' Writ petition arises out of an action brought by Muhammad Shafiq and Muhammad Arshad for eviction of the Fazal Din writ petitioner in the Court of Rent Controller, Lahore on grounds:- (1)
Default in payment of rent from 18-10-1979 to 17-10-1980, (2) Reconstruction of a house in accordance with the plan approved by the Lahore Municipal Corporation, (3) Damage to the property. Fazal Din was described to be in possession of plot measuring three and a half Marlas alongwith Katcha/Pakka structure, Khasra No.2794-min (Plot No.52). In the written statement Fazal Din denied relationship of landlord and tenant and pleaded that, he, on migration from East Punjab, occupied plot measuring 5 Marlas Khasra No.2793 and after raising a construction thereon, was in its occupation since then. His son Nazir had already applied for transfer of the aforenoted plot under Scheme No.VIII. Rent Control in the denial of the relationship, framed following preliminary issue on 26-1-1981:-
(1) Whether the relationship of landlord and tenant exists between the parties?
(2) Relief.
' Parties produced evidence in support of the aforenoted preliminary issue. Rent Controller vide order dated 29-7-1982 dismissed ejectment petition after finding preliminary issue in the negative.
Appeal was filed by the aggrieved party. This appeal was allowed by learned Additional District Judge on 22-1-1983 and the case was remanded to the Rent Controller for its decision in the light of the observations made in the remand order. Grounds which prompted remand, are "I do not agree with the contention of the learned counsel of the respondent firstly, because in another rent appeal filed by the same appellant against one Barkat Ali (Misc. Civil Appeal No.157/82) relating to the same Khasra nubmer as in this appeal, I have today accepted that appeal and remanded that case to the learned Rent Controller. Secondly, the impugned order is not as clear about the actual holding/demarcation in the Khasra in dispute as the learned counsel for the respondents thinks. To my ;mind, this matter of demarcation clearly showing the ownership/possession of the parties in the disputed Khasra should be settled clearly and finally. For the foregoing reasons, I accept this appeal and remand the case to the learned Rent Controller who shall give his finding afresh on the issues framed in the light of the demarcation of the Khasra in dispute to be made by the Settlement Authority or in case of any legal embargo, by the Tehsildar (Revenue), Lahore."
' In post remand, learned Rent Controller on 2-2-1983 recorded order which reads:-[URDU TEXT] Sd/- AKHTAR HUSSAIN ZAHID, Civil Judge, Lahore.
' On strength of the statements of the parties, on 8-6-1983, petitioners in the ejectment petition were allowed to place on record demarcation report of a retired Naib-Tehsildar conducted earlier privately at the instance of Muhammad Shafiq etc. Statement of Nawazish Ali (P.W.5) retired Naib- Tehsildar was recorded in support of the demarcation made by him. The case was then adjourned for evidence of Fazal Din, to produce Tehsildar Lahore. On 23-1-1984 counsel for Fazal Din made statement that the Tehsildar would not be produced though the Revenue Officer was then in attendance. Rent Controller, on examination, of parol evidence and documents placed on record, this time, found in favour of Muhammad Shafiq etc. and directed ejectment of Fazal Din from the premises in his occupation vide order dated 19-2-1984. Fazal Din did not succeed in appeal which was dismissed on 19-5-1984 by the learned Additional District Judge, Lahore. Constitutional jurisdiction, in this background, has been invoked by unsuccessful Fazal Din with prayer that the impugned orders be set aside and declared to have been made without lawful authority.
2. Parties have been heard and record has also been gone through.
3. Following points were raised on behalf of the petitioner:-
(a) that in terms of remand order, Rent Controller was obligated to have thb property demarcated either through Settlement Department or in the alternative by Tehsildar (Revenue) Lahore.
Demarcation report by Nawazish Ali retired Naib-Tehsildar cannot be made part of the record and relied upon on the ground that demarcation was made in absence of Fazal Din occupant and Nazir Ahmad transferee of the plot;
(b) Property in occupation of Fazal Din has been constructed by him on plot measuring 2 Marlas 138 Sq. Ft. of land transferred in favour of his son Nazir vide Exh.R.W.3/1 Khasra No.2793 adjacent to.
Khasra No.2794 claimed to be in ownership of Muhammad Shafiq and Muhammad Irshad;
(c) Writ petitioner was duped and defrauded in putting his thumb impressions on powers-of- attorney containing admission of tenancy and the alleged admission contained therein, cannot be made basis of holding tenancy proved.
(d) Petitioner purchased plot of land measuring ten Marlas (Khasra No.2794) with structures standing thereon from Mst. Zubaida Begum vide registered sale-deed dated 18-10-1979 Exh.P.W.3/2.
Sale-deed contained recital that possession had been delivered to the vendees. It did not make any reference to the property in occupation of Fazal Din. House purchased from Mst. Zubaida Begum was demolished and was later reconstructed in accordance with approved building plan.
Plan also did not show that any portion of the property was in possession of Fazal Din. There is no evidence to show who constructed the portion in possession of Fazal Din. Mst. Zubaida Begum has not appeared to prove tenancy. Ejectment petition does not indicate it to be either a case of statutory or contractual tenancy. In terms of the contentions raised, learned counsel stated that the Courts below have by illegal exercise of jurisdiction in the absence of any evidence supporting tenancy have found Fazal Din to be a tenant and ordered his eviction. The property in dispute vested in Muhammad Nazir his son on whose behalf he was in possession.
4. Learned counsel for the respondents, in reply, argued that the learned Rent Controller rightly relied upon the demarcation report of Nawazish Ali retired Naib-Tehsildar which clearly showed that portion in possession of Fazal Din formed part and parcel of Khasra No.2794 purchased by the respondents. Admission of tenancy found in powers of-attorney thumb-marked by Fazal Din was a piece of strong evidence acknowledging his status as tenant holding under the respondents. He also submitted that Muhammad Nazir never appeared in Court to claim ownership of the plot in dispute.
5. Oral evidence adduced in support of tenancy is not very helpful in resolving the controversy.
There is not an iota of evidence on the side of the respondents that the construction present on plot in occupation of Fazal Din was raised by them or by any of their predecessor-in-interest. On the other hand, Fazal Din led evidence that construction had been raised by him and that he was in possession thereof, since soon after partition. Powers-of-attorney etc. produced by the owners/landlords did not inspire confidence for placing any reliance upon them. There is no convincing evidence that Fazal Din ever acknowledged Muhammad Shafiq etc. or Mst. Zubaida as his landlord or ever paid any rent in token of acceptance of his status as tenant. It was stated by learned counsel for the writ petitioner that respondent's house was surrounded by a boundary wall and the portion in dispute lay outside the boundary. This was not denied by the opposite party.
Nawazish Ali retired Naib-Tehsildar (P.W.5) in his statement clearly admitted that he had not issued any notice to Fazal Din. Fazal Din denied his presence at the spot at the time of the alleged demarcation. It was admitted that adjoining field numbers were not measured nor field No. 2793. Demarcation report was, therefore, no evidence against Fazal Din petitioner. Report on closer examination did not fulfil requirements laid down in the Rules for regulating demarcation proceedings. Non-appearance of Nazir was explained on the ground of his being abroad. When the entire evidence is looked in its true perspective it clearly presents a title dispute between the parties.
Petitioners in ejectment petition have not succeeded to prove relationship of landlord and tenant beyond dispute. In the background of the ejectment petition, lies undoubtedly a dispute, whether portion in occupation of Fazal Din was part of field No.2794 or that it was field No. 2793. This dispute, cannot be appropriately resolved by Courts under provisions of the Rent Ordinance, where the scope of enquiry was summary and limited. Respondents are not without a remedy. In this view, civil suit provides more appropriate and effective remedy. Question then is who should go to the civil Court. Obviously, Muhammad Shafiq and Muhammad Arshad who have to prove their title to the property in possession of Fazal Din. I stand fortified in the view taken by me by a reference to a decision of the august Supreme Court reported in 1983 SCMR 1064.
6. In the result, writ petition is allowed. Impugned orders are set aside and declared to be without lawful authority. Parties, in the circumstances of this case, are directed to bear their own costs.