controller decided that, the relationship of tenant and landlady existed between the parties, therefore, the ejectment application filed by respondent No,1 against the petitioners under section 13 of the Rent Restriction Ordinance, 1959 did not fall'within the ambit of MLR 123, this court has the jurisdiction to adjudicate upon the ejectment application made by the respondent No,1, thus, the learned Rent Controller rejected the application on 6-11-2006. Feeling being aggrieved and dissatisfied, assailed the judgment and order in appeal. The learned appellate court partially allowed the appeal and Rent Controller was directed to decide the relationship of landlady and tenant in accordance with law and remanded the case to the Rent Controller on 8-11-2007. The judgment and order passed by the learned appellate Court challenged vide Writ Petition No,340 of 2009 in this court. The honourable Division Bench of this court heard on 15-4-2009 and being without merit dismissed the same in limine. After ,remand, the learned Rent Controller in view of the direction of the learned appellate court again decided on 3-11-2009 that the relationship of landlady and tenant existed between the parties, while rejecting the application made for dismissal of ejectment application, issues framed and the matter fixed for recording of evidence. The petitioners again being aggrieved assailed the judgment and order passed by learned Rent Controller by filing art appeal. The learned appellate court dismissed the same on 10-2-2010, hence the instant writ petition.
3. The learned counsel appearing on behalf of the petitioners contended that no relationship of landlady and tenants existed between the parties, the judgment passed by the High Court challenged before the august Supreme Court, thus, the decision must be awaited. He further contended that no agreement of tenancy executed in between the respondent No,1 and the petitioners, therefore, the respondent No,1 has no locus standi to file the ejectment petition against the petitioners. He further contended that the judgment and order passed by fora below are not in accordance with the provision of law and also violatory to the record available on the file of the present proceeding. The learned counsel for the petitioners confronted with that the petitioners produce any document on record, showing the ownership of the suit property, he could not point out any document to substantiate his plea of non existence of relationship of landlord and tenant.
4. The learned counsel appearing on behalf of the respondent No,1 strenuously rebutted the arguments of learned counsel of the petitioners and contended that the present proceedings instituted in the year, 2002, till today the matter could not proceed beyond the stage of the decision of relationship of landlady and tenant, these protracted proceedings reached to this court, in second round of litigation and that too on the same ground. He further contended that the petitioners impliedly admitted the ownership of the petitioners in their written reply, as they have averred that they have been depositing the rent as "Imanat" in Muslim Commercial Bank, they have further agreed in agreement deed dated 21-8-1984 that the decision of the High Court pertaining to the ownership of the suit property would be final and to be acceptable to both the parties, the petitioners are bound by terms and conditions of said agreement, same was also admitted in replication dated 13-7-2002, vide the judgment of honourable High Court, the question of ownership has been decided in favour of the respondent No,1 and the findings rendered by the .
Member, Federal Land Commission have been confirmed.
5. Arguments of both the parties considered, record carefully perused.
6. The only question decided since 2002 till today that whether the relationship of landlady and tenant existed er not between the parties. We have scanned the entire record pertaining to the controversy spreading over 8 years and only above stated issue could have been decided between the parties. In this respect the petitioners, even now feeling dissatisfied in the wake of unnecessary litigation putting all efforts to retain the possession of the suit premises at all costs, however, being the functionary of the state, they are the custodian of rights of the A people, it is their responsibility to safeguard and afford protection to the persons and properties of the citizens.
7. In this background, the controversial question agitated by the petitioners, finding no support from an iota of evidence on record. Their contentions although agitated in replication, but without any supporiing document etc., the written reply made on 13-7-2002, they have not denied the relationship of landlady and tenant, however, pleaded in paragraph-5 that the petitioner No,4 have been depositing the rent as "Imanat" of disputed premises in A/C No,1621-5 Muslim Commercial Bank as per agreement (dated 21-8-1984) thus, never remained as defaulter. In paragraph No,4, it is further averred that as per the term and condition Nos.2, 5 of agreement deed dated 21-8-1984, it was agreed upon that the decision regarding the ownership of Bus Stand shall be binding upon both the parties, as to be made by the honourable High Court in pending writ petition and till then the terms and conditions of above stated agreement would be observed in their letter and spirit.
8. This Court, while deciding the writ petition filed by the petitioners directed the Federal and Commission to decide the matter in between the parties, after recording evidence. The Commission in compliance of the order of this Court, decided and declared the predecessor-in- interest of the respondent No,1 as owner of the , suit property. The deciion so made by the Federal Land Commission, again challenged by the petitioners vide Writ Petition No,924 of 2002, decided on 26-4-2006, the honourable Division Bench of this Court considered the background of present litigation between the parties in-extenso and in paragraph-18 of the judgment, the observations made as follows:- "In the wake of the aforesaid discussion, we are of the firm opinion, that the Member Federal Land Commission has rightly followed the directions/observations of this Court while delivering the impugned judgment. The disputed question of fact is beyond the scope of Article-199 of the Constitution of Pakistan and we cannot upset and substitute the findings recorded by the competent forum regarding disputed question of fact".
The decision as was awaited made in above referred terms, while dismissing the writ petitions.
9. The petitioners during the course of litigation raised inconsistent pleas from time to time and failed to abide by their own covenants, by taking somersault on one pretext or other to prolong their illegal possession over the suit land for indefinite period at the risk of repetition it is reiterated that, in their written statement it was asserted about the deposit of the rent and also to implement the terms and conditions of agreement dated 21-8-1984, rather the conditions laid down in the said agreement that if the writ petition decided in favour of the first party, then the first party will be the undisputed owner of the suit-land along with entire superstructure constructed thereupon. Since Nawab Muhammad Shah Khisro Khan the predecessor-in-interest of the respondent No,1 declared as owner of the suit property, by the judgment of Federal Land Commission,' as well as by the Peshawar High Court, the denial of relationship of landlady and tenant seems to be against their pleadings and this objection even on this ground was not sustainable, as it is by now well-settled principle of law of pleadings that, the party to the suit can not travel beyond its pleading and no claim can be B entertained which has not been averred in the pleading of the party. Regardless of the said principle, an application was made to deny the relationship of landlord and tenant.
10. After declaration of the ownership of the respondent No,1 by the Federal Land Commission and dismissal of the writ petition filed by the petitioners with the observations that the findings regarding the ownership of the respondent No,1 are in accordance with the directions/observations of this Court and declined to interfere in finding so rendered in favour of the respondent No,1 by F.L.C.
11. The entire record of the case speaks of the ownership of the respondent No,1, rather the petitioners admitted conditionally, that the respondent No,1 would be admitted as owner of the suit property, if so declared by the High Court in the writ petition, the same has been decided on 26-4- 2006, thereafter, the petitioners were supposed to invariably leaned in favour of the judgment of this Court, but still they were dissatisfied and restricted to the stance which was groundless and unfounded in the eyes of law.
12. Besides, questioning and litigating against the title of the respondent No,1, the petitioners have failed to show their nexus in any way in the suit property, however, they have admitted to deposit the amount of rent in favour of the respondent No,1, moreso, the respondent No,1 was declared as owner of the suit property, hence, the relationship of landlady and tenant established on the record. In order to substantiate our view, the reference of provision of section 2 clause (c) which reads:- S.2(c). "Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land, whether on his own account or on behalf of or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord.
13. The owner of the premises, entitled to receive rent from a tenant, notwithstanding, that he never received the rent from the tenant, C he is to be considered as landlord within the ambit of aforestated provision of law, while interpreting the provision of section 2(c) the honourable Judge reproduced the said provision and considered and interpreted the same (sic.) observed in a case titled Syed Amjad Ali Shah v. Muhammad Afzal and others reported as PLD 1987 Lah. 280 the relevant para-7 at 508, wherein, it was observed that:-- "Since the crucial question in this litigation which goes to the root of it maintainability is as to whether petitioner falls within the statutory definition of "Landlord". I advert to section 2(c) of the Punjab Urban Rent Restriction Ordinance, 1959, the text of which has been set out hereunder:-- "S.2(c)."Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land, whether on his own account or on behalf of or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord"
14. A perusal of the above reveals that rubric to this law is the expression "entitled". The intention of the framers of this piece of legislation is clearly beyond any ambiguity that a person to be a landlord within the meanings of the above clause is not restricted to a person who actually receives rent, but it also contemplates within its ambit a person who is eligible to receive rent though he might have never in fact received rent in the past. To illustrate this point, one may say that, an attorney, an estate Manager, owner, co-owner, etc. Are the persons who simultaneously at a given point of time, are entitled to receive rent and thus are landlords.
15. In this view of the matter, there is no ambiguity in our mind to declare the respondent No,1 as owner/landlady of the suit premises and entitled for the remedies available under the N.-W.F.P.
Rent Restriction Ordinance 1959.
16. As mentioned above, that vide agreement dated 21-8-1984, the petitioners have also agreed to abide by the declaration (sic.) would be made by the High Court. The respondent No,1 has been declared as owner of the suit property by the Member Federal Land Commission and findings so made have not been interfered with, rather maintained while deciding the Writ Petition No,924 of 2002, by honourable Division Bench of this court, therefore, the petitioners arc bound by this settlement, they are estopped to repudiate the title of respondent No, 1 as per terms and conditions of the said agreement, they are bound to admit the ownership of respondent No,1 as declared by the FLC as well as in writ petition ibid. In this respect reference made of a case titled A.R. Khan v. P.N.
Boga through Legal Heir, reported as PLD 1987 Supreme Court 107, wherein, it was held that:- In Principles and Digest of the Law of evidence by M.Monir, Volume II, page 1245 the following comments find a place:- "Estoppel by accepting benefit under a judgment, order, decree, agreement, or other arrangement:---When a deed confers on a person certain benefits burdened with certain obligations, that person has the right to elect whether he would take the benefits under the deed or not. If he does elect to take the benefits under the deed, he must also, bear the burdens created thereby. The law does not permit him to retain the benefits and repudiate the burden. If a party accepts the benefit of a judgment, some authorities hold that he will be estopped to appeal from it, to dispute the Court's jurisdiction, or otherwise to deny its validity and force. On the other hand, if a party declines to accept a judgment or decree in his favour and seek another, he will not be permitted to claim the first, on the second one turning out less favourable to him. A party who has adopted an order of the Court and acted under it cannot, after he has enjoyed a benefit under the order contend that it was valid for one purpose and invalid for another. Where a person allows an irregular order to be passed and obtains benefit thereunder, he cannot say that it should be set aside, particularly when the parties cannot be placed in their original position. Where a person accepts a benefit under a decree or an order of a Court, he is estopped from challenging that order by appeal; but this principle is not applicable where the benefit accepted would in any case be his whether the appeal succeeded or failed, as for instance, where the plaintiff accepts some installments under a decree payable by installments, or where the acceptance of the benefit is notvoluntary and the benefit is forced upon him by the Court, and notwithstanding his protest. A party accepting a benefit under a compromise, an award, or a partition, is estopped from questioning the transaction".
17. In AIR 1933 PC 167, the law was laid down as follows:-- "It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot to use the words of Honeyman, J., in Smith v. Baker (SC 350) at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and at another say it is void for the purpose of securing some further advantage. See also per Lord Kenyon, C.J., in Smith v. Hadon (2 Sm.. LC 140)."
18. The change in stance from time to time by the petitioner in the proceedings conducted by the learned trial Court amounted the blowing hot and cold at the same time, obviously the conduct of the petitioner hit by the principle of approbation and reprobation, not permissible in the legal proceedings. The reference can be made of the pleadings of the petitioners, wherein, they took the contradictory and inconsistent pleas e.g. The petitioners in application challenged the provisions contained in agreement, as they have allegedly raised the construction over the suit property during the pendency of the litigation, probably; their U-turn was for the purpose of protecting the construction raised during pendente lite amounted violation of law).
19. The petitioners being public functionaries, not expected to proceed in such a manner, causing monitory loss and accelerating the agonies of public, any such action would be considered as grabbing the property in ownership of the private persons, deprived of its use as per their own choice, however, the petitioners under the cover of administrative machinery of the State, retaining the possession of the suit property for a sufficient long time without any lawful cause and reason, suoh like action invariably can be termed as neither performed in the mode and manner nor enjoying the sanction; nor contemplated under any law of the land, therefore, such functionaries can be held responsible to the aggrieved person and they are abstained to take the shelter of any saving clause, if provided in the relevant law, in such circumstances, no protection can be claimed in the wake of any saving clause, even if provided under the law, because of the reason, that they have exhausted two rounds of litigation spreading over a decade, but failed to bring an iota of documentary evidence or any thing on record to justify their claim in the suit property.
20. For the foregoing reasons, the judgments and orders of both the courts below passed in accordance with law, not suffering from any illegality or irregularity, muchless jurisdictional error, therefore, maintained.
21. This petition is, therefore, dismissed in limine.