' The dispute in this case relates to Shop No, P-54, situate in Mandi Pir Mahal, Teh. & Distt. Toba Tek Singh. It has a chequered history.
2. It is not necessary to go into the details to resolve the present controversy. Suffice it to say that the property in dispute was transferred in favour of Pir Muhammad Din Shah, predecessor-in- interest of the petitioners to whom the shop in dispute was also allotted by the Settlement Department on 1-11-1947. Subsequently, it was cancelled without notice to him and allotted to respondents Nos. 1 to 3 herein. The dispute was ultimately settled by the High Court by means of Writ Petition No,161-R-1966, decided on 14-11-1968, whereby transfer order in favour of the predecessor-in-interest of the petitioners in respect of the disputed shop was upheld. It was also held that Hasan Muhammad respondent No,1 herein was neither allotted nor in undisputed possession of the said shop, which was alleged to be allotted to him alongwith respondents Nos. 2 and ,3 herein, Respondent No,1 filed L.P.A. No, 85 of 1969 against the said order which was dismissed on 14-9-1969. The same was the fate of Civil Appeal No,287 of 1970, dismissed by the Supreme Court of Pakistan on 21-3-1977 and Review Petition No, 23-R-1977 dismissed on 2-12-1979. In consequence whereof, the petitioners were issued permanent transfer deed on 9-1-1980. During pendency of the dispute, the petitioners also filed ejectment petition against respondents Nos.1 to 3 on the ground of default, personal need and damage to the property.
3. Learned Rent Controller in view of evidence led by the parties, vide order dated 29-6-1985 accepted the application and ordered eviction of the contesting respondents.
4. On appeal, the learned Additional District Judge by order dated 1-12-1985 set aside the order of the learned Rent Controller by rejecting the application for ejectment on the ground that relationship of landlord and tenant was not established between the parties, inasmuch as transfer order in favour of the petitioners herein Exh.A/1 was issued on 9-1-1980.
5. I have heard learned counsel for parties at length. The admitted position is that the transfer order in respect of the disputed property was passed by the Settlement Authorities in favour of predecessor-in-interest of the petitioners on 15-12-1965. This order has been upheld by the superior Courts and in consequence thereof, transfer order bearing No,94524/3104 dated 9-1-1980 Exh.A/1 has been issued to the petitioners. The mere fact that permanent transfer deed was issued in 1980 would not lead to the conclusion that relationship of landlord and tenant existed between the parties on the said date. The relationship was established when the order of transfer was passed in favour of the predecessor-ininterest of the petitioners. When faced with this, Mrs.K.M.Virk, learned counsel for contesting respondent vehemently argued that the respondents Nos.2 and 3 were not party to the Writ Petition No,161-R-1966 filed by Hasan Muhammad. They were not impleaded as party in appeal and review petition before the Supreme Court and, therefore, the order of transfer passed in favour of the petitioners in pursuance of the aforesaid judgment is not binding on them.
The contention has no force. Hasan Muhammad respondent No,1 claims allotment of the disputed property in his favour alongwith respondents Nos.2 and 3 who are brothers interse, thus the interest of respondents Nos. 2 & 3 was fully safeguarded by Hasan Muhammad respondent. The respondents Nos. 2 and 3 failed to take any step to be impleaded as party to the writ petition and before the Supreme Court in appeal and review petition, therefore, no 'benefit can be claimed by them for their own negligent in pursuing their case.
6. In view of the above, the impugned order dated 1-12-1985 of the learned Additional District Judge, Toba Tek Singh is declared as without lawful authority and of no legal effect. The result is that the appeal filed by respondents Nos.1 to 3 against the judgment dated 29-6-1985 of the learned Rent Controller, Toba Tek Singh shall be deemed to be pending and the same shall be disposed of within 30 days after hearing the parties. The parties are directed to appear on 20-4-1991 before the District Judge, Toba Tek Singh who shall personally hear the appeal and dispose of the same on merits in accordance with law, and in the light of the observations made in this judgment. To this extent the writ petition is accepted but the parties shall bear their own costs. /Order accordingly.