SYED KAZIM RAZA SHAMSI, J. --- Two Second Appeals No. 91/2004 titled "Muhammad Bashir Vs. Yaseen etc." and No. 107/2004 titled "Muhammad Hanif Vs. Muhammad Yaseen and others" are directed against a consolidated judgment, as such, these are being disposed of by this 'single judgment.
2. Originally Mr. Asim Mansoor, learned Rent Controller, Okara decided two ejectment petitions titled "Muhammad Yaseen, etc. Vs. Muhammad Hanif' and "Muhammad Bashir Vs. Muhammad Yaseen, etc." by way of consolidated judgment dated 19.10.2002, accepted the ejectment petition titled "Muhammad Yaseen Vs. Muhammad Hanif' and dismissed ejectment petition titled "Muhammad Bashir Vs. Muhammad Yaseen etc." through a consolidated judgment. Two separate rent appeals titled "Muhammad Hanif Vs. Muhammad Yaseen etc." and "Muhammad Bashir Vs. Muhammad Yaseen etc." were preferred in the Court of Mr. Lmtiaz Hussain, learned Additional District Judge, Okara. The appeals were dismissed by learned first Appellate Court vide order dated 5.6.2004. In the circumstances, instant two second appeals have been preferred in this Court.
3. The facts leading to the institution of ejectment petitions briefly stated are that in the ejectment petition titled "Muhammad Bashir Vs. Muhammad Yaseen etc.", Muhammad Bashir (present appellant) sought the eviction of Muhammad Yaseen from shop No. 315 situated in the general market Mandi Road, Okara asserting that he was the owner of the shop and had rented out the disputed shop two years -prior to the institution of the ejectment petition to Muhammad Yaseen at the monthly rent of Rs. 500/-. According to him, no rent note was executed between the parties and Muhammad Yaseen secretly let out the shop to Muhammad Hanif at the rate of Rs. 700/- per month and himself shifted in the adjacent shop No. 314. He, thus, prayed for the eviction of Muhammad Yaseen and Muhammad Hanif on the ground of default in the payment of rent and subletting of the disputed shop. He also alleged his personal need for establishing his on business in the said shop.
4. This petition was contested by Muhammad Yaseen alleging in the written reply that the shop in dispute was sold by Muhammad Bashir vide agreement dated 1.5.1969 to his real brother Muhammad Hanif, son of Ghulam Nabi for consideration of Rs. 15,000/- and the possession of the shop was handed over to said Muhammad Hanif. Muhammad Hanif son of Ghulam Nabi further sold the said shop to Muhammad Yaseen vide document dated 13.9.1977 and since then, he is in possession of the shop in dispute. He alleged that the said shop was rented out to Muhammad Hanif son of Nazar Muhammad at monthly rent of Rs. 150/- per month which later on was enhanced uptill Rs. 500/-. He alleged that Muhammad Hanif son of Nazar Muhammad has joined hands with the petitioner Muhammad Bashir to his detriment.
5. Muhammad Hanif son of Nazar Muhammad through his written reply denied that the shop in dispute was ever allotted to Muhammad Bashir and claimed that he was in possession of the said shop for the last 20 years. He further alleged that his name also appeared in the survey list prepared by the Provincial Government as well as in the jamabandi for the year 1989-90.
6. The facts of the ejection petition filed by Muhammad Yaseen against Muhammad Hanif son of, Nazar Muhammad are identical which were mentioned in his written reply to application of Muhammad Bashir and have already been narrated above. In his ejection petition, he contended that he had purchased the disputed shop vide agreement dated 13.2.1977 and had rented out to Muhammad Hanif son of Nazar Muhammad. He sought the ejectment of Muhammad Hanif son of Nazar Muhammad therefrom on the ground of default in payment of rent since June, 1997 to June, 1999. At that time, the rate of rent was Rs. 500/- per month.
7. Muhammad Hanif son of Nazar Muhammad while contesting the ejectment petition denied his relationship with the petitioner as of tenant and took up the stand that he was allotted the disputed shop by the Provincial Government and is in possession thereof in his on rights.
8. Learned Trial Court consolidated both these petitions and framed following consolidated issues:- - "Issues: (1) Whether the petition is bad due to non-joinder of necessary parties? OPR
(2) Whether this Court lacks jurisdiction to try this matter? OPR-2
(3) Whether petitioner has got no cause of action to file this petition? OPR-1
(4) Whether petitioner has not come to the Court with clean hands? OPR-2
(5) Whether there is relationship of landlord and tenant between the parties? OP-Parties
(6) Whether the petitioner and respondent No. 2 are collusive? OPR-(1)
(7) Whether respondent No. (2) is tenant under respondent No. (1)? OPR(1)
(8) Whether respondent No. 1 subletted disputed shop to respondent No. 2? OPP
(9) Whether respondent No. 2 is owner in possession at disputed shop for the last 20 years.
(10) Relief."
9. Both the parties being conscious of their dispute inter se led their whole evidence consisting upon the oral statements of the witnesses as well as placing documents in support of their versions.
10. Learned Rent Controller after considering all the evidence available on file concluded that Muhammad Yaseen was the original allottee of shop No. 315, thus accepted ejectment petition titled "Muhammad Yaseen Vs. Muhammad Hanif' and dismissed the ejectment petition titled "Muhammad Bashir Vs. Muhammad Yaseen etc.''. The consolidated judgment delivered by the learned Rent Controller was assailed in the learned first appeal which also met with the same fate vide impugned judgment. In the instant second appeals, legality of both the judgments of learned Courts below has been assailed.
11. Learned counsel for the appellant contended that the learned Rent Controller failed to frame proper issues, as such, the dispute between the parties could not be .Resolved in accordance with law nor the parties could lead their evidence properly. Secondly, he contended that the learned first Appellate Court had decided only issue No. 5 while no findings were given on the rest of the issues, as such the judgment is in violation of Order XX, Rule 5, C.P.C. It is further argument of learned counsel for the appellant that the name of appellant Muhammad Hanif son of Nazar Muhammad appeared in jamabandi which jamabandi carries the presumption of truth, therefore, the declaration of both the learned Courts below that the appellant is not the owner/allottee of the disputed shop is based upon the misreading of evidence. Lastly, he submitted that the Courts below while recording findings against the appellant have illegally relied upon the document Exh.R-5 which is judgment of Hon'ble apex Court. In the said judgment, the issue of ownership of the shop in dispute was not before the Hon'ble Court, thus, the ownership was not determined vide said judgment. In support of his arguments, learned counsel for the appellant has relied upon the dictums laid down by the superior Courts in cases titled, "Annanta Kumar. Majumdar and others Vs. Gopal Ghandra Majumdar and others (PLD 1961 Dhaka 65)", "Alam Khan and 3 others Vs. Pir Ghulam Nabi Shah & Company (1992 SCM R 2375)", "Pakistan through Secretary to Government of Pakistan, Ministry of Railways, Islamabad and another Vs. Messrs Rajasthan Alloys and Steel (Private) Limited through Aftab Enterprises, Lahore (PLD 2000 Lahore 157)"and "Faqir Muhammad Khurshid and others Vs. Chief Administrator of Auqaf (PLD 1987 SC 60)".
12. Learned counsel for the respondent while rebutting the arguments made by learned counsel for the appellant submitted that in para 9 of the judgment of the apex Court (Exh. R-5), it was clearly held that the shop in dispute was owned by Muhammad Yaseen, thus the submission made by learned counsel for the appellant are untenable. He has fully supported the judgments recorded by both the learned lower Courts submitting that the same are based upon sound appreciation of oral as well as documentary evidence, as such are liable to be maintained.
13. Anxious thoughts have been given to the submissions made by learned counsel for the parties and the whole evidence on the record with their assistance has been scrutinized. The case-law cited at the bar has also been examined minutely.
14. The judgments reported as PLD 1961 Dhaka 65, 1992 SCM R 2375 and PLD 2000 Lahore 157 relate to the framing of issues requiring findings of the Court on each issue separately. In the instant case, learned counsel has failed to point out as to which issue was not framed by the learned Rent Controller. When asked, whether the appellant had filed any application under Order XIV, C.P.C.
Seeking to frame issues or for amendment in the issues framed by learned Court, the counsel answered in negative and submitted that it was the duty of the Court to frame proper issues. This statement of learned counsel is totally baseless for the reason that firstly Code of Civil Procedure is not applicable in the rent proceedings and it is up to the Rent Controller to adopt any procedure to reach at a just decision in the matter. Secondly, the appellant failed to invoke the provisions of Order XIV, C.P.C. Requesting the Court for framing of necessary issues. .For this purpose, the said provision of law has been promulgated by the legislature in the Code. Moreover, minute scrutiny of the evidence of the parties shows that the parties were conscious about their dispute, thus had led whole evidence to this effect.
15. Furthermore, the cases referred by learned counsel for the appellants relate to the cases regarding the Courts of plenary jurisdiction but do not relate to the cases instituted under Punjab Urban Rented Premises Ordinance, 1959. The Ordinance ibid is the special statute providing its on procedure for deciding the case filed thereunder. It is the principle of law that special statute shall have the overriding effect over the general law. Same is the position with the second submission of learned counsel for the appellant that the Court did not record the issue-were findings and proceeded to decide only one issue. In fact, the learned Trial Court had framed more issues than needed. The core issue between the parties was the existence of relation ship of landlord and tenant. It is the subject-matter of issues Nos. 5 and 7 relating to the petitions, which were exhaustively dealt with by both the learned Courts below. Accordingly, the submission of learned counsel is repelled.
16. Para 9 of the judgment (Exh. R-5) clearly manifests that the question of ownership was finally and substantially decided by the apex Court in favour of Muhammad Yaseen while dismissing the appeal of Muhammad Hanif son of Nazar Muhammad holding that the ownership of shop No. 315 vested in favour of Muhammad Yaseen who is legal proprietor of the suit shop. Thus, the submission of learned counsel for the appellant that the question of ownership was not decided in the said judgment vanished in the circumstances.
17. About the presumption of truth attached to jamabandi, there is no two opinions about its correctness but the apex Court had authoritatively decided the ownership of Muhammad Yaseen in Exh. R-5, therefore, the said jamabandi has lost its efficacy. In the circumstances, the case-law referred to by learned counsel for the appellant is not applicable to the facts of the instant case in stricto senso.
18. On merits, Muhammad Bashir and Muhammad Hanif have no case for the reason that the evidence led by them could not establish their right of ownership qua the respondent, rather had established that Muhammad Hanif son of Nazar Muhammad is the tenant of Muhammad Yaseen who had defaulted in the payment of rent since June, 1997. Muhammad Yaseen through convincing and cogent evidence has proved that his brother Muhammad Hanif son of Ghulam Nabi had purchased the disputed shop from Muhammad Bashir in the year 1969 and he then purchased the same from his brother in the year 1977. The relationship of landlord and tenant between Muhammad Yaseen and Muhammad Hanif stood established through evidence. Even otherwise, the tenant is debarred under the law to challenge the title of his landlord. If the plea of the ownership of the disputed property has been taken by the tenant, then it is his duty to establish through documents having evidentiary value but in instant case appellants were not able to prove the same in any manner.
19. In the circumstances, the concurrent findings of fact recorded by both the learned Courts below are based upon sound appreciation of evidence as well as record, thus no exception could be taken against these findings.
20. For what has been discussed above, both the appeals fail and are accordingly dismissed with costs.
Muhammad Hanif son of Nazar Muhammad is directed to handover the vacant possession of the shop in dispute within one month commencing from the date of this judgment. .