' Evacuee property bearing Survey No.B-1-22-S-2 shown in Settlement Record as 1/1596-97 Puran Nagar, Sialkot City owned by Mr.C.Rai, Bar-at-Law, now evacuee was auctioned purchased by Qazi Mairaj Din. Auction was held on 24-11-1970 and approved on 26-1-1971. Permanent Transfer Deed was issued on 31-5-1971 in favour of Mairaj Din. Transferee instituted an ejectment petition for eviction of Muhammad Sharif in occupation of the portion of the above-noted property, in the Court of Rent Controller, Sialkot on the grounds of (i) default in payment of rent, (ii) damage to the property, (iii) locking the premises for a period of more than four months without reasonable cause. It was stated in the eviction petition that responent Haii Muhammad Sharif was a statutory tenant at monthly rental of Rs.60 per mensem. Occupant resisted the ejectment petition. He filed written statement. It was stated in the written statement that property in dispute in the shape of a shed belonged to Central Government and was in his possession alongwith his brother Muhammad Latif since before the creation of the State of Pakistan. This property was transferred in favour of Siraj Din vide Mutation No.4350 who alienated the same to Muhammad Hussain vide Mutation No.4351. Respondent and his brother purchased the property vide Registered Sale Deed dated 8-9-1981 for a sum of Rs.80,000. In this background the relationship of landlord and tenant asserted in the ejectment pdtition was denied in the written statement. Payment of rent in the light of the .denial of the relationship was also not pleaded. Rent 'Controller framed the following preliminary issues:- ISSUES
1. Whether the relationship of landlord and tenant exists between the Parties? O.P.A..
' Parties produced the necessary evidence. Mairaj Din appeared as A.W.2 and product Yaqoob All in his support as A.W.1. Copy of Assessme nt, A-2, Permanent Transfer Deed A-1 were also tendered in evidence to support the abovenoted preliminary issue. On the other hand, the occupant Muhammad Sharif himself appeared and produced one Abdul "- ' as his witness. Copy of the sale,deed was also placed on record.
4. Rent Controller found preliminary issue in favour of Mairaj Din and after so finding proceeded to pass forthwith ejectment order without further inquiry into default etc. vide order dated 18-4-1983.
Respondent appealed. Learned District Judge, Sialkot reversed the finding of Rent Controller on preliminary issue and dismissed the ejectment petition holding that the necessary relationship was not proved to exist between the parties. Learned District Judge, in order, passed on appeal observed:- "8. It shall be noticed that in the ejectment petition, the petitioner respondent nowhere disclosed the time and the day, since when the appellant was in possession of the disputed premises. Rather, he simply alleged therein that the respondent (appellant) was a legal tenant of the disputed premises under him on the payment of monthly rent of Rs.60. At the trial, Yaqoob Ali (A.W.1) asserted in his cross-examination that the respondent (appellant) was in possession of the disputed rooms since the independence. Nevertheless, the petitioner respondent as his own witness categorically repudiated the suggestion to him that the respondent/appellant was in possession of the disputed premises since independence. In his examination-in-chief he clearly deposed that the respondent appellant was in possession of the disputed room for the last 7/8/10 years and before the issue of P.T.D. in his favour. Accordingly, it follows that the petitioner respondent was never definite in his stand about the time and the period when the respondent appellant came into possession of the disputed premises. If his clear assertion to the effect that the respondent appellant came into possession of the disputed premises 7/8/10 years back, is deemed to be correct, then the appellant would be proved 'to have come into possession of the disputed premises sometime in the year 1972. There is no denying the fact that the P.T.D. Exh.A.I was issued in favour of the petitioner respondent on 31-5-1971. It clearly means that according to the showing of the petitioner respondent, the appellant came into possession of the disputed premises after the issue' of P.T.D. Exh.A.1. In this way, the claim of the petitioner respondent that the appellant was his tenant of the disputed premises by operation of law could not be held to have been established.
9. In the order under appeal,the learned Rent Controller and the learned counsel for the petitioner during the arguments before this Court today, endeavoured to make much capital out of the assertions of the appellant and his witness Abdul Majid .R.W.1 that the appellant was in possession of the disputed premises since the time of independence of the country. Nonetheless, they conveniently. forgot to note that the stand of the appellant was that prior to the sale of the disputed premises in his favour by one Muhammad Hussain allottee thereof, he and his father had been in possession thereof as Muzareh. The appellant in support of his claim of ownership of the disputed premises placed on record the copy of the sale-deed dated 8-9-1981 purported to have been executed by Muhammad Hussain in his favour. In this way, he emphatically refuted the claim of the .petitioner respondent that he was his tenant in occupation of the disputed premises. It is noteworthy that in reply to the last question put to the petitioner respondent (A.W.2) in the cross- examination on behalf of the appellant, he aserted that at no stage, the monthly rent was determined between him and the appellant. Within the same breath, he volunteered to state that the appellant got allotted the disputed premises on the basis of the forged units and subsequently obtained a registered sale-deed thereof. It clearly meant that the petitioner respondent was fully conscious of the fact that the appellant was holding a sale-deed of the disputed premises in his favour.
10. Admittedly, the petitioner respondent subsequent to the issue of P.T.D. Exh.A.1 in his favour on 31- 5-1971 never served the appellant with any notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (since repealed). The appellant in his statement-as R.W.2 deposed that the petitioner respondent alleging himself to be the owner transferee of the disputed premises never put forward any claim of receiving rent against him. That conduct of the petitioner also gave rise to adverse inference against him."
' It was in the light of these observations of the learned District Judge that the appeal was accepted and relationship of landlord and tenant was not found to exist between the parties.
5. The correctness and validity of order passed, on appeal, by the learned District Judge has been convassed by the petitioner in constitutional jurisdiction. It has been prayed that the impugned order which proceeds on gross misreading of record and is erroneous in law be set aside and be declared to have been made without lawful authority.
6. I have heard learned counsel for the parties. Mr.Munir Ahmad, Advocate, appearing for the writ petitioner contended that the erstwhile evacuee property admittedly stood transferred on 31-5-1971 to the petitioner vide Permanent Transfer Deed Exh.A1 and possession was admitted by respondent No.2 Haji Muhamad Shard to be since before partition. Therefore, on this admission, the relationship of landlord and tenant came into being by force of law. Finding to the contrary recorded by learned Court of appeal ignoring all important admissions found in the statement of respondent No.2 himself and his witness Abdul Majid P.W.1 stating that possession of the property dated back to Partition, in the absence of any valid order of transfer existing in favour of Siraj Din, predecessor-in- interest of Muhammad Shari!, is vitiated altogether. Learned counsel submitted that once it was proved that the property in occupation of respondent No.2 was transferred to the petitioner and possession was found to exist from a date prior thereto, the relationship of landlord and tenant by force of statutory provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was brought into being. Nothing more was required to be proved by the petitioner. Proof of relationship supported by admitted non-payment of rent since the date of transfer rendered exercise for further proceedings futile and the forthwith ejectment order rightly passed by the Rent Controller, was interfered on appeal in improper exercise of appellate jurisdiction.
7. Learned counsel for respondent No.2 submitted that not only the writ petitioner had failed to prove the possession of the respondent prior to the target date of 20-12-1958 but that there was also serious dispute about the identity of property transferred to the petitioner and that in possession of his client Muhammad Shari!. It was further stated that the petitioner had not disclosed the nature of tenancy whether it was contractual or statutory in his ejectment petition. It was further stated that the petitioner's own statement before Rent Controller was that the respondent was in possession of the premises for the last 7/8/10 years. He cannot be allowed to rely on the admissions made by the respondent but must confine to his own case as set up in his pleading and evidence. Learned counsel stated that the plaintiff/ petitioner is to succeed or fail on the strength or weakness of his own case and not that of the defendant/respondent.Any weakness on the part of the defendant cannot be used to strengthen the case of the plaintiff. Absence of the statutory notice was also pleaded. Learned counsel also submitted that in case finding on preliminary issue was reversed the case then was to be remitted to the Rent Controller for determining the remaining controversy in further inquiry. Lastly it was contended that the respondent in case the petitioner succeeds, be permitted to establish his title in a civil Court and necessary observations on the lines suggested in case Rehmat Ullah v. All Muhammad and another 1983 SC MR 1064 be made in the final order so as not to debar the respondent to prove his title in the civil Court if he so desires. Petitioner in ejectment petition clearly averred that the evacuee property No.1/1596-97 Settlement Number and Survey No.B-1-22-52 owned by its previous evacuee owner Mr.C.Rai Bar-At-Law, situated in Puran Nagar, Sialkot City described by boundaries was transferred to him vide P.T.D., dated 31-5-1971, subsequently amended on 23-8-1973 and that the respondent was in its occupation as statutory tenant. Thereafter grounds in support of eviction were stated. Respondent in his reply denied relationship stating that he was in possession of the property in dispute as purchaser from Muhammad Hussain in whose favour Siraj Din transferee had made the alienation. Possession was admitted since before Partition. Petitioner, apart from his own statement, and Yaqoob All who supported him, tendered two documents namely Permanent Transfer Deed Exh .A-1 and extract from the assessment Exh.A2. Muhammad Sharif appeared as R.W.2 and was supported by one Abdul Majid. Registered Sale-Deed has not been.placed before me but reference to it exists in the order of learned District Judge. Anyhow, transfer documents in favour of Siraj Din and proof of its alienation by him in favour of Muhammad Hussain has not been brought on record. No serious dispute was raised on the identity of the property subject-matter of ejectment petition. It is admitted that its evacuee owner was Mr.C.Rai, Bar-At-Law now a displaced person. Yaqoob Ali, a tenant/occupant of a part of the said property stated that the respondent was in possession since the establishment of Pakistan. Mairaj Din, transferee, when appeared, stated in examination-in-chief, that the respondent was in possession for 7/8/10 years. When cross-examined, he deposed that the possession existed for the last 15 years. However, the respondent's own case was that he was in possession since creation of Pakistan. When the entire evidence adduced by the parties is examined, it becomes clear that the possession of the respondent was much prior to the year 1958. Learned District Judge, therefore, committed an error which is apparent on record in shutting out from his consideration the admission made in the written statement and the deposition of the respondent and his witness Abdul Majid. To arrive at a proper and correct conclusion, the Court of appeal was bound to have a look on end consider the entire material brought on record in accordance with law. Looking on the side of evidence only and ignoring the other, was not a proper exercise of jurisdiction. In order to satisfy myself, I have also gone through the entire evidence so as to properly evaluate the grievance noticed about non- consideration of the material evidence available on record on which the Rent Controller had proceeded to record an affirmative finding on preliminary issue. Judgment rendered by the Court of appeal, therefore, suffers from a serious infirmity on account f non-consideration of the entire material before it more so the admission made by the respondent in his written statement and in the evidence. When uch is the situation, it is clearly open to this Court to step in to interfere in its constitutional jurisdiction to undo the wrong done to the rights of aggrieved party. It is also in the evidence of R.W.1 that he respondent was in possession as tenant of the property belonging to a.
Hindu owner which was transferred to a displaced person from whom it was purchased by Muhammad Sharif. In the absence of any proof in support of a valid transfer existing in favour of and its purchase by him when title, rights and interest in the property came to vest in the petitioner transferee, vide Permanent Transfer Deed A.1, the respondent who was in possession previously as tenant cam o hold the property in the same capacity under its transferee i.e. the writ petitioner.
Therefore, I am in no manner of doubt that the property having been transferred in the name of the petitioner and the possession f the respondent having been found to exist prior to 1958 (Sine Partition) as admitted, he was holding the property as a statutory tenant. As the title to the property transferred to the petitioner by the Settlement Department was denied falsely by the respondent and he laimed title in himself without pleading payment of rent, further inquiry nto the allegations of default etc. was neither proper nor necessary. It would be an exercise in futility.
Notice under section 30 was no longer necessary in view of the rule of law enunciated in Muhammad Ramzan v. Ch.Bashir Ahmad PLD 1981 SC 340.
' In the result, the writ is allowed, the impugned order dated 30-6-1983 passed on appeal by the learned District Judge is set aside and declared to have been made without lawful authority. With the above declaration, the order dated 18-4-1983 passed by Rent Controller, E ordering ejectment forthwith revives and is maintained. Respondent, if he so desires and so advised, can pursue his remedy in civil Court to establish his alleged title to the property after vacating' the premises in the light of rule of law laid down in Rehmat Ullah v.Ali Muhammad 1983 SCMR 1064. Parties are left to bear their own costs.