1. ZAFFAR HUSSAIN MIRZA, J.-- This appeal by leave of this Court arises out of order dated 1-10-1983 whereby a learned Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi dismissed the revision petition filed by the appellant in limine.
2. The dispute in this case concerns House No. A-120, Kashmiri Bazar, Rawalpindi, which was transferred to respondent Syed Gauhar Ali by the Settlement authorities and a Provisional Transfer Order was issued in his favour on 7-5-1960. According to the respondent, the first floor of the house was in. Occupation of Muhammad Aslam and Muhammad Muslim sons of Qasim Ali, who in spite of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, failed to pay or tender rent and consequently he filed an ejectment application against them on 20-2-1973. Muhammad Aslam and Muhammad Muslim, after entering appearance in the proceedings, on 10-3-1975 made an application to the Rent Controller, stating that the disputed premises was in possession of Syed Qasim Ali who having expired, at the lime of transfer of the property to the respondent, the alleged tenancy rights of the deceased had devolved on Mst. Saeeda Khatoon, his widow, his five sons including the present appellant as well as Muhammad Aslam and Muhammad Muslim and three daughters. It was prayed that all the said legal heirs of deceased Qasim Ali be joined as respondents in the ejectment proceedings. The learned Rent Controller, however, dismissed the application on 14-10-1976 on the ground that the landlord who was the petitioner before him having only impleaded Muhammad Aslam and Muhammad Muslim out of the legal representatives of deceased Qasim Ali who were the only to occupants of the premises, it was not necessary to join the rest of the legal representatives of the deceased. The appellant and his mother Mst. Saeeda Khatoon also applied separately for their joinder under Order 1, rule 10 of the Code of Civil Procedure on similar grounds but their application, according to the learned counsel for the appellant, was also disallowed. The appellant and his mother sought to challenge the order in a revision before the District Judge but the same was dismissed as incompetent in law.
3. Subsequently the learned Rent Controller by his order-dated 16-9-1981 accepted the respondent's application and directed the ejectment of Muhammad Aslam and Muhammad Muslim. This order of ejectment was affirmed in appeal by the learned Additional District Judge, Rawalpindi.
4. Thereafter the respondent filed an execution application against Muhammad Aslam and Muhammad Muslim in the Court of Civil Judge, Rawalpindi. The appellant intervened in these proceedings and filed objection to the execution on the ground that he had succeeded to the rights of his father in respect of the property in question and as he was not made a party to the ejectment application, the eviction order was not binding on him. In the heading of the objection petition the appellant asserted that he was in legal occupation of the premises in his own right.
5. This objection petition was contested by the respondent who filed a written reply to the same, alleging that the objection was mala fide and filed in order to delay the execution of the eviction order. The learned Rent Controller framed issues on the pleadings of the parties and recorded evidence produced by them, on considering which he came to the conclusion that the appellant was not in possession of the disputed property in his own right. In this connection he observed:- "8. The position that emerges from the survey of oral as well as documentary evidence is to the effect that the suit property was transferred to the respondent. The predecessor-in-interest of the present petitioner and his brothers challenged that order on Settlement side but with utter failure.
6. The ejectment petition which was instituted in the year 1975 faced a protracted trial and was decided in the year 1981. The appeal was dismissed in the year 1982 and now the petitioner has moved the instant objection petition with ulterior motive to avoid implementation of the ejectment order which was confirmed by the learned appellate Court also. The petitioner has taken the position that the ejectment order i; outcome of misrepresentation and fraud. He did not utter a ,single word in his statement to establish this allegation. Even otherwise the particulars of alleged fraud have not been furnished. The petitioner is not with any grounds to say that he is in legal occupation of the suit property in his own right. The plea that no notice was served also pales into insignificance in face of the judgment of the learned appellate Court which is to the effect that the brother of the present objection petitioner/ namely Muhammad Aslam and Muhammad Muslim are in possession of the suit property with ulterior motive."
7. In view of his conclusions the learned Rent Controller dismissed the objection by his order dated 31- 7-1981. The appeal filed by the appellant also failed and was dismissed by the learned Additional District Judge, Rawalpindi, who agreed with the finding recorded by the Rent Controller vide order dated 10-9-1983. Being aggrieved the appellant challenged the orders of the Courts below in a revision before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was dismissed in limine by the impugned order. The learned Judge in the High Court held that there was no evidence to prove the assertion of the appellant that he was in possession of the property in his own right so as to resist the execution of the eviction order passed in respect thereof.
8. Leave was granted to examine the following contentions raised by the appellant:-
(i) That in view of the admitted position that the property was allotted to the father of the appellant, on his death the rights legally devolved upon all his heirs including the appellant, who thereupon became the statutory tenant in the property by virtue of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and, therefore, the eviction order passed in proceedings in which he was not made a party, was not binding on him. That in the aforesaid circumstances the Courts below had erred in rejecting his objection and had failed to exercise jurisdiction lawfully vested in them.
9. It has been mainly contended by the learned counsel for the appellant that the appellant was admittedly one of the legal heirs of the deceased allottee and in that capacity had succeeded to the tenancy rights of the deceased tenant, but the Courts below had failed to determine the crucial question whether he was in possession of the property in his own right. In this connection he submitted that the appellant's possession in the disputed property was admitted by the respondent in his evidence in the main proceedings in which he had stated that the respondents in the ejectment proceedings (i.e. Muhammad Aslam and Muhammad Muslim) had left the house and handed over the possession to the present appellant who was in occupation. This admission coupled with the fact that the appellant was the legal representative of the original occupant /allottee of the property, according to the learned counsel, was sufficient to establish that he was in physical possession of the property in his own right and was not claiming through the judgment- debtor against whom the order of eviction was passed.
10. Now as conceded by the learned counsel for the appellant, the objection filed by the appellant resisting the execution of the eviction order properly fell under rule 97 of Order XXI of the Code of Civil Procedure and was to be determined either in terms of rule 98 or 99 of the same Order. He could succeed in averting dispossession in execution of the eviction order only when he satisfied the Court that he is in possession in good faith on his own account or on account of some person other than a judgment-debtor as required by Order XXI, rule 99 of the Code. The admission of the respondent relied upon per se, therefore, of no benefit to the appellant, inasmuch as the same is to the effect that he had been put in possession of the property by the judgment-debtors.
11. Additionally there is nothing in that statement to the effect that on the date of the transfer of the property under the Settlement Laws in favour of the respondent he was in possession of the property. He might as well have come into possession subsequently and in this context the admission relied upon is not conclusive of the right claimed by the appellant. The Courts below had indeed held that he was not in possession of the property on the date of the ejectment application or even earlier when he had agitated the question of transfer before the Settlement Authorities.
12. Statutory tenancy in respect of evacuee properties transferred under the Settlement Laws is created under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
13. The entitlement to tenancy right under that provision is based on the factum of possession of the evacuee property and the tenancy is created on "the same terms and conditions as to payment of rent or otherwise on which he held it immediately before the transfer." The crucial question, therefore, was whether the appellant was in possession of the property on the date of transfer in favour of the respondent. There is nothing in the body of the objection petition to that effect and the learned counsel was unable to satisfy us that the appellant had established this fact on record.
14. The essential condition for estab--lishing the fact that the appellant was in possession on his own account was, therefore, wholly absent in this case. Above all the appellant having been given a proper opportunity to prove his case failed to do so and there is a concurrent finding of fact against him which cannot be lightly disturbed at this stage. The result is that the appellant has failed to establish his possessory right on his own account and, therefore, the eviction order is liable to be executed against him.
15. In conclusion we find no merit in this appeal which is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.