' SYED MUHAMMAD FAROOQ SHAH, J.--- Petitioner Hakim Mairajuddin has assailed concurrent findings of two courts below, whereby his eviction from case premises CS No,646/2, Ward No,2, Jacobabad passed by Rent Controller Jacobabad, on 23-9-2004, was maintained in Rent Appeal No,2 of 2004 by the learned Appellate Court, vide order dated 30-4-2007.
2. Precisely, the relevant facts which form background, as set forth in memo of captioned petition are that on purchase of the case premises vide registered sale-deed and subsequently mutation has also been duly effected, the petitioner was served with the legal notice to pay the arrears of rent and hand over the vacant possession of the premises as the same was required for reconstruction by the respondent No,l. Notice was duly replied, wherein the petitioner stated that the case premises is in his possession since the days of his forefathers being evacuee property at the rate of Rs,391/8 per month rent, out of which only. Receipt No,404 Book No,281, dated 2-11-1959 is available with the petitioner. It is further averred that no one has demanded rent, either from the petitioner or from the previous occupant of the said house, prior to the afore stated legal notice.
The petitioner has categorically denied the relationship of landlord and tenant and submitted that the mentioned property belongs to Evacuee and Settlement Department, was in undisturbed possession of his father/grandfather.
3. Perusal of the record reveals that petitioner raised plea that Rent Controller or the appellate Court had no jurisdiction to decide the title of the property which was already pending before Member Board of Revenue.
4. On the other hand, in reply to the instant petition, the respondent No,1 challenged the maintainability of instant petition and submitted that it involves disputed question of facts and law, already agitated and decided by both learned lower Courts below.
5. Respondent No,1 categorically stated that he purchased House bearing No,646/2, Ward No,2/ situated at Danger Muhalla Jacobabad by registered sale-deed, executed on 24-11-2003 and such mutation was duly effected in his name in the relevant city survey record of rights on 31-12-2003. In evidence he has admitted that his father who was previous landlord and owner for about 25 years, neither issued any notice nor received any rent from the petitioner/his father. Learned counsel much emphasized that in reply to the legal notice (page 71 of the file) Advocate for the respondent No,1 stated that subject to proof of ownership his client is prepared to pay the rent at the rate of Rs,391/8 per month, which rent was previously paid to the Custodian Evacuee Property.
6. Learned counsel for the petitioner contended that Extract of The Property Register Card, which the learned counsel filed along with application under Order XLI, Rule 27, C.P.C. Before Appellate Court has not been considered and the application was rejected on technical ground by order dated 17-11-2006. Learned counsel submitted that extract reveals that the respondent No,1 purchased C.S No,646/2 on 31-12-2003 from his father Azizullah which had already been cancelled by the Custodian Evacuee Property vide order dated 22-9-2006, which reads "this property is declared evacuee property as per order of kind EDO (R-Jacobabad Order No,98 dated 1-8-2005 and kind D.O. No,164 dated 2-5-2005." Learned counsel for the respondent No,1 has also filed: along with statement, the order dated. 10-7-2008 passed by Member (Judicial-I) Board of Revenue Sindh which shows that revision application filed under section 164 of Sindh Land Revenue Act, 1967 against the aforementioned order dated 29-6-2005 was dismissed with the direction to the Mukhtiarkar Revenue/City Survey Jacobabad to implement the said order provided no review application is filed. He has observed that "a perusal of P.T.0./P.T.D. Reveals that Azizullah (father of respondent No,1) was allotted extension of house bearing C.S No,646/1 and no evidence has been adduced to prove that Azizullah was also allotted C.S No,646/2."
7. To elaborate the material point with regard to the fact that as to whether C.S No,646/1, Ward No,2 Jacobabad or C.S No,646/2 Ward No,2 Jacobabad was allotted to the father of respondent No,1, the learned counsel for the petitioner contended that the petitioner had filed an application under Order XLI, Rule 27, C.P.C. Before the trial Court, whereby he intended to produce certain relevant documents, which request was declined by learned trial Court by order dated 17-11-2006. Learned counsel contended that similar request is repeated before this Court by filing application under Order XLI, Rule 27, C.P.C. (C.M.A. No,1503 of 2012), wherein the petitioner's counsel intend to produce certain documents including (i) Provisional Transfer Order (P.T.O.) dated 23-10-1964 issued by.
Deputy Settlement Commissioner, Jacobabad in favour of Azizullah Khan (father of respondent No,1 Abdul Rasheed) in respect of property bearing House C.S No,646/1 Ward No,2 Jacobabad owned by Tahliomal and others Hindus, (ii) True copy of Challan dated 24-11-1964 in respect of Settlement Fees Rs,11.25 paid by Azizullah son of Koura Khan (father of respondent No,1 Abdul Rasheed) in respect of House C.S .No,646/1 Ward No,2 Jacobabad, (iii) True copy of application dated 4-12-1964 by said Azizullah (the father of respondent No,1,) for issuance of Permanent Transfer Deed (P.T.D.) in respect of. Property bearing House C.S. No,646/1 Ward No,2 Jacobabad, (iv) True copy, .Of affidavit dated 13-12-1964 by said Azizullah (father of respondent No,1) in support of issuance of P.T.D, in respect of property bearing house C.S No,646/1 Ward No,2 Jacobabad, (v). True copy of record of Permanent Transfer Deed (P.T.D.) dated 26-9-1966 in favour of said Azizullah (father of respondent No,1 Abdul Rasheed), in respect of property bearing House C.S. No,646/1 Ward No,2, Jacobabad.
8. In view of aforementioned documentary evidence. It is contended that mentioned documents are basic documents of House C.S No,646/1 Ward No,2 Jacobabad which was initially transferred by P.T.O. In 1964, for which payment was made and finally P.T.D. Was issued and in all these documents there is no mention of House bearing C.S No,646/2, which is settled evacuee property and the petitioners are being ejected by both learned lower Courts without any lawful authority' though the petitioner is entitled for substantial justice by moulding relief according to changed circumstances.
9. The other side did not categorically challenge the authenticity and genuineness of the aforementioned documents but stated that these documents were not produced at the proper stage and have been filed just to linger on the case unnecessarily.
10. Learned counsel for the petitioner emphatically submitted that both courts below have seriously erred in not appreciating the documentary evidence which the petitioner intended to bring on the record. To sum up his arguments learned counsel contended that the respondent No,1, his father and grandfather may be the ,owner having continuous undisturbed possession of House C.S. No,646/1 and not on C.S. No,646/2 Ward No,2 Jacobabad, that both learned lower courts below committed err to disbelieve the evidence adduced by the petitioner. The record pertaining to the Custodian Evacuee Property reveals that the title of landlord/respondent No,1 has been questioned/ challenged before the Board of Revenue, therefore, in all fairness learned lower courts below should have stayed their hands, till determination of title.
11. Conversely, learned counsel for the respondent No,1 relied on the orders passed by 1st Rent Controller dated 23-9-2004, maintained by the appellate Court Jacobabad on dated 30-8-2007 and order dated 17-11-2006 passed on application filed under Order XLI, Rule 27, C.P.C., contended that abovementioned orders are speaking one and do not suffer from any infirmity, illegality or gross irregularity, therefore, the petition having no merits may be dismissed.
12. Suffice to say that the documents annexed along with application, filed under Order XLI, Rule 27, C.P.C., bearing M.A. No,1503 of 2012, are material documents and necessary to reach at the just conclusion of the case in hand, to do substantial justice, therefore, application is allowed.
13. According to learned counsel for the petitioner, entries in evacuee property record pertains to C.S. No,646/1 Ward No,2 Jacobabad and allegedly owned by the father of respondent No,1 and the house in possession of petitioner is bearing C.S No,646/2 Ward No,2 Jacobabad, does not constitute a conclusive evidence of title of ownership, particularly neither father of respondent No,1 received any rent from the father of petitioner nor he claimed the possession of said house occupied by r the petitioner. It is further contended that the petitioner is occupying the house being a tenant of Custodian Evacuee Property and Settlement Department. Flee has urged that the evidence on record did not establish that the respondent No,I was owner of the House bearing No,646/2 and there was relationship of tenant and landlord in between the petitioner and the father of the respondent No,l. He has placed reliance on the case of Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs, (2008 SCM R 855).
14. It is evident from the pleadings of the parties that there is dispute in respect of title of the ownership of the house in question. No evidence whatsoever, showing the lease agreement of tenancy between the parties is available on the record and mere title of ownership on the basis of sale-deed executed by father of respondent No,1 pertaining to C.S. No,646/2 Ward N6.2 Jacobabad is having no substantial value particularly the said transfer has been cancelled upto the level of Board of Revenue. Dispute in respect of title is of such nature, which could not A be decided by the Rent Controller exercising special jurisdiction but the same requires determination by Civil Court of competent jurisdiction. The Rent Controller had limited jurisdiction in the proceedings could not decide the dispute in respect of ownership right of landlord and tenant. The petitioner is also found unable to clarify that the property in question is the same property which was let to him on rent by Evacuee and Settlement Department particularly respondent No,1 had claimed the same to be evacuee property as the property allotted to the respondent No,1 was C.S. No,646/1 and not C.S. No,646/2 Ward No,2 Jacobabad, as discussed supra.
15. From perusal of the record it transpires that Azizullah transferred the C.S. No,646/2 to his son Abdul Rasheed (respondent No,1) by registered sale-deed. His title cast doubts and clouds particularly the allotment issued by the Custodian Evacuee Property has been cancelled at the level of Board of Revenue. It is well-settled that vendor cannot pass on to the vendee anything better than he himself hold. Therefore, it is vendee who is to apply maximum care before going from a transaction of sale/purchase. His right/title being dependent upon the strength or weakness of, the title of the seller, he has to sail, swim or sink with the seller and to pursue him for any loss suffered, if he is ultimately loser. Reliance in this respect may be placed on the apex court ruling in Muhammad Shamim v. Mst. Nisar Fatima (2010 SCM R 18). In the case of Muhammad Iqbal and another v. Mukhtar Ahmad (2008 SCM R 855), Full Bench of honourable Supreme Court held that mutation confers no title and once mutation is challenged the party relying thereon is bound to revert to original transaction. Para No,6 of the judgment reads as under:---
6. Before entering into appreciation of evidence, we may recall that this Court on numerous occasions has categorically held that the mutation proceedings are not judicial proceedings and mutations do not at all happen to confer title. That, therefore, whenever the genuineness of any such mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction. Hakim Khan v. Nazeer Ahmed Lughmani 1992 SCM R 1832 can be referred to in this behalf. This Court in a recent judgment rendered in Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 has categorically declared that mutation confers no title and once a mutation is challenged, the party relying thereon is bound to revert to the original transaction and to prove such original transaction which resulted into the entry of attestation of any such mutation.
16. Vehement denial of relationship of tenant and landlord supported with documentary evidence is not warranting outright ejectment of the petitioner who categorically averred that the respondent No,1 is neither owner nor landlord of the premises, C.S. No,646/2 Ward No,2, Jacobabad therefore, eviction was not maintainable before the Rent Controller. Question of fact has been finally determined by the Rent Controller having no jurisdiction adjudicate the same relating to right of title. Rent Controller who had limited jurisdiction in the proceedings could not decide disputed question of law and facts involving ownership in respect of landlord and tenant and simultaneously the constitutional jurisdiction of this Court could be invoked, if it is shown that impugned order is perverse and suffers from illegality or irregularity and such jurisdiction may be exercised to interfere with concurrent findings passed by the Courts below. In the instant case, the petitioner invoked the constitutional jurisdiction of this Court had vehemently denied the ownership of respondent No,1 by producing documents and stated that if at all, respondent No,1 owned C.S. No,646/1 and not C.S. No,646/2 Ward No,2 Jacobabad as claimed by him, therefore, obligation to pay rent to respondent No,1 had been put to an end by way of documentary evidence. In such circumstances, parties to approach proper forum to resolve the issue involving non-existence of any proper title document relating to C.S. No,646/2 Word No,2 Jacobabad. Even otherwise all these aspects of the case have been ignored/overlooked and not seriously considered, by the both learned Courts below and the findings are based on non-reading of evidence including documentary. In the given case this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973 can entertain the petition as wrong and illegal conclusion was drawn by the Courts below and, are not based on facts and documentary evidence, as such the act would amount an error or omission.
17. In view of foregoing, the impugned orders are hereby suspended till determination of title of property in question. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.