The petitioner, which is a registered firm, had' taken on lease Property No. S-55-R-2/2, Circular Road, Lahore, from respondent No. 1 on a monthly rental of Rs.600, under lease agreement Annex `A'. According to the learned counsel for the respondents the petitioner went on paying rent regularly in the past but made default in payment from January, 1977. Respondents Nos. 1 and 2, therefore, applied for ejectment of the petitioner from the premises in dispute before the Rent Controller. It was stated in the application that the rent being paid was Rs.800 p. m.
2. The petitioner in its reply raised a number of preliminary objections such as:-
(a) that the property in dispute is evacuee trust property and, there--fore, the West Pakistan Urban Rent Restriction Ordinance does not apply to it;
(b) that the respondents have lost their status as landlords in view of the declaration that the property is evacuee trust property;
(c) that the petition has not been filed against the joint tenants;
(d) that as the original agreement of tenancy was executed by Muhammad Idrees as the sole owner, the joint application by him with Mst. Zohra Khatoon suffers from misjoinder of parties.
The petitioner also denied that rent had been fixed at Rs.800 p. m. According to it the rent was only Rs.200 p. m. All other contents of the application were denied.
3. The Rent Controller considered the pleadings of the parties and vide his order dated 2nd September, 1977, directed the petitioner to deposit arrears from January, 1975 to October, 1977, at the rate of Rs.800 p. m. Till 14th November, 1977. The future rent was also directed to be paid before the 15th of every month till the decision of the ejectment application. It is against this order that the present petition has been filed.
4. It is contended by the learned counsel for the petitioner that as the Deputy Custodian vide his order dated 29th May, 1976, came to the conclusion that the property in question belonged to Sitla Mandar, Lahore, and was an evacuee trust property, the Rent Controller had no jurisdiction to decide the matter and acted unlawfully in passing the impugned order. It is further argued that the Rent Controller could not have proceeded to direct the petitioner to pay rent without disposing of the preliminary objection.
5. The learned, counsel for the respondents controverted the stand taken by the petitioner and submitted that according to the rent note the respondents had raised construction on the land in question and they were entitled to receive rent for it. He further submitted that the petitioner had been paying rent from 1966 to 1977 and, therefore, it did not lie in his mouth to contest the very status of the respondents as landlords. Reliance was placed on Kalimullah v. Amin Hazin (1976 SCMR 77).
6. It is an admitted fact that the petitioner had executed the rent note according to which the rent of the premises was Rs.200-1-Rs.400, i. e. Rs.601 p. m. In a subsequent letter the petitioner admitted that it was paying Rs.800 p. m. And not Rs.600. In this view of the matter, I do not thin that the Rent Controller had committed any illegality in fixing Rs.80 as rent. The petitioner, however, can challenge the correctness of this tentative rent in the proceedings if that is its case.
7. As regards the decision on the preliminary objections, I do not find that the same would, in any way, demolish the order of the Rent Controller. The tenancy in question had been created in 1966.
According to the rent deed, prima facie some construction had been raised by the respondents on the land in question. In this view of the matter, the petitioner, who had been occupying the same as a tenant and paying rent, cannot be heard to say, after about 10 years, that the Rent Controller should have decided the question of title before passing the impugned order. The `landlord' as defined in the West Pakistan Urban Rent Restriction Ordinance is the person who is for the time being entitled to receive rent. He may not necessarily be an owner as very clearly stated in the definition. Admittedly the respondents had not only been receiving rent in past but were entitled to do so under the rent deed. The Rent Controller, therefore, rightly refused to permit the petitioner to postpone its liability.
8. The contention of the learned counsel that the Deputy Custodian has declared the property, as an evacuee trust property is also not valid. The Deputy Custodian could, if at all at this stage, declare that the property is evacuee trust property. Reliance in this respect is placed on Devachand Muljimal v. Deputy Settlement & Rehabilitation Commissioner (PLD1965SC356). It will be of advantage to reproduce below the relevant observations of their Lordships, which read as under:- "We have come to the conclusion, therefore, that in the present case by reason of the property having been acquired by a Notification issued under section 3 of the Act of 1958, the Custodian authorities ceased to have any jurisdiction in respect of said property. Furthermore, even otherwise the Custodian authorities would have, in our opinion, had any jurisdiction to decide this particular question under the Act of 1957. Again, under the Act of 1958, the Settlement Authorities do not also appear to have acquired any jurisdiction to decide this question. The appellant must, therefore, of necessity, have recourse to the civil Courts to have the character of this trust adjudicated upon after the taking of evidence, particularly, since the transferee --respondent is also challenging the validity of the trust itself on the ground that a trust for Dharam simpliciter is void under the Hindu law.
9. After the above judgment of the Supreme Court the law was amended and power to decide the question, whether the property was an evacuee trust property or not, was conferred on the Chief Settlement Commissioner with an appeal to the High Court, under sections 4(3) and 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act as amended by Ordinance XIII of 1954.
On the repeal of the Displaced Persons (Compensa--tion and Rehabilitation) Act, the Legislature enacted another law i.e. Evacuee Trust Properties (Management and Disposal) Act, 1975. Under section 8 of it an exclusive jurisdiction to decide such a question has been conferred on the Chairman, Evacuee Trust Property Board with a power of revision to the Federal Government under section 17 thereof. According to section 31 the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
10. The case in question had been referred to the Deputy Custodian on 15th July, 1964. The decision of the Deputy Custodian was given on 29th May, 1976. The Evacuee Trust Property (Management of Disposal) Act had been enforced with effect from 1st July, 1974. Thus the question whether the property in dispute was an evacuee trust property could only be decided by the Chairman. The change of forum is a procedural matter where no vested rights are affected as held in Adnan Afzal v. Capt. Sher Afzal (PLD1969SC187). The same view was taken in Nabi Ahmad v. Home Secretary (PLD1969SC599), and is now well-settled. The Custodian could thus, if at all he had such a jurisdic-- tion, decide that the property was evacuee but he could not decide that it was an evacuee trust property. The declaration of the Deputy Custodian to that extent was, therefore, inoperative. The petitioner, if he was so serious in the cause, should have taken the matter before the Chairman, Evacuee Trust Property Board for a decision of that point.
11. Further, the result of the case before me is also directly influenced by the judgment of the Supreme Court in Kalimullah v. Amin Hazin. The property involved in that case was also an evacuee property but the landlord claimed to be a lessee from a Muslim owner who had purchased the same vide registered sale-deed dated 3rd November, 1947. The tenant raised the plea that the property being evacuee the Rent Controller had no jurisdiction. The Rent Controller, as well as the learned Additional District .Fudge did not agree with him. The High Court also dismissed his appeal.
A petition for special leave to appeal also failed with the following observa--tions:- "...The High Court took the view that since the petitioner had accepted the tenancy under the respondent No. 1, he was estopped, under section 116 of the Evidence Act, from challenging the title of his landlord, whatever the status of the property might be.
The petitioner now seeks special leave to appeal. Learned counsel appearing in support of this petition has urged that the High Court was wrong in taking the view that the petitioner was estopped from raising the question of jurisdiction of the Rent Controller. We are unable to agree. It seems to us that the High Court has rightly held that once a person has accepted another as his landlord an entered into possession of the premises as such tenant, he cannot b allowed to challenge the title of his landlord."
12. The facts of the present case are quite similar to the case cited above. The petitioner thus could not challenge the title of the landlords; whatever the status of the property.
There is thus no merit in this petition and the same is dismissed with costs.