' ZAPAR HUSSAIN M1RZA, J.-The dispute in this appeal relates to the ejectment of respondents, who are tenants, from House No, 3913 situate at Dabgari Gate, Peshawar city, in favour of the appellants who are the owners and landlords of the said house. Leave was granted in this case to examine whether the issue of personal requirement upon which the plea for the ejectment of the respondents was founded, was properly determined in the light of the circumstances appearing in the evidence and by application of the correct principles of law.
2. The facts leading to this appeal are that the house in dispute was originally an evacuee property and was transferred to the appellants (who are sister and brother) under the Settlement Scheme.
One Abdul Rashid, the predecessor-in-interest of the respondents being in occupation of the house, the appellants served him with the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, demanding the payment of rent at Rs, 20 per month in accordance with the latest assessment of the Excise and Taxation Department. As the original tenant failed to pay the rent demanded by the appellants, they instituted an application for his ejectment under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter to be referred to as "the Ordinance"). This application was based on the ground of non-payment of the rent, as well as on the ground that the appellants required the premises for their personal use. The learned Rent Controller, Peshawar, passed the order of ejectment of the original tenant, which was also upheld in appeal, with the result that the tenant preferred a Second Appeal in the High Court, which was partially accepted, but the order of ejectment was still maintained. The matter was then taken by both parties in separate appeals under the Letters Patent, which were disposed of by the Division Bench of the Peshawar High Court, Peshawar as per judgment dated 5-11-1971 whereby the appeal filed by the tenant (Abdul Rashid) was accepted and the order of eviction passed against him was set aside. We have been told that the issue of personal requirement of the premises was rejected in these proceedings on the ground that the six years protection period provided to the tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had not yet expired. The first round of litigation between the parties ended with this decision.
3. The second round of litigation between the parties, out of which the present appeal has arisen, commenced on 9-2-1973 when the appellants filed a fresh eviction application before the Rent Controller on the same two grounds. The learned Rent Controller after hearing the parties, allowed the application only on the ground of personal requirement. On the respondents' appeal, the learned District Judge, Peshawar, however, disagreed with the finding of the Rent Controller and held that the appellants were not entitled to the possession of the premises on the ground of personal requirement, even if their plea is justified, as the respondents had deposited rent much in excess of what was due, which had to be adjusted before the landlords could be entitled to enter into possession, He accordingly set aside the order of ejectment. The appellants thereupon sought to challenge the decision of the learned District Judge in Second Appeal before the Peshawar High Court, Peshawar, but their appeal was dismissed in limine by a learned Single Judge of that Court as per the impugned judgment dated 26-1-1976. Aggrieved by this judgment, the appellants have now come up in appeal before this Court.
4. Now the case of the appellants in their application for ejectment as regards their plea of bona fide personal requirement was, that Appellant No. 1 Mst. Saeeda Fatima required the house to accommodate herself and her family comprising of for children. In support of the case, she had entered in the witness-box to assert that she is a teacher in a girls school and has been living in Bungalow No. 1, Artillery Road, Peshawar Cantonment, with her brothers in one of the rooms of the house. To a suggestion made in the cross-examination, she denied that she had any share in the ownership of Bungalow No. 1, Artillery Road, in which she is at present living. As against this, as pointed out by the High Court one of the respondents appeared in evidence and gave a statement that the aforesaid property situate at Artillery Road, had been transferred to the brothers and sisters of the appellants, including Mst. Saeeda Fatima. Admittedly no documentary evidence was produced by either side on the question of the ownerships of the property at Artillery Road, having regard to this state of the evidence and the fact that conflicting findings were given by the Courts below, the learned Single Judge declined to interfere for reasons which maybes reproduced in his own words:- "It is a case of scanty evidence and the appellant on whom the burden of proof was placed has not cared to bring any other evidence on the record to support her claim. Her bare assertion that she does not own a share in the Artillery Road bungalow is not going to be of any avail to her, for if what was stated by her, was true, she could have produced the title-deeds of the bungalow. Her omission to produce the title-deed of the Artillery Road bungalow and any other supporting evidence disentitles her to a favourable finding, particularly when the burden to prove the issue was on her and the matter was such as was within her knowledge. On this view of the matter, therefore, I hesitate to interfere with the appreciation of evidence by the learned District Judge on this crucial point."
5. We have heard Mr. Sardar Khan, learned Advocate appearing for the appellants and Mr. Sardar Akhtar Ali, learned Advocate appearing for the respondents. We agree with the submissions made on behalf of the appellants that the learned Single Judge decided the question relating to the alleged ownership of the Artillery Road bungalow by the Appellant No. 1, by misconception of the true legal position. The allegation that the said appellant has a share in the ownership of the said property, having been denied by her, the burden of proof to affirmatively establish this fact lay on the respondents who asserted the positive and not on the appellants, for whom it was sufficient to deny the fact. In any case, at the hearing of this appeal, a certified copy of the, extract from the General Land register of the Peshawar Cantonment issued by the Military Estates Officer, Peshawar Circle, Peshawar, has been placed on the record which shown that the property is held by five co- owners and the name of Mst. Saeeda Fatima does not figure among these co-sharers. There is, therefore, no evidence on the record to support the assertions of the respondents that the house presently occupied by the Appellant No. 1 is owned by her,
6. The position on the record, accordingly, is that Appellant No. 1 is living in one room alongwith her for children by the courtesy of her brothers and sisters. It is now well-settled that the expression "another residential building suitable for his needs" occurring in section 13(3)(a)(i)(b) of the Ordinance .Refers to the blinding owned by the landlord, and, therefore, since the first appellant has no interest in the ownership of the bungalow in which she presently occupies one room, this accommodation is not relevant for the purposes of this case. In fact it appears to us that this allegation was frivolously made at the time of the evidence by the respondents, as no such plea was taken in their written statement.
7. So that as it may, Mr. Sardar Khan, learned counsel for the appellants pointed out another aspect of this matter which seems to have been lost sight of by. The High Court. Under section 13(3)(a)
(0(b) a landlord can obtain the possession of a residential building for his own occupation provided, inter alia, "he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated". Clearly, therefore, the other accommodation the occupation of which may deprive the landlord of his right to obtain possession under this provision, must be situated in the same "urban area". The expression "urban area" as defined by section 2(i) of the Ordinance means any area administered by a municipal corporation, a municipality, a municipal committee, a town committee or a notified area committee. On the plain reading of this definition, therefore, the area administered by a Cantonment Board will not be a part of the "urban area" within the meaning of the Ordinance.
Admittedly Bungalow No. 1 at Artillery Road is situated within the Peshawar Cantonment and hence cannot be said to be within the same "urban area". It, therefore, follows that the question of the suitability of this accommodation was not relevant for the purposes of the present proceedings which related to the ejectment from the house in dispute situated within municipal area of the city of Peshawar.
8. Unfortunately, both the District Judge as well as the High Court were mainly influenced in rejecting the claim of the appellants for possession of the premises on the ground of personal use, by the consideration that she has been living with her brothers in the aforesaid house within the Cantonment area for a long time. As discussed above, this was a wholly irrelevant consideration, for the two houses are not situated within the same urban area. We are also unable to see how the learned District Judge came to the conclusion that the appellants were not entitled to evict the respondent merely because amount in excess of the rent due and payable, was deposited a by the respondents in compliance with the orders of the Rent Controller, until the excess amount is adjusted. We have not been shown any provision of law or authority for this proposition.
9. Mr. Sardar Akhtar Ali, learned counsel for the respondents urge that the concurrent findings of the two Courts below are not liable to upset in appeal by this Court. However, as discussed above, the learned c District Judge and the High Court have both misread the evidence of record and proceeded upon considerations not justified in law, which has resulted in gross miscarriage of justice which cannot be left unrepressed.
10. In the result we allow this appeal and set aside the orders passed by the High Court and the District Judge. The result is that the order of the Rent Controller shall stand restored.