' This judgment shall dispose of C.R. No, 1892 of 1990 and C.R. No, 1893 of 1990. Both of them arise out of a consolidated judgment and decree. Of a learned District Judge at Sialkot, dated 10-12-1989, whereby petitioner's two appeals were dismissed against the consolidated judgment and decree of a learned Civil Judge at Sialkot, dated 25-9-1988, dismissing his two consolidated suits.
2. A.D. Nisar Chaudhary, the plaintiff-petitioner had filed two suits against the Province of the Punjab and the Director of Education, Gujranwala Division, the defendants-respondents, for the recovery of arrears of rent at the rate of Rs,400 per menses in respect of the building of Government Kashmir High School, Sohawa, of which he claimed ownership, for the period from January, 1981 to November, 1983 total being Rs,14,000 and for the period from December, 1983 to January, 1986, total being Rs,10,400.
3. The suits were resisted by the defendants-respondents on various legal and factual grounds which are apparent from the frame of the following issues:-
4. Issues.
(1) Whether the plaintiff has ho locus-standi to file this suit? OPD
(2) Whether the plaintiff is owner of building in possession of the defendant No, 2? OPP
(3) Whether relationship of landlord and tenant exists between the parties? OPP
(4) If issue No,2, is proved, then what is rate or rent? OPP
(5) Whether the plaintiff is entitled to Rs,14,000, as arrears of rent? OPP (5-A) Whether the suit is not maintainable in the present form? OPD (5-B) Whether the disputed property has not been correctly described in the plaint? If so, its correct description. OP (Parties).
(5-C) Whether this Court lacks jurisdiction to entertain and try this suit? OPD (5-D) Whether the plaintiff is entitled to recover the rent for the period of December, 1983 to January, 1986? If so, at what rate and to what extent? OPP
(5) Relief.
(6) After recording the evidence of the parties and hearing their counsel, the learned trial Judge decided issues No,1, 5-A, 5-B and 5-C against the defendants and issues No,2 to 5 and 5-D against the plaintiff and vide his judgment, dated 25-9-1988, dismissed his suit. He remained unsuccessful even before the appellate Court which affirmed the findings of the Courts below on all the issues, vide its judgment, dated 10-12-1989. He ultimately invoked the revisional jurisdiction of this Court.
4. Learned counsel for the plaintiff-petitioner alleging misreading and non-reading of evidence by the Courts below, challenged their findings on issues No,1 to 5 and 5-D. He argued that despite the school in question having been taken over by the Provincial Government under the Martial Law Regulation No,118 its ownership, as held in Government of the Punjab through Secretary, Education Department and another v. Board of Foreign Mission of the Presbyterian Church in U.S.A. Through Lahore Church Council PLD 1988 SC 382, still vested in the plaintiff-petitioner who had constructed its building consisting of 13 rooms and a big hall by expending his own money though on the land donated by the villagers and he had a right to claim its rent from his opponents at the rate of Rs,400 per menses w.e 1. January 1981 to November 1983 and w,e,f. December 1983 to January 1986.
According to the learned counsel, the claim of the plaintiff-petitioner about the receipt of rent was admitted by the defendants-respondents themselves as it is apparent from the Non- accommodation Certificate (Exh. P-6) issued by Executive Engineer, Provincial Building Division, Sialkot and the note of the Headmaster of the school (Exh.P-5) on the application of the plaintiff- petitioner dated 12-6-1977, but these documents were not read in evidence by the Courts below.
5. On the contrary, it is argued on behalf of the defendants-respondents that the building of the school in question was constructed by the villagers with their donations collected on the self-help basis on a piece of land also donated by them and the plaintiff-appellant had, as a co-villager, only managed the construction of the building, without spending anything from his pocket.
According to the learned counsel, the Education Department had got a thorough enquiry conducted in respect of the claim of the plaintiff-appellant through Bashir Ahmad (DW-1) who at the relevant time was Headmaster, Government Normal School, Pasrur, and he had in his enquiry report (Exh.D1) clearly held that the construction of the school building had been supervised by the plaintiff-petitioner but its construction was financed by the villagers who had donated the money.
With reference to the statement of Ehsan Ullah Saqab (D.W.2), who had remained Headmaster of the School since 1975 to 1981, it was contended that during his tenure the school building was in dilapidated condition and a new building had been constructed by the Government at some distance after abandoning the old one as dangerous and as such for that reason too the plaintifff- petitioner was not entitled to receive any rent for the period in question as it was not in the occupation of the defendants-respondents for using it as a school.
6. The plaintiff-petitioner had led oral as well as documentary evidence in support of his contention that over the land donated by the villagers he had constructed the school building by expending the money from his own pocket and then rented it out to a Society known as Kashmir Education Society at the rate of Rs,300 per mensem. According to him, he was owner of the school building and recovered its rent from the Society from April 1968 till its take over by the Provincial Government in September 1972 when he was managing the school as its manager on behalf of the Society. In support of his contention that he had rented out the building to the aforesaid Society, he had produced oral as well as documentary evidence but it does not inspire confidence and was rightly discarded by the Courts below as having been fabricated by him. During the course of departmental enquiry conducted by Bashir Ahmad (D.W.1) under the orders of his department he had examined some villagers who had deposed that the school building had been constructed by the plaintiff-petitioner with the donations of the villagers but their evidence was not sufficient to substantiate this contention and in this respect the evidence produced by the plaintiff-petitioner, that he had constructed the building from his own pocket, appears to be more reliable. From the contents of the note of Headmaster of the School dated 15-11-1979 (Exh.D-1) and the Non- accommodation Certificate issued by the Executive Engineer, Provincial Building Division, Sialkot (Exh. P-6) it appears that the lower functionaries of the Education Department had recommended his case for the payment of rent to the Higher Authorities but the latter were not agreeable.
7. In view of the fact that the plaintiff-petitioner had apparently constructed the school building from his own pocket, he was entitled to charge the rent from the defendants-respondents irrespective of the fact whether or not he had initially rented out the building to the Kashmir Education Society but despite his entitlement to charge the rent from the defendant-respondents for the use and occupation of his building as school, he is not entitled to charge the rent for the period in question i,e. From January 1981 to November 1983 and from December 1983 to January 1986. The reason is that the school building had, as it appears from the enquiry report (Exh. D-1), dated 15-11- 1979, by that time become dilapidated due to lack of care and repair, and had been rendered unfit for the purpose of school. It had virtually been abandoned by the defendants- respondents and till then the school had shifted to the new building constructed by the Education Department at a short distance on the land donated by the villagers as the site of the disputed building had been donated by them. Thus, when the defendants-respondents had stopped using the school building constructed by the plaintiff-petitioner on account of its dilapidated condition, even prior to 1977, they were obviously not liable to pay any rent therefor to him for the period in question. Thus whereas the findings of the Courts below on issue No,2 are reversed and the plaintiff-petitioner is held owner of the disputed building (and not of its site) their findings on other issues are maintained.
8. From the evidence on record it appears that the school building constructed by the plaintiff- petitioner is still available at the site, more in the form of a rubble, with most of the rooms having no ceiling, than in any presentable form capable of being used for any useful purpose. In this rubble material even the defendants-respondents do not appear to be interested and even if they lay any claim to its ownership, that would be unfounded more so in view of the said ruling. The plaintiff- petitioner can, therefore, removed the building material of the school building in question and utilize it in any manner he likes. The revision petitions arc accepted only to this extent and the impugned judgments and decrees are modified accordingly.