' SHEZADA MAZHAR, J. --- This appeal under Section 24 of the Cantonment Rent Restriction Act, 1963 has been filed against the order dated 15.03.2010 whereby the learned Rent Controller while accepting the ejectment petition filed by the respondent, directed the appellant to hand over the possession of the demised premises within 90 days.
2. Facts leading to the present appeal are that respondent filed an ejectment petition under Section 17 of the Cantonment Rent Restriction Act 1963 seeking eviction of the appellant from a portion of Ayub National Park approximately measuring 100 Kanals bearing khasra No, 699 to 705, 730 to 740, 706, 707, 721 to 723 (part) 746, 746/1 to 751 (part) to 744, 685 to 691, 694 to 697, 676 to 678 (part), 683 (part), 714 on the ground of default in payment of rent as well as personal need (for establishing thematic Park of International standard on whole of the land of Ayub National Park).
3. The appellant filed reply to the ejectment petition and on the basis of pleadings of the parties, learned Rent Controller framed the following issues:--- ISSUES
(1) Whether the petitioner require the suit property for his personal need? OPP
(2) Whether the respondent is a rent defaulter? OPP
(3) Whether this Tribunal has jurisdiction to entertain and try this petition? OPR
(4) Whether the ejectment petition is not maintainable in view of preliminary objections? OPP
(5) Relief.
4. Parties led their respective evidence and the learned Rent Controller vide impugned order dated 15.03.2010 accepted the ejectment petition and directed the respondent to hand over the vacant possession of the premises to the respondent, hence this appeal.
5. Learned counsel for the appellant submits that the land measuring 100-Kanals was leased out to the appellant on 01.06.1983 as open land for establishing recreational facility (play Land) by the Cantonment Board, Rawalpindi. Further submits that the land is basically owned by the Provincial Government and only management of the property was transferred to the Central Government.
The Central Government transferred the management rights to Cantonment Board, Rawalpindi.
Learned counsel for the appellant further submits that, the management rights were transferred to respondent on the basis of letter dated 21.07.2000 issued by the then President of Pakistan. It is also submitted that the said letter was set aside by this Court in W.P. Nos. 1822/96, 2440/2003 and 2196/2000 vide order dated 15.04.2008. Further the appellant were lessee of the land and not tenant and respondents were lessors and not landlord and therefore, the ejectment petition under Section 17 of the Cantonment Rent Restriction Act, 1963 was not maintainable. Learned counsel further stated that earlier an ejectment petition was filed by the Cantonment Board Rawalpindi, wherein during pendency the respondent filed application to become party, however, during pendency of said ejectment petition filed the present ejectment petition wherein ejectment order was passed by the Rent Controller. It is next submitted that Cantonment Rent Restriction Act, 1963 deals with building and the present lease is of open land therefore, application under Section 17 was not maintainable. In this regard learned counsel has relied upon the definition of building as specified in Section 2(aa) of the Cantonment Rent Restricting Act, 1963. Learned counsel further submits that under Section 3(b) also ejectment petition was not maintainable as Army Heritage Foundation is a local authority. Learned counsel also relies upon Section 17(4), 3rd proviso to state that ejectment petition is not maintainable. Lastly learned counsel submits that even under the lease agreement dated 01.06.1983 clause (xxiv) the respondent has failed to give notice of six (06) months therefore, ejectment petition cannot be accepted by the Rent Tribunal and the order dated 15.03.2010 is liable to be set aside.
6. On the other hand, learned counsel for the respondent has supported the order of the Rent Tribunal by submitting that property in question was under the management of Central Government and in the year 1959 the same was given to the Cantonment Board for management purpose and it was under this authority Cantonment Board entered into lease agreement with the appellant. Learned counsel further pointed out that the land in question alongwith the land of Ayub National Park was leased out to the respondent vide registered lease deeds dated 26.04.2004.
Learned counsel for the respondent further submits that respondent has placed on record Ex.P4 and Ex.P5 whereby the appellant was informed that lease will not be renewed on its expiry and that appellant shall hand over the vacant possession of the land within 15 days.
' Further pointed out that in earlier ejectment petition filed by Cantonment Board Rawalpindi an order for the payment of rent was passed which was not complied with therefore, the defence of the appellant was struck off on 06.03.2002 and eviction order was passed which, was challenged before this Court and this Court vide order dated 16.02.2004 remanded the case. It was on the remand from this Court when application was filed by the respondent to become party. However, during pendency the ejectment petition was filed by present respondent on two grounds i,e, default in payment of rent and personal need. The petition was accepted on both grounds vide order dated 15.03.2010. It is submitted that appellant has not denied the relationship of tenant and landlord. It is next argued that the arguments raised by the appellant cannot be raised at this stage as no such objection was made in the reply to ejectment petition and submits that appeal be dismissed.
7. I have heard the learned counsel for the parties and perused the record.
8. The contention of the learned counsel for the appellant that the appellant was lessee and the Cantonment Board, Rawalpindi was lessor, therefore the Cantonment Rent Restriction Act, 1963 does not apply to the case in hand is misconceived. Under Section 2(aa) the word building has been defined as under:- "building means any building or part of a building, whether residential or not, together with all fittings and fixtures therein, if any, and Includes any gardens grounds, garages and outhouses attached or appurtenant to such building or part, and vacant land, but does not include any place of religious worship;"
' The words "vacant land" covers the open land leased out to the appellant. Similarly landlord has been defined in Section 2(g) which is reproduced as under:--- "landlord means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other persons, or as a trustee, guardian or receiver and includes a tenant who, being authorized under the terms of his lease so to do, sublets the building and every other person for the time being deriving title from the landlords;"
' The bare reading of above definitions of building and landlord it is clear that respondent had the right to file the execution petition being authorized representative of the landlord.
9. Even otherwise the respondent had taken over the management of the disputed land alongwith the Ayub National Park under letter dated 21.07.2000 and Ex.P.3 and later on lease deeds were also executed in its favour by the competent authority on 26.04.2004 (Ex.P-11 and Ex.P-12). The contention of learned counsel for the appellant that "lease" is different from "tenancy" is also misconceived. Lease is defined under Section 105 of the Transfer of Property Act, 1882 which is reproduced as under:- "A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the iransfer on such terms."
10. Bare reading of the above, reveals that lease is partial transfer of a right of enjoyment of property for certain time period. The reading of the lease agreement Ex.P-10 reveals that appellant was given right of enjoyment of the land for a specified period, therefore, the objection is not sustainable. Further the objections now raised by the learned counsel for the appellant are missing from the reply filed before the Rent Tribunal and therefore cannot be considered at this stage.
Furthermore, the appellant has not denied the relationship of tenant and landlord.
11. Perusal of record also reveals that Cantonment Board through Ex.P-4 on 09.09.1997 informed the appellant to handover the possession of the land as they are not intend to renew the lease. Even the decision of Cantonment Board in shape of board resolution dated 27.12.1992 (Ex.P5) is available on record of the case. Perusal of record also reveals that appellant had the knowledge of handing over the management of the disputed land in favour of respondent as they themselves wrote letter dated 20.12.2000 (Ex.P-7) to the Cantonment Board for clarification, however despite the information of change of management, the appellant chose not to pay the rent to respondent and kept on depositing the rent in the name of Cantonment Board. This wilful act made the appellant defaulter in payment of rent.
12. Perusal of evidence available on record establishes not only default but also the personal bona fide need of the respondent. The appellant neither could shatter the evidence produced by the respondent nor placed on record anything which contradict the submission of respondent with regard to personal bona fide need. In absence of the above the respondent has been able to establish personal need. The Hon'ble Supreme Court of Pakistan in 1997 SCM R 1062 Juma Sher v.
Sabz Ali has held as under:- The appellant in his evidence clearly stated that he required the premises for his personal and bona fide need and that he is presently not occupying any other shop or premises where he could do the business in the cantonment area. He was subjected to a very lengthy cross- examination by the counsel for the respondent but his evidence could not be shaken. Nothing was brought on record to show that the appellant was in possession of any other property in the cantonment area suitable for his needs and requirements. It has been held this Court in the case Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178), that even the sole testimony of the landlord is sufficient to establish the personal and bona fide requirement of landlord.
' The appellant being defaulter cannot claim benefit of Section 3 of the Cantonment Rent Restriction Act, 1963. Further as earlier mentioned, these objections have never been raised by the appellant before the learned Rent Tribunal, therefore, the appellant cannot be allowed to raise the same at this stage. Learned Rent Tribunal has rightly held that the appellant is defaulter in the payment of rent.
13. In this view of the matter, the present appeal has no merits and the same is hereby dismissed with no order as to costs.