' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of an application under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by Mst.
Maqsooda Begum, the predecessor of the petitioners, against the respondents 1 to 7 who are legal heirs of Subedar Ghulam Nabi. This application was accepted by the Rent Controller on 6th November, 1984, but was dismissed in appeal by the Additional. District Judge on 13th June, 1985.
2. The dispute relates to house bearing No, SWE-XIV-45-S-8 situated in Mustafaabad, Dharampura, which originally belonged to Sher Muhammad and others. It was mortgaged by Sher Muhammad in favour of Subedar Ghulam Nabi through registered deed dated 27th September, 1971. It was stipulated that on the redemption of mortgage Subedar Ghulam Nabi shall become a tenant under the mortgagor. It is common ground between the parties that on 2nd June, 1975, this mortgage was redeemed and Subedar Ghulam Nabi continued to remain in possession of the house which was purchased by Mst. Maqsooda Begum, petitioner's predecessor, vide registered deed of sale dated 1st September, 1975, which was registered on 13th September, 1975.
3. After having purchased the property, Mst. Maqsooda Begum filed an application for eviction against Subedar Ghulam Nabi, who resisted it on the plea that he was in possession of the property not as a tenant but under an agreement to sell executed in his favour by Sher Muhammad and others, the original owners. This application was dismissed by the Rent Controller on 18th February, 1981 holding that since there was a dispute as to title of the property, there was no relationship of landlord and tenant between the parties. It is also to be noted that for the enforcement of the agreement to sell allegedly executed by Sher Muhammad and others, a suit for specific performance of this agreement had been filed by Subedar Ghulam Nabi, the predecessor of the respondent in the Civil Court.
4. The present petition arises out of an application for ejectment filed by the predecessor of the petitioners against respondents 1 to 7 on 16th June, 1981 In the written statement filed by the respondents, they again took up the plea that they were not tenants under the petitioners, but were in possession of the property under an agreement to sell, An objection was also raised that in view of the dismissal of the earlier application for ejectment, the subsequent ejectment petition was barred by Section 14 of the Punjab Urban Rent Restriction Ordinance, 1959.
5. Out of the pleadings of the parties, the Rent Controller framed the following issues:-
(1) Whether the relation of landlord and tenant exists between the parties?
(2) Whether the petition is barred under Section 14 of Ordinance VI of 1959?
(3) Relief.
By the order dated 16th November, 1984, both the issues were decided in favour of the petitioners and the ejectment petition was accepted.
6. Aggrieved, the respondents filed an appeal which was allowed by an Additional District Judge on 13th June, 1985, who reversed the finding of the Rent Controller on issue No,1 and held that the respondents were not tenants under the petitioners. He consequently dismissed the eviction petition.
7. Ch. Muhammad Salem, Advocate, representing the petitioners submits that the judgment of the Additional District Judge is based upon misreading of the record and non-consideration of material evidence. The learned counsel has particularly relied upon notice dated 1st September, 1975 (Annexure B) sent by the respondents, to the predecessor of the petitioners admitting that they were in possession of the property as tenants. A reference has also been made to the plaint (Annexure B) of the suit for the specific performance filed by predecessor Of the respondent against the petitioner and their predecessor wherein it has again been admitted that after the redemption of mortgage, the respondents continued to remain in possession of the house as tenants.
8. Ch. Atta Ullah, learned counsel representing the respondents has, however, argued that the findings of fact recorded by the Additional District Judge are not liable to be interfered in constitutional jurisdiction of this Court. Learned counsel relied on the sale-deed executed by Sher Muhammad and others, in favour of the petitioners containing an averment that the property was in possession of the petitioners as unauthorized occupants.
9. Having considered the respective contentions of the parties and perused the record, I find that the judgment of the Additional District Judge suffers from errors apparent on the face of the record and is not sustainable. There is no dispute between the parties that originally the property belonged to Sher Muhammad and others, who had mortgaged it in favour of Subedar Ghulam Nabi, the predecessor of the respondents. It is also admitted that according to the - terms of the mortgage, on the redemption of the property, Subedar Ghulam Nabi was to remain in possession as tenant under the owners. It is also common ground between the parties that the property was redeemed in the year 1975. In the notice dated 1st September, 1975 (Annexure B) sent by the counsel of the predecessor of the respondents, Subedar Ghulam Nabi acknowledged himself in A possession as a tenant. There is also an admission to the similar effect in the plaint of suit for specific performance filed by Subedar Ghulam Nabi against the petitioners and their predecessor.
These admissions and contents of the mortgage deed leave no doubt that after the redemption of the property, the predecessor of respondents 1 to 7 became a tenant. It was never the case of the respondents that they were unauthorised occupants of the property but, on the other hand, they have all through been agitating that there was an agreement to sell executed by Sher Muhammad and others, in favour of their predecessor Subedar Ghulam Nabi, and they were as such in possession in that capacity. It is not denied by the learned counsel for the respondents that the suit for specific performance filed by respondents 1 to 7 was dismissed by the trial Court on 16th March, 1982 holding that the agreement relied upon by them was forged and fabricated. This finding was upheld in appeal by the Additional District Judge on 6th March, 1983 and has attained finality. It was, therefore, not open to the respondents to rely upon the agreement to sell which had been found by the Civil Court to be forged and fabricated.
10. As regard the contention of the learned counsel for the respondents that the sale-deed between predecessor of petitioners and the previous owners contains a recital that the property was in occupation of unauthorized occupants, suffice it to say that at that time, possession was being claimed by predecessor of the respondents under an agreement to sell and it was in that context that the sale-deed recited that the house was in possession of the unauthorized occupants. However, as the Civil Court subsequently found that the agreement to sell relied upon by the respondents as forged and fabricated, the petitioners could not be non-suited on the basis of a mere recital in the sale-deed.
11. The respondents had never claimed to be unauthorized occupants and could not be held to be so by the Additional District Judge.
' As a result of what has been said above, this petition is accepted, the judgment of the Additional District Judge dated 13th June, 1985 is declared to be without lawful authority and of no legal effect, with the result that the order of the Rent Controller dated 6th November, 1984, stands restored, with no order as to costs.
' At the request of learned counsel, the respondents are allowed four months time to vacate the premises.