' This appeal filed by defendant under section 24 of the Cantonments Rent Restriction Act, 1963 is directed against order, dated 21-9-1991 passed by learned Additional Rent Controller, Lahore Cantonment whereby the ejectment petition filed by respondent has been accepted and the appellant is directed to hand over vacant possession of the disputed premises to it within three months from the date of the order.
2. The respondent which is registered Anjuman-e-Darbar-e-Hussain, filed an ejectment petition against the appellant seeking his eviction from the two shops in dispute inter alia on the ground of default in payment of rent. The appellant was occupying the same as tenant under the Anjuman.
The appellant contested the ejectment petition by filing written reply in which he denied the existence of relationship of landlord and tenant between the parties. An objection was also raised that the ejectment petition had not been instituted by a duly authorised person.
3. The controversies arising between the parties were reflected in the two preliminary issues framed by the Additional Rent Controller which are reproduced below:--
(1) Whether the relationship of landlord and tenant between the parties exists? O.P.P.
(2) Whether the petition has been filed by a competent person, if not its effect? O.P.P.
4. In support of his case the respondent/Anjuman examined Ch. Arif All as P.W.1, Ghulam Haider son of Ismail as P.W.2, Hira Khan son of Ghulam Muhammad as P.W3, Abid Hussain son of Walidad as P.W.4, Syed Aulad Hussain son of Syed Nadar Shah as P.W.5. The respondent also produced documentary evidence which are Exhs.P.W.2/1, to P.W.2/3 mark A.1, Mark `A' to mark '0' and Exh.P.W.5/1 to Exh.P.W.5/6. Documents Exhs.R.1 to R.5 were produced by the respondent during the cross-examination of the respondent.
5. The appellant examined Sardar Ahmad as R.W.1, Muhammad Yousaf as R.W.2. He appeared himself as his own witness as R.W.3. He also produced documents Exh.R.W.3/1.
6. The Additional Rent Controller Cantonment after considering the evidence produced by the parties decided issue No.1 in favour of respondent under which it was held that the appellant was occupying the premises as tenant. Under issue No.2 it was held that the ejectment petition had been instituted by a duly authorised person on behalf of respondent/Anjuman.
7. The ejectment petition was accepted through order, dated 21-9-1991 which has been assailed in this appeal.
8. Since the case of the respondent/Anjuman was that it was entitled to receive rent of the premises being its owner and on the other hand the case of the appellant was that he was in occupation of the premises since last 40 years in his own right and had raised the construction and was occupying the same A not as tenant under the respondent, therefore, as per rule laid down in the case reported as Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1, the respondent was required to establish beyond reasonable doubts that it was the owner of the property in dispute as the status of landlord was claimed on the basis of ownership.
9. It was admitted by the appellant in his evidence that the property was owned by Mehtab which was in the shape of land. It was his case that Mehtab allowed him to occupy the land belonging to him and he raised construction of the shops in dispute and was occupying the same with the permission of the said owner. He in support of his case examined Sardar Ahmad as R.W.1 who is the son of said Mehtab as such the identity of property can be ascertained that the dispute is with regard to the same property which was previously owned by Mehtab.
10. The respondent produced in evidence sale-deed executed by this Mehtab in favour of Muhammad Shafi for the construction of Darbar-e- Hussain on 12-6-1972 which was duly registered. Through this sale-deed land measuring 10 Marlas comprising Khasra No.250 owned by Mehtab was sold. Another land measuring 10 Marlas owned by Muhammad Bashir was sold for construction of Darbar-e-Hussain through Muhammad Shafi through sale-deed executed by Muhammad Bashir which was duly registered on 13-7-1972 a copy of which has also been produced in evidence as Ext. P.W.5/2. Copy of Mutation No.886 through which the said land owned by Muhammad Bashir was mutated in favour of Darbar-e-Hussain as vendee which was sanctioned on 9-8-1972. Through Mutation No.430 (Ext.P.W.5/3) land owned by Mehtab Din was mutated in favours of Darbar-e-Hussain/respondent through Muhammad Shafi in the capacity of Uohtamam as vendee on 29-6-1972. The entry in favour of Darbar-e-Hussain 'Ba-Ahtamam'
Muhammad Shall regarding the land owned by Muhammad Bashir was made in Jamabandi for the year 1975-76 Ext. P.W.5/4 whereas entry in favour of Darbar-e-Hussain as owner `Ba-Ahtamam'
Muhammad Shall was made in the Jamabandi for the same year regarding the land sold by Mehtab (Ext. P.W.5/5). This evidence is sufficient to establish beyond reasonable doubt that the land owned by Mehtab was sold to respondent/Anjuman through Muhammad Shall and vested in it as owner.
11. Learned counsel for the appellant argued that from the copies of the sale-deeds produced in evidence, it is manifest that it was Muhammad Shall who purchased the land and there being no evidence that he created 'NNW regarding the said land and gave it to Darbar-e-Hussain therefore, respondent/Anjuman was vested with no locus standi to file the ejectment petition and it was Muhammad Shafi who could file the ejectment petition. I am afraid the argument has no force.
From the copies of the sale-deeds, it is evident that Muhammad Shall was just acting on behalf of Darbar-e-Hussain because it was specifically recited that the land was being purchased for construction of Darbar-e-Hussain. The matter was placed beyond doubt when mutations were sanctioned in favour of Darbar-e-Hussain `Ba-Ahtamam' Muhammad Shall and entries in the Jamabandis were made in favour of Darbar-e-Hussain as owner of the. land through purchase from the previous owners. There is no prescribed form for creating a Waqf. The conduct of a person concerned vis-a-vis the property is consistently held to be sufficient evidence for raising presumption that the property was a Waqf property. In this case Muhammad Shafi had conducted himself in clear terms that the land was treated to be Waqf from the very date of its purchase therefore, the argument is repelled.
12. P.W.1 Ch. Arif All is the son of Muhammad Shall deceased through whom, the land was purchased. According to his evidence it was the respondent/Anjuman which raised construction over the land and the appellant was occupying the same as tenant. This witness was the President of the Anjuman. In the cross-examination he stated that the land was vacant when the same was purchased for the Anjuman. His father was the President of the Anjuman. He stated that the appellant was inducted in the premises as tenant in the year 1975 and two rooms were in his possession whereas on the other premises he had put his locks. He categorically stated in the cross-examination that it was the Anjuman who gave the premises on rent to the appellant.
Ghulam Haider P.W.2 who was tenant in one of the shops under the respondent and remained as such for three years, stated that he did not know as to in what capacity the appellant was in possession of the premises but he admitted that when he became tenant of the Anjuman the appellant was not in possession of the shops. He stated in the cross-examination that the premises were constructed from 1972 to 1975. Hira Khan P.W.3 is the person who constructed the shops as mason. He stated that the construction was got raised by Muhammad Shafi who was President of the Anjuman and that they were constructed in the year 1972 for which he was paid by Muhammad Shafi and at that time the appellant was not present at the spot. Abid Hussain P.W.4 has also given evidence for the construction of the property by the Anjuman. He was in possession of the account books maintained by the Anjuman regarding receipt of rent from the tenants of the property of Anjuman in which name of the appellant was entered as one of the tenants. P.W.5 is Aulad Hussain who has also supported the case of the respondent.
13. I have closely scrutinized the evidence produced by the respondent as also the appellant and endorse the finding recorded by learned Additional Rent Controller Cantonment that the respondent succeeded in establishing existence of relationship of landlord and tenant between the parties.
14. Learned counsel for the appellant submitted that it is in the evidence of P.W.4 that the appellant had paid rent upto April 1980 whereas in the ejectment petition the default was alleged from January, 1978 to June 1981 which inconsistency, according to him, is proof of the fact that Anjuman was not the owner and landlord of the property. I have gone through the evidence as a whole from which it is clear that apart from the two shops in dispute from which ejectment of the appellant had been sought the appellant was also alleged to be in possession of other premises therefore the said payment of rent might be qua them. This does not falsify the case of the respondent. The appellant examined son of Mehtab from which it appears that the heirs of Mehtab had colluded with the appellant and were supporting him because there was dispute regarding the sale of land by Mehtab in favour of Anjuman for which civil litigation is pending.
15. In the ejectment proceedings the respondent had to establish beyond reasonable doubt its right to receive rent which has been fully established therefore, issue No.1 was rightly decided. If the appellant wants to establish that he was not tenant and had constructed the property himself from his own resources he may file civil suit to establish his rights if any. The respondent having established beyond reasonable doubts that it was the Anjuman who was the owner of the property, had constructed the same and inducted the appellant in the premises for the purpose of ejectment proceedings, therefore, the appellant is liable to be ejected as having denied his status as tenant, he shall be deemed to have admitted non-payment of rent.
16. Learned counsel for the appellant did not challenge the finding on Issue No.2 during the argument. Even otherwise the ejectment petition was rightly held to have been filed by a duly authorised person on behalf of respondent to which no exception can be taken.
17. For the foregoing reasons the appeal fails which is accordingly dismissed with no order as to costs.
18. The appellant is granted four months time to vacate the premises failing which he shall be ejected through execution.