This is a Constitutional petition filed by Mst. Kaniz Fatima, petitioner, against the judgment of the Rent Controller, Lahore, dated 21-1-1981 and that of the District Judge, Lahore, dated 24-10-1983 ordering her eviction from the house in dispute.
2. The brief facts of the case are that in 1976, Khalil Ahmed Sharar, the present respondent, leased out house bearing No. NW-IX-1-AS-3 behind Police Station Shahdara, Lahore, to Mst. Kaniz Fatima, the present petitioner, at a monthly rent of Rs.
100. Since the petitioner failed to pay the rent of the disputed house from 1-4-1977, the respondent on 27-9-1978 filed an eviction petition against the petitioner on grounds of default, personal use, damage to the property and nuisance. In her written statement, the petitioner denied the relationship of landlord and tenant and took up the plea that property bearing No. NW-IX-1-AS--3 was located in khasra No. 664 of Mauza Jia Musa, Tehsil and District Lahore, that the jamabandi relating to the said khasra No. 664 showed that the land was owned by Noor Ahmad and others and was under their occupation, that the respondent was in unauthorised occupation of the land in khasra No.664 of Monza Jia Musa which he had vacated in 1971 after extorting a-sum of Rs.11,000 and that the petitioner, after incurring an expenditure of Rs.7,000 had constructed rooms on this plot in which she was presently residing. The learned Rent Controller thereupon framed an issue whether there was a relationship of landlord and tenant between the parties. After recording the evidence of the parties and hearing arguments, the learned Rent Controller held the issue to be proved and ordered the eviction of the petitioner, giving her a month's time within which to vacate the disputed premises.' Being aggrieved by the said order, the petitioner preferred an appeal before the District Judge, Lahore. During the pendency of the appeal, the petitioner made two applications praying for the amendment of her written statement and the memorandum of appeal, in order to substitute khasra No. 662 for khasra No. 664 in para 1 of the written statement and in. The memorandum of appeal. Both these applications were allowed, on the express condition that she would not produce any fresh evidence and would confine her evidence to what had already been brought on the record. The necessary amendments were thereafter made in the written statement and the grounds of appeal.
After hearing the arguments the learned District Judge, Lahore, by his judgment dated 24-10-1983, dismissed the appeal of the petitioner, allowing her two months' time within which to vacate the disputed property. Being aggrieved by the order of the learned Rent Controller and the judgment of the learned District Judge, Lahore, the petitioner preferred a writ petition in the High Court, which is now before me for disposal.
3. I have heard the arguments of the learned counsel for the petitioner and the contesting respondent and have also perused the record. On the pleadings of the parties what stands admitted is that the house in dispute bears property No. NW-IX-1-AS-3, which is situate just behind the Police Station Shahdara and is situate on land bearing Khasra No. 662 of Jia Musa, Tehsil and District, Lahore.
4. The petitioner's case is that the respondent was in unauthorised occupation of land in khasra No. 662 of Mauza Jia Musa, which he vacated in 1971 after extorting a sum of Rs. 11,000 from her, that she bought ten marlas of land out of khasra No. 2562/662 situate in Mauza Jia Musa, Tehsil and District Lahore, from one Jan Mohammad, vide registered sale deed Ex. R5 on 27/28-5-1979, that mutation Ex. R was senctioned m her favour in connection with the said purchase of the land on 8- 9-1979 and that her vendor Jan Mohammad, who had sold the land in her favour, had secured possession of three kanals six marlas of land in khasra No. 2562/662 of Jia Musa, Tehsil and District, Lahore, through a decree of the Civil Court dated 6-1-1973 against Sheikh Mohammad Sarwar and Mohammad Siddique, in respect of which he had secured symbolic possession through a Bailiff of t Court on 27-8-1977 vide Roznamchi Waqiati Ex.R3. It is the petitioner's case that after she had paid Rs. 11000 to the respondent to vacate the land sold to her, she had constructed rooms on that plot after incurring an expenditure 9f Rs. 7,000.
5. It is the respondent's cafe that on 3-10-1973 he had purchased nine marlas bf land out of khasra No.662/1 of Mauza Jia Musa Tehsil and District, Lahore, from one Nazir Ahmad, vide registered sale deed EX.Pl, that he had thereafter constructed a house on the sad plot, which was given property No. NW-IX-1-AS-3 by the Taxation, Department, that he had secured electricity connection for the said house on 22-1-1977, that the said house was assessed by the Taxation Department in June 1977 and that he had let out the same to the petitioner at Rs.100 per mensem sometime in 1976. It is the respondent's case that actually one Mohammad Siddique was the owner of the said land, who in turn had sold it to Nazir Ahmad P.I, who thereafter had sold it to him on 3-10--1977, vide registered sale-deed Ex.P1, through Ghulam Ahmad PW 4, a property dealer, and that it was through the said property dealer that the petitioner had obtained the house from him on rent. It is also the respondent's case that later when a dispute arose between him and the petitioner about the payment of rent, he took the said property dealer to the petitioner, who promised that she would pay the rent and vacate the disputed house. .
6. It is clear that the respondent purchased nine marla4 of land out of khasra No. 662/1 of Mauza Jia Musa, Tehsil and District, Lahore from one Nazir Ahmed. On 3-10-1973, vide registered sale-deed Ex.Pl. Nazir Ahmad P.I had supported the sale deed Ex.Pl. He also stated that the house thereon was constructed by the respondent. Rehmat A.I PW2,who is the Record Clerk of the Excise and Taxation Department, clearly stated that the property in dispute was owned by the respondent and the petitioner was shown as tenant for the purposes of assessment on 30-6-1977. Mohammad Ilyas PW3, who is the Record Clerk of the electricity department deposed that he had brought the file relating to the electricity connection installed in the disputed premises, from which it was clear that the electricity connection had been given to the respondent on 22-1-1977, after necessary documents., and security were furnished by him. He also stated that the electricity bills were being issued in the name of the respondent. He also deposed that before the electricity connection was given to him, the respondent had produced the sale-deed proving ownership of the house.
Ghulam Ahmad PW4, who is a property dealer, deposed that Nazir Ahmad PW1 had purchased the land under the house in dispute from him and then had sold it to Khalil Ahmad, respondent, that the petitioner had approached him and he had obtained the house in question for her on rent from the respondent and that when a dispute arose between the parties about the payment of the rent, he was taken to the petitioner, who promised that she would pay the rent and vacate the same: Muhammad Bashir PW 5 stated that the petitioner was in possession of the house as a tenant under the respondent, that there arose a dispute over the payment of the rent and he had met the .Petitioner, who had promised to pay the same and to vacate the disputed house when she got another one. Haji Zahoor-ud-Din PW6, who is the attorney of the respondent, deposed that the house in dispute belonged to the respondent, that two years and three months back, he himself had given it on rent to the petitioner at Rs.100 per mensem and that the petitioner had failed to pay the rent since 1977.
7. It is also clear from roznamcha waqiati Ex: R3 dated 27-8-1977 that one Jan Mohammad secured symbolic possession of three kanals and six marlas of land of khasra No. 2562/662 of Mauza Jia Musa through the Bailiff of the Civil Court, pursuant to a decree dated 6-1-1973 obtained by him against Sheikh Mohammad Sarwar and Mohammad Siddique and that vide sale-deed EXR5, the said Jan Mohammad sold ten marlas of land out of the said khasra No. 2562/662 of Mauza Jia Musa to Mst. Kaniz Fatima on 27/28-5-1979. The roznamcha waqiati Ex.R3 clearly shows that when Possession of three kanals and six marlas of land out of khasra No.2562/662 was given to the said Jan Mohammad, a number of houses appeared on the said land, including that of Khalil Ahmad, the present respondent, and, therefore, symbolic possession was given with regard to the area covered by the said construction. Though Rehmat A.I RW2 in cross examination states that the petitioner had been in occupation of the property prior to 28-5-1979, it is not possible to believe that she could have constructed the disputed house on the same prior to that date as she did not own that plot till that date. The petitioner had not given any evidence to show that she had constructed the house before 27/28-5-1979, i.e. Before purchasing the plot which constituted its site from Jan Mohammad.
8. From the oral and documentary evidence on the record, as stated above, it is clear that actually respondent had built the house on the disputed land which he had let out to the petitioner. In this connection the testimony of the independent witnesses produced by the respondent cannot be brushed aside. What appears perhaps is that the petitioner coming to know that Jan Mohammad had secured a decree against Mohammad Siddique on 6-1-1973 and has secured possession of three kanals six marlas of land out of khasra No. 2562/662 of Mauza Jia Musa, bought ten marlas of land out of the said area from Jan Mohammad on 27/28-5-1979 in the hope of ousting the respondent's title to the house in dispute. It is perhaps possible that Mohammad Siddique, who was one of the judgment debtors to the decree obtained by Jan Mohammad, was the same person who had sold the nine marlas of land to Nazir Ahmad P.I, who in turn had sold it to Khalil Ahmed, respondent, on which the disputed house was built. However, the respondent did not file the certified copies of Jan Mohammad's decree dated 6-1-1973. Assuming this was the position, as I apprehend, the petitioner would still be a tenant of the superstructure built by Khalil Ahmed, respondent. Taking all circumstances into account and the somewhat insufficient evidence produced by the petitioner, the judgments of both the Court's below do not appear to be either illegal or perverse. No interference in the Constitutional jurisdiction is, therefore, called for.
9. On behalf of the petitioner it is submitted that both the lower Courts should not have gone into the question of title of the house, as the same was disputed, and that they should have left it for determination by the Civil Court. I do not see that any serious dispute as regards the title to the property is involved. Assuming, for a matter of argument, though not admitting, that the title to the land is somewhat disputed, there is no dispute as regards the title to the superstructure thereon, which definitely belongs to the respondent. Independent evidence also shows that the petitioner was inducted into the premises by the respondent. Nothing, therefore, turns on the objection raised by the learned counsel for the petitioner.
10. For the foregoing. Reasons, there being no merit in this petition, the same is dismissed. The petitioner is given two months' time within which to vacate the house. There shall be no order as to costs.
M.Z.S./K-174/L