1. ' SHAFIUR RAHMAN, .J.--The three petitioners who are occupants of a property No, 169/170 in Ward No, 77 Alipur District Muzaffargarh, seek leave to appeal against the judgment of the Lahore High Court dated 27th of November, 1983 whereby their constitutional petition challenging an order of eviction passed by the Rent Controller on 1-3-1981 and affirmed by the District Judge on 22-12-1981 was dismissed.
2. ' Muhammad Sharif, respondent No, 3, as the transferee-landlord of the premises sought eviction of the petitioners on the ground of default in the payment of rent, damage to the property and bona fide personal need for its reconstruction. Nisar Ahmad petitioner denied the relationship of landlord and tenant between the petitioners and Sharif and claimed that Mst. Ramzan, the widow of Faqir Muhammad, a brother of co-transferee of Muhammad Sharif had by will dated 8-1-1977 transferred her interest in it to him and he was in possession as a co-sharer of the property. There was also another controversy raised, that is, whether the property itself was a shop or a house. The landlord-applicant claimed it to be a shop while the petitioners claimed it to be a house. The grounds of default in the payment of rent, personal need etc. Were all denied by the petitioners mainly on the ground that Nisar Ahmad petitioner was a co-sharer of the property and not accountable or evictable as a tenant. 5 issues were framed by the Rent Controller and evidence was invited and examined. The Rent Controller allowed the application of the landlord Muhammad Sharif holding that it was a shop of which the petitioners were the tenants. The will made in Nisar's favour was of no avail to them for various reasons including that it was a death-bed transaction.
3. Finding all the issues in favour of the landlord, the eviction of the petitioners was ordered.
4. ' On appeal, the District Judge affirmed the findings and maintained the order of ejectment of the petitioners.
5. ' A constitutional petition was then filed and it was contended that the question whether Nisar petitioner had become a co-sharer on the basis of a will executed by Mst. Ramzan, widow of Faqir Muhammad had not been decided correctly or competently as it was a matter to be decided in Courts of plenary jurisdiction and not by the Rent Controller. The High Court found that a question of fact namely the existence of relationship of landlord and tenant was required to he decided and the Rent Controller had the jurisdiction to decide it and had decided it after inviting evidence of both the parties and as such it was not amenable to interference in the constitutional jurisdiction.
6. ' The learned counsel for the petitioners has contended that the question of title derived under the will was held by the District Judge to be a matter which could be more competently decided in a civil Court than before the Rent Controller and scope should have been left for such a decision.
7. Besides, none of the Tribunals, that is, the Rent Controller or the appellate authority took into consideration the fact that Karimuddin and Islamuddin real brothers of Mst. Ramzan who were her sole heirs had appeared as R. W. 2 and R. W. 3 and had submitted to the will made by their sister and conceded in favour of Nisar Ahmad petitioner.
8. We find that the decision given by the Rent Controller and the first appellate authority on the question whether the relationship of landlord and tenant existed between the parties or not was within their jurisdiction and a finding had been recorded after appraising the evidence which had come on the record. To that extent such a finding was not open to scrutiny and reversal in constitutional jurisdiction. However, as the petitioner Nisar Ahmad claimed under a will the more appropriate course as indicated by us in Rahmat Ullah v. Ali Muhammad and another (1), would have been to leave an opportunity open for him to go and establish his claim in Courts of plenary jurisdiction. Except for allowing such an opportunity to the petitioners which we hereby do, we find no merit in this petition for leave to appeal which is hereby dismissed. {{FOOT NOTE}}
(1) 1983 SCM R 1064 {{FOOT NOTE}}