' MUHAMMAD KHALID MEHMOOD KHAN, J.--- Briefly stated the facts of the appeal are that respondent namely Muhammad Rafique Anwar filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance of 1959 (hereinafter referred to as "the Ordinance") against the appellant namely Sheikh Muhammad Khalid, claiming that Property bearing No,S-33- R-12-C/1 situated at 10- Montgomery Road, Lahore in Khasra Nos.7362, 7363, 7364, 7368/ 5435/5436, 4534, 7366, 7367/5435/ 5436, 5437 was declared an evacuee property. The Settlement Department transferred the land measuring 11-Marla 8-sq.Ft. Comprising Khasra Nos.7363/5436 vide T.O.No,752-53 dated 7-11-1977 to him. He on 10-3-1976 got approved its building plan from the Lahore Municipal Corporation, constructed a market consisting of shops, go-downs and rooms under the name and style of "Rafique Auto Market". He rented out a Shop No,1 on ground-floor to the appellant at the rate of Rs,700/- per month, through a written rent agreement dated 21-1-1988, with the passage of time, the rent was enhanced and it becomes Rs,840/- per month. The respondent claims that appellant has failed to pay the rent since January, 1992. He further asserts that Hon'ble Supreme Court of Pakistan vide judgment dated 25-1-1991 declared the land under the shop as non-evacuee on a petition filed by one Mst. Maryam Bibi but in spite of the judgment of Hon'ble Supreme Court of Pakistan, the relationship of landlord and tenant between the parties remained unaffected. The appellant has obtained possession of Shop No,1 being a tenant from the respondent and, as such, he is his tenant in the shop. He further claims that Mst. Maryam Bibi has no interest in the land under the shop as she has already sold her interest and, as such, she is not entitled to claim any right or interest in the land under the shop, nor the appellant can attorn her as his land lady. He further claims that he was not party before the Hon'ble Supreme Court of Pakistan and, as such, judgment dated 25-11-1991 is not binding on him, he has filed a review petition before the Hon'ble Supreme Court of Pakistan against the said judgment.
2. The appellant appeared and denied the relationship of landlord and tenant and claimed that respondent is not the owner of property as the land under the shop belongs to one Mst. Maryam Bibi alias Kumari 'Anneballah Kaul widow of Abdul Latif. The Hon'ble Supreme Court of Pakistan vide judgment dated 25-11-1991 has set aside all orders against her while declaring her the owner of property being non-evacuee. He claims that appellant was party to the said judgment and, as such, the judgment is binding on him. He disclosed that he has entered into a rent agreement with Mst. Maryam Bibi, the new landlady vide rent agreement dated 22-7-1992 and, therefore, the relationship of landlord and tenant ceased to exist between him and respondent, he further claims that respondent is not the owner of superstructure, he had received huge amount in the shape of 'Pagrri' and out of that amount, he has constructed the building.
3. The learned Rent Controller on 14-4-1994 after attending all the assertions and objections of the appellant, passed order under section 13(6) of the Ordinance in the terms as follows:--- "Hence the respondent is directed to deposit the rent at the rate of Rs, 840/- per month from June, 1992 till April, 1994 within 45 days of this order, he will keep on depositing the rent at the same rate for each month before 15th of succeeding month, till final disposal of the petition. If the rate of rent is to be enhanced at any time in accordance with law, then it will be so enhanced. Keeping in view the peculiar circumstances of the case, the respondent will not withdraw this amount till the final disposal of the petition and framed the following issues:--- "ISSUES:
(1) Whether the petition is not maintainable? OPR
(2) Whether the respondents were justified in attorning Mst. Maryam Bibi in view of the judgment of the Hon'ble Supreme Court of Pakistan? OPR
(3) Whether the petition is bad for non joinder of necessary parties? OPR
(4) Whether the respondent has defaulted in payment of rent, if so, for what period? OPA
(5) Relief. "
4. The proceedings were in progress before the learned Rent Controller when respondent filed an application under section 13(6) of the Ordinance claiming that appellant has failed to pay the rent in terms of order dated 14-4-1994. The learned Rent Controller directed the appellant to produce receipts or deposit slips of the rent, but in spite of availing number of opportunities, he failed to produce the same. On his failure to do the needful, the learned Rent Controller struck off the defence of the appellant and passed an eviction order on 8-4-1996 and directed him to vacate the shop within one month.
' The appellant assailed the order through an appeal which too was dismissed on 30-7-1997. Hence the present appeal.
5. Learned counsel for the appellant submits that impugned orders dated 8-4-1996 and 30-7-1997 passed by the learned Rent Controller and first Appellate Court respectively are against law and facts, he submits that appellant has complied with the order and has deposited the rent, receipts in this regard were produced before the learned Rent Controller. On receipt of notice under section 13-A of the Ordinance, he entered into a rent agreement with Mst. Maryam Bibi, the only lawful owner of the shop as declared by the Hon'ble Supreme Court of Pakistan. He further submits that during the pendency of appeal, Mst. Maryam Bibi has also executed a sale-deed in his favour against consideration and on execution of said sale-deed, status of appellant stand changed from tenant to owner. His argument is that learned Appellate Court and learned Rent Controller have wrongly held that superstructure belongs to the respondent and the appellant has taken the shop on rent from the respondent and, as such, he cannot change his status. The learned Rent Controller has wrongly passed order under section 13(6) of the Ordinance especially when the appellant has denied the relationship of landlord and tenant between the parties, he submits that Mst. Maryam Bibi has filed a suit for declaration and possession of the entire property including the shop in dispute and the respondent in the said suit is claimed compensation for raising superstructure on the shop and has admitted that Mst. Maryam Bibi is the owner of land. The order passed under section 13(6) of the Ordinance was ambiguous and against the facts. The learned Rent Controller has not directed the appellant to deposit the specified amount nor ordered when 25% enhanced rent will be applicable. He vehemently argues that it is an established principle of law that all orders and actions based on illegal or void order did not carry the sanctity of law. He placed reliance on Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others (1977 SCMR 1368), Rehmatullah v. Ali Muhammad and another (1983 SCM R 1064), Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1), Syed Izhar-ul- Hassan Rizvi v.
Mian Abdur Rahman and others (1992 SCM R 1352), Amir Ahmed v. Irshad Ahmed 1993 CLC 1074, Umar Hayat Khan v. Inayatullah Butt and others (1994 SCM R 572), Chaudhry Muhammad Saleem v.
Fazal Ahmad and 2 others (1997 SCM R 315) and Muhammad Hanif Khan v. Muhammad Khan, and others (2003 SCJ 702).
6. Learned counsel for the respondent submits that no doubt the Hon'ble Supreme Court of Pakistan has declared Mst. Maryam Bibi, the owner of Property bearing No,333-R-12-C/I but it is yet to be decided whether land transferred to the respondent is the part of restored property as declared by the Hon'ble Supreme Court of Pakistan. He vehemently submits that superstructure was raised by the respondent, the appellant took over the possession of the shop as tenant under a written tenancy with the respondent and, as such, he cannot change his status. He further submits that Mst. Maryam Bibi has no right or authority to sell superstructure of the respondent which he raised after obtaining proper permission on his land. He further submits that according to the transfer order in favour of respondent, he was transferred only the land and it is proven fact on record that he-himself raised the superstructure and as the superstructure belongs to him.
Learned counsel for the respondent submits that appellant is duty bound to restore possession of the shop to the respondent. The learned Rent Controller has rightly passed the ejectment order against the appellant for non-compliance of order under section 13(6) of the Ordinance and, as such, the so-called dispute of ownership could not be taken into consideration while deciding the rent appeal. He relied on an unreported judgment C.P.L.A. No,845-L of 1993 and C.P.L.A. No,846-L of 1993 which were filed against the order of learned Rent Controller passed against the tenants of Manzoor Market on the same facts and objections by the other tenants.
7. Heard. Record perused.
8. The main controversy between the parties emerges out of the pleadings and documents produced, is that Settlement Department transferred open plot measuring 11 Marlas to respondent being evacuee land. He constructed market on the said land; he rented out shops to different tenants including the appellant through a written agreement. Subsequently, the land under the Market was declared non-evacuee by the Hon'ble Supreme Court of Pakistan and one Mst. Maryam Bibi was declared the owner of Property No,33-R/12-C-1. The appellant instead of paying rent to the respondent opted firstly to enter into a rent agreement with Mst. Maryam Bibi and subsequently allegedly purchased the land under the shop through a registered sale-deed from Mst. Maryam Bibi. In these circumstances, the appellant denied the respondent to be his landlord. However, when order under section 13(6) of the Ordinance was passed, the appellant was not claiming to be the owner of shop (the alleged purchase of land is subsequent to the proceedings under the Ordinance). All objections raised before the learned Rent Controller were attended to by the Rent Controller and on 14-4-1994 he passed an order under section 13(6) of the Ordinance. He while passing the order imposed a condition that rent will remain deposited in Government treasury and will not be withdrawn by the respondent till the final disposal of ejectment petition. The appellant failed to comply with the order and ultimately he was ordered to be ejected.
9. (The claim of the appellant that relationship of landlord and tenant does not exist between the parties, has to be seen at the touchstone of dictum laid down by the Hon'ble Supreme Court of Pakistan in this behalf.) It is an established principle of law that where dispute between the landlord and tenant is about the ownership of the property, admittedly the learned Rent Controller has no power to decide the question of title being a Tribunal of limited nature, but it has to be seen whether the dispute between the appellant and the respondent is about the ownership of the property or otherwise. Admittedly, the respondent is the transferee of land under the shop by the Settlement Department, he raised superstructure in accordance with law. The case of the respondent is that he was transferred land by the Settlement Department and he constructed the building thereon, this fact is also admitted by the appellant. The appellant has taken the possession of the shop from the respondent under a written rent agreement and at that time, there was no dispute about land under the shop, the appellant continued to pay rent to the respondent in terms of the rent agreement for more than four years as is evident from the fact that he enhanced the rent of Rs,700/- to Rs,840/- per month after completion of agreed period. The appellant refused to pay the rent only when he came to know that land under the shop has been declared non-evacuee and Mst. Maryam Bibi who was declared to be the owner of the alleged land under the shop, issued a notice to him and he immediately attorned to the lady without confirming the fact whether the superstructure on the land belongs to her or not? Subsequently, reportedly for strengthening his stance; he purchased the land under the shop through a registered sale-deed from Mst. Maryam Bibi. The appellant on the basis of sale-deed of land, which is yet to be ascertained whether the said sale-deed belongs to the land under the shop or not and the said seller was the owner of alleged portion of land transferred to respondent, denied his tenancy agreement with the respondent. The matter of the measurement of land belonging to Mst.
Maryam Bibi came up before the Division Bench of this Court in R.F.A. No,582 of 2002 and it was held that total land declared non-evacuee in terms of judgment of Hon'ble Supreme Court Mst. Maryam Bibi alias Kumari Anneballah Kaul v. The Custodian Evacuee Property Punjab and 166 others (1996 SCM R 1483) is 6-kanals, 13-marlas 6-sq.Ft. And not 8-kanals, 14-marlas 21-sq.Ft. Hence it is yet to be determinable whether the land under the Shop No,1 is the part of land of Mst. Maryam Bibi or not?
10. The learned Rent Controller attended all objections of appellant|D raised before him and tint is the reason he passed a conditional order under section 13(6) of the Ordinance whereby he restrained the respondent to withdraw or receive rent from the government treasury. The order of the learned Rent Controller was the shelter for the appellant because the learned Rent Controller framed the issues and deferred the question of existence or non-existence of tenancy till the recording of evidence. The learned Rent Controller after recording the evidence if comes to the conclusion that tenant is not the owner of shop, the ejectment petition was bound to fail but the appellant failed to comply with the order of learned Rent Controller, the compliance of which is mandatory under the law.
11. The question in the present appeal is not that the respondent is not the owner of shop but the question is whether the learned Rent Controller was competent to pass the order under section 13(6) of the Ordinance, 1959 or not? And if the order was passed by the Rent Controller, whether its compliance was necessary or not?
12. It is an admitted fact that appellant came into possession of the Shop No,1 on 21-1-1988 under a written rent agreement and continued to pay rent to respondent up to May, 1992 when the appellant allegedly received notice from Mst. Maryam Bibi, he entered into rent agreement with the said lady on 22-7-1992 and stopped paying rent to respondent. In reply to para 5 of the ejectment petition, the appellant stated as under:--
5. Denied being incorrect.: As the respondent did not execute any rent deed in favour of the petitioner, however, the respondent had been paying a rent to the petitioner @ Rs,300/- per month till he attorning Mst. Mariam Bibi a new land lady. It is added that after execution of new rent note in favour of Mariam Bibi on 22-7-1992, he stopped paying rent to the petitioner."
13. Rent agreement dated 22-1-1988 available on record shows that respondent was inducted in the Shop No,1 as tenant at the rate of Rs,700/- per month. A copy of T.O.No,75253 in favour of appellant show the area of land transferred to him is 11-marlas, the building plan sanctioned by Lahore Municipal Corporation placed on record shows the location of shop. The learned Rent Controller out of the pleadings of the parties tentatively assessed that respondent is occupying the shop as tenant and in his assessme nt prima facie the relationship of landlord and tenant does exist between the parties, he passed order under section 13(6) of the Ordinance but imposed the condition that respondent will not withdraw the said amount till the final disposal of petition, and framed an issue on the objection of appellant as under:- "2. Whether the respondents. Were justified in attorning to Mst: Maryam Bibi in view of the judgment of the Hon'ble Supreme Court of Pakistan? OPR"
14. The learned Rent Controller rightly passed a conditional order for deposit of rent and has not decided that relationship of landlord and tenant exist between the parties. The appellant in spite guarded order failed to comply with the said orders.
15. The other tenants of Manzoor Market assailed order dated 9-5-1993 through Writ Petitions (W.P.No,4646 of 1993 and W.P.No,4650 of 1993) which were dismissed and the Hon'ble Supreme Court of Pakistan decided the C.P. No,845-L of 1993 and C.P. No,846-L of 1993 on 18-7-1993 in the following terms:--- "The contention raised in support of these petitions is clearly not tenable. The shops were admittedly constructed by respondent No.2 and it was he who had put them in possession thereof. In the circumstances, the petitioners cannot deny their liability to pay rent to them. Thus, the order of the learned Rent Controller does not suffer from any error. Leave is refused."
17. The argument of learned counsel for the appellant that land has been cancelled from the name of respondent and, as such, he is no more be the owner of superstructure on the property of land, has no force. He has relied on Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1).
18. The facts of this case are different from the case in hand. In this case, one Haji Abdul Ghani filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959) against Province of Punjab and Director of Education claiming the ownership of school land and building known as Muhammadia Primary School for Girls, Mohni Road, Lahore, as the school was nationalized Institution, the learned Rent Controller passed an order under section 13(6) of the Ordinance directing respondent to deposit a sum of Rs,76,500/- as arrears of rent at the rate of Rs,1500/- per month and future rent at the same rate by 15th of each month. The tenant deposited the rent as ordered by the learned Rent Controller but failed to deposit the rent for the month of May, 1977 up to 15th day of June and deposited the same on 20th of June, 1977. The learned Rent Controller on default of 5 days struck of the defence of tenant and passed an ejectment order, the tenant filed appeal which too failed, tenant's second appeal was also dismissed. Province of Punjab through Education Department (tenant) appealed before the Hon'ble Supreme Court of Pakistan.
19. The defence of the tenant was that the land was not transferred to the alleged landlord in his personal capacity but it was transferred to a school and, as such, the landlord has no locus standi to file an ejectment petition. The Province of Punjab was also claiming that building constructed on the said plot is with their financial assistance, the alleged landlord was claiming that no doubt he has received financial grant from the Government of Punjab but he has also financed the construction of building and, as such, it makes no difference whether the land was transferred to school but the building was constructed by him, so he is entitled for the rent from the occupant i,e, school. In this background, the Hon'ble Supreme Court of Pakistan held that the question of ownership of superstructure/building is a question of fact which cannot be resolved by the learned Rent Controller and has to be settled by the civil court. As far as the question of denial of relationship of landlord and tenant is concerned, the Hon'ble Supreme Court of Pakistan in Makhan Bano v. Haji Abdul Ghani (1983 SCM R 1064) held as under:- "So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies take premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevant for the purposes of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his statutory duties as provided under the Ordinance."
20. It was further, held that when a person relying on the opening part of definition of "landlord" in section 2 (c) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) and based his claim on the right to receive rent on account of ownership of the property, he will have to "satisfy"
Rent Controller about his title, if he succeeds, he would be adjudged as landlord and if he fails to "satisfy" the Rent Controller, the verdict will be against him. Further if the Rent Controller satisfaction is not beyond reasonable doubt, then the verdict on the question will be against him.
21. In the present case, the appellant is not claiming investment in raising of superstructure. It is also admitted fact that at the time of taking possession of the shop by the appellant, the land under the superstructure was of the respondent, the appellant entered in the premises as tenant under a written tenancy agreement. The ownership of the land under the superstructure became part of the dispute subsequent to entering into the rent agreement and, as such,, the facts of the case, relied upon are distinguishable.
22. Amir Ahmed v. Irshad Ahmed (1993 CLC 1074). In this case, the tenant was the co-owner of the property but in the present case, the claim of the appellant is that he has attorned the new owner of land and, as such, the said judgment is not applicable on the facts of the case.
23. Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rahman and others (1992 SCM R 1352). In this case, the tenant after taking the possession of the property on rent purchased the rights and interest of one of the landlords then filed a suit for partition. The ejectment order passed against the tenant was set aside by the Hon'ble ''Supreme Court of Pakistan holding that tenant being in possession and having purchased part of the same could not be evicted unless in the partition suit filed by him is finally decided that he, has no claim in the property in question. In the present case, no suit for partition has been filed nor could be filed and admittedly respondent has constructed building on the plot and is the owner of the same.
24. Learned counsel for the respondent has relied on unreported judgment passed in CPSLA No,845-L of 1993 and CPSLA No,846-L of 1993 against other tenants of the same building who were also claiming that they have attorned to Mst. Maryam Bibi as their landlady. The Rent Controller passed the order of eviction of the said tenants on violation of non-fulfillment of Order 13(6) of the Ordinance, 1959, the said tenants assailed the order of Rent Controller up to the level of Hon'ble Supreme Court of Pakistan and it was finally decided by the Hon'ble Supreme Court of Pakistan as under:-- "The contentions raised in support of these petitions are clearly not tenable. The shops were admittedly constructed by respondent No,2 and it was he who had put them in possession thereof. In the circumstances the petitioners cannot deny their liability to pay rent to them. Thus, the order of the learned Rent Controller does not suffer from any error."
25. Learned counsel for the respondent further relied on Kaneez Fatima v. Khalil Ahmed Sharar and 2 others (1989 SCM R 2041). In this case, controversy between the landlord and tenant was that the tenant was the owner of land under the building while superstructure was belonged to landlord. It was held that petitioner entered into building as tenant and, as such, is liable to pay rent at least for superstructure of the building being tenant in law.
26. Arguments of the learned counsel for the appellant is precisely that no doubt he entered in the premises as tenant but subsequently when the land under the building was declared non- evacuee, he on receipt of notice from the landowner entered into a rent agreement with her and, as such, the relationship of tenant and landlord seized to exist between the appellant and the respondent. This argument of the learned counsel is against the facts of the case. The appellant was inducted as tenant in the shop. The shops were constructed by the respondent on a land which was transferred to him. The shop is the part of building constructed with the permission of Lahore Municipal Corporation. The appellant if subsequently entered into a rent agreement with the owner of 10-Mentgomery Road, Lahore assuming that land under the shop is no more of the property of appellant and the superstructure became the property of landowner, it was his own fault. It is proven fact that superstructure is undisputedly owned by the respondent and the appellant in case wants to claim the ownership of superstructure on the basis of alleged sale-deed by Mst. Maryam Bibi (although the said sale-deed is not on record), he has to first vacate the shop and to restore the possession to the respondent. If he succeeds to prove that he purchased the land from the lawful owner along with superstructure thereon, then respondent will be bound to restore the possession to him. The other aspect of the case is that the learned Rent Controller passed a reasoned and guarded order whereby the rights of the appellant were fully protected. He was to deposit the rent in Government Treasury, and in case, he succeeds after recording the evidence, that relationship of landlord and tenant does not exist between the parties, the rent so deposited was refundable to him but the appellant opted not to avail the opportunity allowed by the Rent Controller and, as such, the ejectment order against him became final. In view of the above, both the learned courts below have rightly passed the eviction order against the appellant.
The appeal has thus no force and is dismissed.
27. The appellant will hand over the vacant physical possession of the Shop No,1 to respondent within one month from the date of announcement of the order/judgment.