' The cause out of which this revision has arisen was commenced by the respondent by filing a suit against the petitioners,- for possession of a room, claiming it to be a part of house No, 1048/W-V1- H, Multan City, transferred to him by the Settlement Department. Before instituting this suit, the respondent had filed a petition before the Rent Controller for ejectment of petitioner No, 1 from the room in dispute. The latter, resisted the petition, denied the relationship of landlord and tenant and pleaded that the room formed part of property No, 187-W-VI-H, Multan City which belonged to him.
The learned Rent Controller, however, did not accept this contention and passed the ejectment order against the respondent. In appeal, the learned District Judge held that the relationship of landlord and tenant did not subsist between the parties. In his opinion it could not be ascertained that the room was part of whose property. He thus passed the order dated 31st July, 1970, accepting the petitioner's appeal and setting aside the ejectment order.
2, It appears that thereafter the respondent moved the Settlement Department for demarcation of the property. Accordingly, the Accountant of the Settlement Department alongwith the Settlement Inspector, inspected the spot and submitted his report dated 6th July, 1971 (Exh. P. 2) to the Deputy Settlement Commissioner, which was approved by him on 13th July, 1971. According to this report the room in dispute was found to be a part of the property transferred to the respondent. The petitioners challenged this order in revision before the Settlement Commissioner but could not succeed.
3. After having obtained the demarcation order from the Settlement Authorities, the respondent filed the instant suit in which, 'in addition to Abdur Rehman petitioner he impleaded his other three brothers, as party as they also claimed to be in possession of the property in dispute. The petitioners contested the suit, questioned the jurisdiction of the Civil Court in the matters and pleaded that room formed an integral part of the house transferred to them.
4. The case of the respondent was that after transfer of house No, 1043-W-VI-H, in his favour, he converted a room thereof into a shop and in September, 1962, leased it out to petitioner No, 1, at the monthly rent of Rs,
20. He produced in evidence copy of the plan of his house including the room in dispute (Exh. P. 1). Accountant's report dated 6th July, 1971 (Exh. P. 2) embodying the approval of the Deputy Settlement Commissioner, copy of the P T 0 (Exh. P. 3), copy of the PTD (Exh. P. 4), copy of the District Judge's order dated 31st July, 1970 (Exh. P. 5) and copy of Deputy Settlement Commissioner's order dated 19th February, 1974 (Exh. P. 6). He examined Ghulam Murtaza, P. W. 1, to prove the plan Exh. P.
1. The report Exh. P. 2 was proved by him through examination of Nazir Ahmad. Accountant of the Settlement Department P.W. 3 who was summoned with the relevant record. In addition to this he examined Abdus Saleem, as P.W. 2, and also appeared as his own witness. On the other hand, the petitioners, examined two witnesses, namely, Masoom Ali, D. W. 1 and Riaz Ahmed D. W.
2. Petitioner No, I also appeared in the witness box. a. Vv. 1 stated that the room in dispute formed part of house No, 187, whereas D W 2, deposed that the property in dispute never remained in possession of the respondent.
5. After appreciation of the evidence produced by the parties, the learned Civil Judge held that the room in dispute formed part of the respondent's house, He referred to the demarcation report (Exh.
P. 2). According to him, the Settlement Authority had the jurisdiction to demarcate the property. The submission made by the petitioners, to the contrary was thus repelled by him. The respondent's suit was decreed in his favour on 3rd February, 1976.
' The petitioners filed an appeal against the judgment and decree of the learned trial Court, which was rejected by the learned Additional District Judge on 13th November, 1977. He maintained that the respondent's ownership of the room was established by documentary and oral evidence. He also referred to the report Exh. P.
2. The dismissal of the petitioner's revision against the demarcation order of the Deputy Settlement Commissioner, also weighed with him. In his opinion the demarcation conducted by the Settlement authority was based on facts.
6. The petitioners have now come up in revision.
7. The first submission of the petitioners' learned counsel was that after having obtained clearance from the Settlement Authority that the room in dispute belonged to him the respondent should have filed a petition before the Rent Controller for ejectment of the petitioners. He argued that by operation of law relationship of landlord and tenant, came into existence between the parties, and therefore, the Civil Court lacked jurisdiction.
' I am unable to accept this submission of the petitioner's learned counsel. In para No, 2 of the plaint, the respondent specifically asserted that the room in dispute formed part of his property ; it was leased out to petitioner No, 1 by him in September, 1962. In their written statement the petitioners refuted the respondent's claim of ownership and tenancy. They unequivocally asserted that the room belonged to them. Petitioner No, 1 while appearing as his own witness reiterated the stand taken in the written statement. It is quite clear to me that the petitioners in their pleadings or at any stage during the trial, never raised the plea that they occupied the room as tenants under the respondent. On the other hand they denied his title. They cannot be permitted to take up inconsistent position and to rest their case on a ground which was never set down by them in their pleadings.
It has never been the case of the petitioners that they became statutory tenant under the respondent. Even otherwise after the repeal of the Displaced Persons (Compensation & Reh.) Act, this argument is of no avail to them. Primarily, the averments made in the plaint are to be considered for determining the question of jurisdiction. On factual plane these averments were also found to be correct by the learned two Courts below. I am clearly of the view that the respondent's suit was competent and the findings of the learned lower Courts in this respect are not open to objection.
8. It was next argued that the findings of the two Courts below that the respondent was the owner of the property in dispute could not be sustained. It was urged that after the issue of PTD the Settlement authority had no jurisdiction to demarcate the property, and that therefore, their orders Exhs. P. 2 and P. 6, should not have been admitted is evidence and relied upon by the learned lower Courts. It may be observed that the respondent was issued PTD (Exh. P. 4) in respect of property No, 1048-W-VI-H, but there is nothing on the file to reveal that Property No, 187-W-VI-H, was also permanently settled on the petitioners or for that matter on their father from whom they derived their title. The demarcation made vide Exh. P. 2, had the effect of declaring that the room in dispute did not form part of the petitioners' House No, 187 which was not shown to have ceased to be part of the compensation pool. It is true that the Settlement authorities were not competent to demarcate the property after the issue of PTD. But it is discernible from Exh. P. 2 that houses of both the parties were demarcated. The petitioners filed revision petition against the demarcation order which was rejected by the Settlement Commissioner. In these circumstances it cannot be said that the demarcation is not binding on the petitioners. They also did not object, at the proper stage, to the admission of Exh. P. 2 & P. 6 in evidence.
9. It may be added that Nazir Ahmad, Accountant (P. W. 3), appeared in the Court with the relevant Settlement record and the petitioners had the opportunity to cross-examine him. In addition to this report and the Deputy Settlement Commissioner's order (Exh. P. 2 and Exh. P. 6, respectively), the respondent led some other documentary and oral evidence. Abdus Salam P. W. 2, stated that the respondent converted a room of his house into a shop and leased it out to Abdur Rehman, petitioner. The building plan of house No, 1048-W-VI-H, proved by the testimony of Ghulam Murtaza, P. W. 1 indicates that the room in dispute apparently falls within the building line of the respondent's house. The evidence led by the respondent was believed and that of the petitioners discarded by the learned two Courts below. A concurrent finding of fact has been returned against the petitioners by both the learned lower Courts that the disputed room forms part of the house transferred to the respondent. This is a finding of fact. The petitioners have failed to mike out a case for interference with this finding in exercise of revisional jurisdiction of this Court. Substantial justice has been ,done between the parties and orders of the learned Courts below do not suffer from any illegality.
10. For all these reasons I do not find any merit in this revision which is hereby dismissed with costs.