' SYED KAZIM RAZA SHAMSI, J.---By this single order I intend to dispose of Writ Petition No,4502 of 2010 and Writ Petition No,5087 of 2010 due to commonality of the facts and the subject matter of the-case.
2. Both these petitions are directed against a consolidated judgment dated 1-2-2010 passed by Mr.Abid Rizwan Abid, learned Additional District Judge, Lahore whereby he maintained the order of ejectment dated 13-10-2006 passed by Mr. Muhammad Riaz Bhatti, learned Rent Controller, Lahore.
3. The facts of the case briefly stated are that Syed Mumtaz Hussain son of Syed Mukhtar Hussain was an employee of Atomic Energy Minerals Centre, Lahore. As per terms and conditions of service he was allowed to hire a house according to his entitlement. For this purpose, a lease agreement was executed on 20-12-1993 between Syed Mumtaz Hussain and his employer Atomic Energy Minerals Centre, Lahore, by virtue, of which house No,24-A situated at Ahmed Buksh Road, New Shad Bagh Lahore was taken on lease. The said agreement was made on behalf of Syed Mukhtar Hussain as is evident from-the lease agreement mentioning him as landlord while his son Syed Mumtaz Hussain was recorded as Attorney of Syed Mukhtar Hussain. Syed Mukhtar Hussain executed a Special Power of Attorney in favour of his son Syed Mumtaz Hussain authorizing him to collect rent from the lessee i,e, Atomic Energy Minerals Centre.
4. Later on, as per record said Syed Mukhtar Hussain, the owner of the property as well as the landlord gifted the said property to his daughter Mst. Nazima Naqvi by way of registered Gift Deed dated 15-1-2001. Syed Mukhtar Hussain also rescinded the special power of. Attorney executed in favour of Syed Mumtaz Hussain and informed the Atomic Energy Minerals Department about change of ownership of leased property. The department vide letter dated 1-6-2001 terminated the lease and de- hired the house in question.
5. Mst.Nazima Naqvi after acquiring the title of ownership of the property sent a legal notice of change of ownership to the Atomic Energy Minerals Centre, Lahore but prior to that the house had been de-hired and the lease was terminated. The de fecto possession of the house was delivered to Syed Mumtaz Hussain by lessee department who was in the occupation of the house being son and family member of Syed Mukhtar Hussain.
6. Mst. Nazima Naqvi then filed an ejectment petition against Atomic Energy Minerals Centre, Lahore and Syed Mumtaz Hussain, her brother under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 asserting that she became the owner of the disputed property on 15-1-2001; a legal notice of which was given to the respondent Department as well as to respondent No,2 demanding the rent @ Rs:4178 per month. It was alleged in the ejectment petition that respondent No,1 has neither vacated the premises nor paid the rent as such they are wilful defaulter from February, 2001 till the date of institution of the ejectment petition.
7. Respondent No,1 the department through an application requested the court for striking off its name from the array of respondents on the ground that possession of the house had already been delivered to the landlord on 1-6-2001 as such it is neither proper nor necessary party to the ejectment petition.
8. Respondent No 2 Syed Mumtaz Hussain took up the defence that the lease agreement dated 15- 10-1993 was extended after every three years and lastly it was extended from 14-10-2000 to 13-10- 2003 at the rate of monthly 'rent of Rs,4278 as such the petition was premature and not maintainable. It was also contended that the house in dispute was hired by Atomic Energy Minerals Centre, Lahore for the benefit of respondent No,2 where he was in possession, firstly under the lease agreement and thereafter as the family member of his father. The legality of the gift executed in favour of Mst. Nazima Naqvi was also challenged on the ground of lack of delivery of possession to donee. In these circumstances, he denied the relationship of landlord and tenant.
9. The learned trial court out of the pleadings of the parties framed three issues in respect of relationship, default in the payment of rent and the personal need of the landlord. The court whereafter framed two additional issues also and recorded the evidence of the parties. It was concluded, after appreciation of evidence that the relationship of landlord and tenant existed between the parties as such determined the liability of the rent from December 2003 to onward @ Rs:4278 against respondent. The ejectment petition was accordingly accepted.
10. Being dis-satisfied with the judgment of the learned Rent Controller, the Atomic Energy Minerals Centre, Lahore as well as Syed Mumtaz Hussain filed 'in appeal before the, learned first appellate court whose findings were not different than the one recorded by the learned Rent Controller and the appeals were dismissed.
11. Both the appellants before the learned first appellate court feeling aggrieved by the said judgment have assailed the same in these two separate writ petitions.
12. Arguments of the learned counsel for the parties have been heard and record perused.
13. The examination of the impugned judgment as well as the factual position as noticed leads to the fact that relationship of landlord and tenant was terminated between the Atomic. Energy Minerals Centre, Lahore and Syed. Mukhtar Hussain which fact he (Syed Mukhtar Hussain) himself had admitted in his revocation deed of power of attorney executed in favour of Syed Mumtaz Hussain registered on -2004. It was narrated in the said deed-that House No,24-A, situated Ahmed Buksh Road, New Shad Bagh Lahore was leased out/acquired is Atomic Energy Minerals Centre, Lahore where his son Syed Mumtaz Hussian was employed as a Driller, who was residing in the said house. Urther admitted that for the purposes of collection of rent he had authorized his son through a special power of attorney and that he vide registered Gift Deed dated 15-1-2001 had gifted the said house to his daughter Mst.Nazima Naqvi. It was further narrated in the said deed that Atomic Energy Minerals Centre, Lahore was also informed about the gift deed and cancellation of the Special Power of Attorney executed in favour of Syed Mumtaz Hussain whereupon the Department vide letter No,Admn-6(167)93 dated 1-6-2001 had de-hired the said house. This assertion in the deed explicitly shows that there was no lease in existence on 1-6-2001 as such the Department was never the lessee of said Syed Mumtaz Hussain thereafter. The claim lodged by the respondent Mst.Nazima Naqvi against the Department was totally frivolous and could not be entertained in the ejectment petition. The department had validly informed the learned Rent Controller that the possession of the property in question has been returned after termination of lease agreement to the landlord and they were no more the lessee of the property.
14. Learned counsel for the respondent at this stage submitted that although the possession of the property is not with the Department but yet the arrears of the rent are to be determined payable by the said department. The argument of the learned counsel is untenable for the reason that once the lease was terminated on 1-6-2001, thereafter, no rent was left to he determined by the Court.
Moreover, the rent was being received by Syed Mumtaz Hussain and if any claim is to be lodged for that purpose, Syed Mumtaz Hussain could be held liable.
15. As far as, the status of Syed Mumtaz Hussain in the demised premises is concerned, in the opinion of this Court, he could never be treated as a tenant in the said house for the reason that firstly he was receiving rent from his department on behalf of his father thus falls within the definition of landlord as provided in section 2(c) of the Ordinance, ibid and secondly he being a family member of Syed Mukhtar Hussain was in occupation of the demised premises, as such he could never be treated as a tenant in the house. There is no evidence on the record that either the department or Syed Mumtaz Hussain paid any rent to the respondent lady after termination of the lease agreement as such the relationship of landlord and tenant did not exist between the parties.
In this connection cases reported as 2010 SCM R 446, 2009 YLR 2379 and 1949, 2009 CLC 34, 2009 YLR 1736 and 2007 M LD 732 are relevant. The execution of the gift in favour of Mst.Nazima Naqvi although is not .The subject matter of this case but it can be pointed out that the necessary ingredients of the said gift were not completed delivery of possession of the house had not taken place.
16. Lastly, the learned counsel for the respondent has himself on the file a document showing that Syed Mumtaz Hussain the p had taken his share from Mst.Nazima Naqvi and abandoned the%.% 9- 4-2010. This further proves the fact that till 9-4-2010 the possession of the house was not with Mst.Nazima Naqvi. Learned Counsel for the respondent further submitted that there is a concurrent finding of the fact recorded by both the learned courts below in respect of existence of relationship of landlord and tenant between the parties which cannot be looked into while exercising the constitutional jurisdiction. The proposition placed by the learned counsel does not appeal to judicial mind as in the instant case both the learned courts below have proceeded against settled, law in allowing ejectment of petitioner by misreading the material available on the record for reaching at such conclusion as such in such like situation interference in the said orders is an exception to the general rule that concurrent findings of fact are usually not disturbed in the constitutional petition.
17. The upshot of the whole discussion is that the orders passed by both the learned courts below suffer from misreading and non-reading of material evidence available on the record as such the judgments recorded by them are not sustainable in the eyes of law. Accordingly, both these petitions are allowed declaring the impugned orders being illegal and of no legal consequences as such are set aside. The ejectment petition filed by respondent No,1 is dismissed. The documents retained on the last date of hearing for the perusal of this Court have been returned to the learned counsel for the respondent.