' This judgment will dispose of S. A. Os. Nos. 747 and 748 of 1979 as they both relate to the same property and arise out of the same eviction petition.
2. Property bearing No, B-I-68-I, situate in Kamoke., District Gujranwala comprises of one godown and a residential portion. The property in dispute was transferred to Mst. Zubaida Begum, respondent in both the appeals and a permanent transfer deed was also issued, in her favour on 11th November, 1972. On 14th July, 1976 a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation Act was issued against Muhammad Siddiq appellant in S. A. Q.
No, 74 of 1979 intimating the factum of transfer in the name of respondent an also to make the payment of rent from the date of issuance of th permanent transfer deed i,e,, with effect from 7th July, 1 976 64 Rs, 35 p.m in respect of a choubara which was in his occupation. The notice Wa produced on record as Exh. A/6. Apparently there was no need to issue another notice in respect of the same choubara to Mst. Ghulam Fatima the mother of Muhammad Siddiq. Anyhow another notice dated 9t. July, 1977 was issued in her favour (Exh. A/5). On 5th November 1977 the respondent filed a petition against both Muhammad Siddi appellant in S. A.
0. No, 748 of 1979 and Mst. Ghulam Fatima appellan in S. A.
0. No, 747 of 1979. This application proceeded on the groundof default, for the non-payment of rent, personal need and damage to t property.I This application for eviction was contested by both the appellant& and a joint reply was filed on 10th December, 1977. Mst Ghulam Fatima appellant denied the existence of relationship of Ian lord and tenant and' the service of the notice was also denied.
Muhammad Siddiq, however, admitted the service of notice and also did not deny -th relationship of landlord and tenant. Keeping in view the different stand raised by both the appellants two set of issues were framed, one relating to Mst. Ghulam Fatima and the other related to Muhammad Siddiq and fo the sake of convenience are reproduced below :-
(I) Whether the relationship of landlord and tenant exists betwee petitioner and respondent No. 1 ?
0. P. P.
(I1) Whether the present petition is premature? If so, its effect? 0. P. R. (III) Relief.
(II). Whether the respondent No, 2 is ;wilful defaulter? P. P.
(1I)-B. Whether the respondent No, 2 has damaged the property? U. P. P.
(II)-C. Whether the disputed property is required by the petitioner for her personal use bona fidley?
0. P. P.
II-D. Whether the petition is premature? 0. P. R.
3. During the trial the respondent gave up Issues Nos. 2-B and 2-C. Concerning the personal need and damage to the property. The learned Rent Controller vide his order dated 5th February, 1979 accepted the application for eviction to the extent of Mst. Ghulam Fatima and dismissed the petition as regards Muhammad Siddiq. The learned Rent Controller, Gujranwala dismissed the application against Muhammad Siddiq on the ground that there was no explanation as to why the notice was not served on Muhammad Siddiq well in time and that the rent demanded in 1976 had become barred by time. The application against Mst. Ghulam Fatima was accepted on account of her denial of relationship of landlord and tenant. Against the aforesaid order of the learned Rent Controller, dated 5th February, 1979 two appeals were preferred, one by Ghulam Fatima \ and the other by Mst. Zubaida Begum. The learned Additional District Gujranwala vide his order dated 26th November, 1979 dismissed the appeal filed by Mst. Ghulam Fatima and accepted the appeal filed by Mst. Zubaida Begum' respondent against Muhammad Siddiq appellant. The learned Additional District Judge on the basis of Exh. A/1, Exh. A/2 and Exh. A/4 as well as Exh. R/14 came to the conclusion that Mst. Ghulam Fatima was shown to be an occupant of the choubara in dispute and the denial of notice as well as the relationship of landlord and tenant did not affect her status as a tenant under the respondent. The ground taken by the learned Rent Controller as regards Muhammad Siddiq was not found to be tenable under the law. It was found that the respondent was not obliged to serve the notice on the occupant immediately after the transfer of the property in her favour. The learned Additional District Judge thereafter adverted to the question of default in the payment of rent by Muhammad Siddiq and it was found that he was a wilful defaulter.
4. Two separate Appeals Nos. S. A. Os. 747 and 748 of 1979 have been filed by Muhammad Siddiq and Mst. Ghulam Fatima. The learned unsel for the appellant has raised the following contentions :- (0 On behalf of Mst. Ghulam Fatima that the findings of the Rent Controller as well as the Additional District Judge holding that the relationship of landlord and tenant subsisted between the parties could not be legally sustained ; '
(ii) That in any case the rent deposited by Muhammad Siddiq could enure for her benefit and she could not be termed as a defaulter ;
(iii) As regards Muhammad Siddiq it was submitted that the default in the deposit of rent was not wilful ;
(iv) On behalf of both the appellants it was stibmitted that the other heirs of Muhammad Tufail, the original occupant, have not been impleaded as a party.
5. As regards the first contention in relation to Mst. Ghulam Fatima t may be, pointed out that she was in occupation of the property as held by the learned Additional District Judge relying upon the documents referred to above she had become a tenant immediately on the transfer of the property in favour of the respondent by virtue of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, even the service of the notice was not necessary to constitute such relations. Reliance may be placed on Abdul Khaliq Qureshi v Saeed Hassan Shah (I). No exception can be taken to the findings in this behalf. Muhammad Siddiq had after the service of the notice tendered the rent for July, August and September, 1976 vide money order dated 17th July, 1976 (Exh. R/I) which was refused. Another money order is said to have been sent vide coupen (Exh. R/2), dated 9th August, 1976 from July, to October 1976 @ Rs,
25. On 11th October, 1976 the rent for the months of July to October, 1976 (4 months) was deposited in Court vide challan Exh. R/6 @ Rs,
25. As has been noted above the notice served on Muhammad Siddiq appellant is dated 14th July, 1976 and 90 days expired on 14th October, 1976. The rent for three years and one month from June, 1973 to June, 1976 @ Rs, 25 was deposited in Court on 26th October, 1976.
The payment of rent beyond 90 days provided under section 30 of the Ordinance Act No, XXVIII of 1958 is not explained. The learned Additional District Judge had rightly treated Muhammad Siddiq as a defaulter as the due rent had not been tendered within the prescribed period. The rate of rent at which the amount was deposited is also doubtful. It has also not been proved if the rent of Rs, 25 was according to the latest assessme nt (Exh.. A/1) for the year 1971-72 which showed the annual assessm ent of the property as Rs, 660.
6. The next question required for determination is whether the rent tendered by Muhammad Siddiq could be treated as a rent tendered on behalf of Mst. Ghulam Fatima. Mst. Ghulam Fatima had denied the existence of relationship of.Landlord and tenant and also the service of notice. In the written reply the objection taken was that the rent had been deposited on behalf of all the heirs of Muhammad Tufail, the original occupant. It was, not contended that the tender made by Muhammad Siddiq in his individual capacity should be treated as a tender on behalf of Mst.
Ghulam Fatima. On account of denial o relationship of landlord and tenant and also the service of the notice under 'B section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, Mst.. Ghulam Fatima cannot be permitted to raise this contention in the present appeal. It was a simple case of forfeiture of tenancy and Mst. Ghulam Fatima having not claimed to have paid or tendered any rent she was liable to be evicted without framing any further issue or inquiry as to the default. Reliance may be placed on Nisar Ahmad v. Nazar Muhammad (2). The learned counsel for the appellant has relied on Abdul Khaliq Qureshi v. Saeed Hassan Shah. Paragraph 36 on which the reliance has been placed may be quoted below :- "36. We may, however, enter a caveat. There may be cases where on the one hand the relationship of landlord and tenant is denied and on the other there is unimpeachable documentary evidence of payment or tender of rent as distinguished from mere oral evidence. In such cases, the principle of approbate {{FOOT NOTE}}
(I) 1979 C 1:C 118 (2) PLD 1974 Lah. 489 {{FOOT NOTE}} and reprobate may not apply since on a better statement of the respondent the Rent Controller may be able to determine the matter of relationship of landlord and tenant and proceed to pass an order under section 13(6) and frame an issue of default.
' However, the later portion of this paragraph may also be quoted :-- "There may therefore be exceptions to the rule decided in the present cases and each case should, therefore, be decided in its own merits. We may also explain that in some cases reference has been made to the forfeiture of tenancy by denial of landlord's title which in general law is good ground. For eviction of the tenant. But this is not a ground of ejectment under section 13 of the Ordinance of 1959. The rule enunciated in the cases referred in this judgment is not based upon forfeiture but on the principle of estoppel against proof of payment of rent or principle of simultaneous approbate and reprobate."
7. In this case it was held by the Division Bench of this Court in paragraph 24 that all the appellants bad unjustifiably raised the issue of existence of relationship of landlord and tenant and their default was contumacious. The property in this case had been transferred in 1968 and the notice had been served earlier but not a single penny was paid and as such the eviction order against the appellants was maintained. This judgment does not advance the case of the appellant. Supreme Court authorities relied in this case clearly establish that in case of a wrongful denial of the relationship of landlord and tenant it amounts to forfeiture of tenancy. As regards the last contention it may be pointed out that the appellant had not taken any objection as to the impleading of the other heirs in the written reply. Rather the preliminary objection No. 1 raised by the appellant was to the effect that the petition was bad o account of the misjoinder of parties. On account of the service of the notice on Mst. Ghulam Fatima and Muhammad Siddiq the interest of the other occupants was fully protected and in any case this would not frustrate the order of eviction.
8. In view of the above discussion this appeal has no force and is hereby dismissed with no order as to costs. The appellants are allowed two months time to deliver the vacant possession.