' ZIA MAHMOOD MIRZA, J.---This judgment will dispose of the abovementioned three Civil Appeals as also the contempt matters initiated therein as the dispute giving rise to all these matters relates to the same property.
2. Facts forming the background of these appeals briefly are that Ladha Rice Factory, Sheikhupura, an evacuee concern, was allotted to Sardar Khan. The predecessor-in-interest of the appellants in the year 1956. The factory, it is stated, was constructed by its evacuee owner on the State land which was on lease with him. On the commencement of settlement operations under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the said factory was transferred to Sardar Khan in 1960 whereafter, he rented out the godowns situate in the factory premises to the respondents in these appeals. It appears that a question arose in some proceedings whether the land underlying the factory was also transferred to Sardar Khan whereupon it was clarified by the Settlement Authorities in the year 1981 that only Malba (superstructure) and machinery and not the land underneath the factory had been transferred to him. Consequently, P.T.D./T.O. Issued to Sardar Khan was amended so as to exclude therefrom the land, the site of the factory. On coming to know of this development, the respondents applied to the Revenue/Colony Authorities for sale or lease of the said land to them. District Collector by his order dated 28-12-1982 held that the ownership of the land in dispute comprising Khasra No,405 (old Khasra No,660) vested in the State and it was available for disposal by the Government. As regards the respondents" request for the sale or lease of this land, it was observed by the District Collector that their cases will be processed by E.A.C.
(Revenue) through A.C., Sheikhupura and that "if the applicants are found to be residing on pieces of land contained in Khasra No,405 then I would not have any objection to their sale to them on market rates by the Government." Feeling aggrieved, the appellants filed an appeal which was rejected by an Additional Commissioner (Revenue) vide order dated 26-6-1985. Their revision petition too, was dismissed by the Member, Board. Of Revenue vide order dated 17-12-1985 but with the observation that "if the property is still available and has not been allotted or leased out to any one or is not required to be reserved under any other Scheme and the petitioners are still in possession of it and the arrears of rent are paid, a case for its private sale in their favour be made out according to the policy of the Government". Respondents challenged this order in the High Court in its Constitutional jurisdiction making a grievance that the learned Member, Board of Revenue had passed the impugned order without hearing them. Writ petition was allowed and the case was remanded to the Member, Board of Revenue for fresh decision after hearing both the parties.
3. On remand, the learned Member affirmed the view of his predecessor and held that the area in dispute was part of Khasra No,405 (old Khasra No,660) and it always belonged to the Provincial Government and that "only Malba and Machinery of the factory was transferred to Sardar Khan, the mutation sanctioned for the land occupied by the factory in favour of Sardar Khan was rightly cancelled by the District Collector". As regards the disposal of the land in dispute, the learned Member observed "this will be in accordance with the Government Policy and both the parties are at liberty to apply to the District Collector for its lease/purchase in accordance with the existing instructions of the Colonies Department, Board of Revenue, Punjab". This was vide order dated 9-9- 1986.
4. Still dissatisfied, the appellants approached the High Court through Writ Petition No,2035 of 1987 which was dismissed by a learned Single Judge vide judgment dated 13-5-1992 holding that the learned Member, Board of Revenue after providing adequate opportunity of being heard to both the parties and considering the points raised before him, recorded a finding of fact that the land in dispute was State land which was on year to year lease with Ladha Mal, evacuee who had installed some machinery there and it was Malba and Machinery which was transferred to Sardar Khan. This finding, it was held, was not open to interference in writ jurisdiction. The order of the learned Member, Board of Revenue with reference to his observations regarding the disposal of the land in dispute was also found to be just and fair. Judgment of the High Court dismissing the appellants'
Writ Petition 2037-87 forms the subject-matter of Civil Appeal 765 of 1992.
5. It appears that when the respondents came to know that the land underneath the factory belonged to the Provincial Government and was not transferred to Sardar Khan, they stopped paying rent to him and as stated above, approached the authorities with a request to sell or lease out the land in dispute to them. Sardar Khan, therefore, brought ejectment petitions against the respondents on the ground, inter alia, of default in the payment of rent Allah Ditta (respondent in Civil Appeal No,760 of 1992) and Muhammad Tufail (respondent in Civil Appeal No,762 of 1992) resisted the ejectment petitions denying the relationship of landlord and tenant between the parties.
6. Learned Rent Controller after taking the evidence adduced by the parties and discussing it threadbare came to the conclusion that both Allah Ditta and Muhammad Tufail respondents were the tenants under Sardar Khan. It was held that Sardar Khan had inducted them into the property as his tenants and Allah Ditta had also executed the rent agreement in his favour. They could not, therefore, be permitted to deny the status of Sardar Khan and after his death, status of his legal heirs, the present appellants as landlords merely because the land under the demised premises was held to be owned by the State. A finding was accordingly recorded by the Rent Controller that the relationship of landlord and tenant existed between the parties and since the respondents had defualted in the payment of rent by denying the tenancy itself, they were liable to be ejected.
7. Allah Ditta and Muhammad Tufail respondents preferred two separate appeals against the orders of their ejectment. During the pendency of the appeals, they placed on record with the permission of the Appellate Court certified copies of the orders of Additional Commissioner dated 26-6-1985 and the Board of Revenue dated 9-9-1986 by way of additional evidence. They moved yet another application on 14-11-1987 for permission to produce notice of demand issued by the Chairman, Municipal Committee, Sheikhupura on 2-11-1987 and the receipt of payment of price and development charges. Their applications were rejected by the Additional District Judge on 23-11- 1987. The respondents filed further applications on 24-11-1987 for production of original documents viz. The demand notice and receipt of payment which, too, were rejected with the observation, inter alia, that they could not produce any notification to show that the property in dispute was declared as Katchi Abadi. Be that as it may, the learned Additional District Judge by two separate orders passed on 9-12-1987 dismissed the respondent's' appeals upholding the findings/orders of the Rent Controller with further observation that the superstructure of the premises in dispute admittedly belonged to Sardar Khan, the transferee of the premises and the respondents were admittedly occupying the same as tenants and as such they were estopped from pleading absence of relationship of landlord and tenant. In the view of the learned Additional District Judge, the dispute between the Provincial Government and Sardar Khan regarding the ownership of the land under the superstructure was not strictly relevant inasmuch as the respondents were in occupation of the godowns rented to diem by Sardar Khan.
8. Aggrieved of the orders of their ejectment, both the respondents approached the High Court by means of two separate Constitutional petitions (W.P. 652-88 by Muhammad Tufail respondent and Writ Petition 654 of 1988 by Allah Ditta respondent) which together with some other identical petitions were accepted by a learned Judge who quashed the ejectment orders on the short ground that during the pendency of the writ petitions, property in dispute had been declared to be a Katachi Abadi by the Provincial Government and the respondents had allegedly submitted applications for transfer of the same and had also paid the price in respect thereof. It was observed by the learned Judge that the effect of this subsequent development could not be examined for the first time in exercise of writ jurisdiction. Cases were, therefore, remitted to the Rent Controller for fresh disposal. This was vide orders dated 13-5-1992 assailed in Civil Appeals Nos.760 of 1992 and 762 of 1992.
9. We heard the learned counsel for the parties appearing in these cases at considerable length.
Learned counsel for the appellants was unable to point out any flaw in the findings recorded by the two learned Members of the Board of Revenue that the land underneath the factory was State land which was on year to year lease with the evacuee owner of the factory and that Sardar Khan, the predecessor of the appellants was transferred only Machinery and the Malba and not the State land. These undoubtedly are findings of fact which the learned Judge in the High Court rightly declined to interfere with. The learned Judge has also observed that the appellants had expressed their willingness to purchase the land in dispute from the State. This observation is borne out from the order of the learned Member, Board of Revenue dated 17-12-1985 which recommended the sale of the land to the appellants if it was still available and if they were in possession thereof. Even in the subsequent order dated 9-9-1986 passed by another learned Member, both the parties were allowed to apply to the District Collector for lease/purchase of the land in dispute. In the circumstances, the order of the learned Member, Board of Revenue impugned in writ petition was quite just and fair and it was rightly so held by the learned Judge. Learned counsel for the appellants when confronted with the afore-noted observations made by the learned Member, Board of Revenue, stated that he was quite satisfied with the impugned judgment of the High Court and would not press Civil Appeal No,765 of 1992 which is accordingly dismissed.
10. As regards the other two appeals arising out of the ejectment matters, suffice it to observe that the issue relating to the existence of relationship of landlord and tenant between the parties which is an issue of fact stood concluded by the concurrent findings recorded by the Rent Controller and the Appellate Authority (Additional District Judge) that both Allah Ditta and Muhammad Tufail respondents herein were inducted into the property in dispute as tenants by Sardar Khan and were, therefore, estopped from questioning the title of their landlord and denying the relationship of landlord and tenant between the parties. Needless to observe that the order of the respondents' ejectment passed by the Rent Controller and affirmed by the Additional District Judge on appeal could be interfered with in writ jurisdiction only if the findings forming the basis of the orders impugned were based on no evidence at all or some evidence having material bearing on the controversy had been misread or totally ignored by the Courts below or the impugned findings were recorded in violation/derogation of relevant statute or some other settled principle/rule of law. In. The instant cases, the orders of the Rent Controller and the Appellate Authority were not found to suffer from any such defect or infirmity as' would expose them to successful attack in writ jurisdiction but the learned Judge in the High Court quashed these orders and remanded the cases to the Rent Controller for fresh decision on the short ground that the property in possession of the respondents had been declared to be a 'Katchi Abadi' and the respondents were stated to have applied for its transfer and also paid the price thereof. Learned counsel for the appellants assailing the High Court's Order contended that there was no material before the learned Judge to hold that the property in dispute was declared a 'Katchi Abadi'. Learned counsel submitted that the respondents had not produced any Notification in support of their assertion either in the High Court or in the Courts below and it was for this reason that their applications to *duce demand notice allegedly issued to them by the Chairman of the Municipal Committee and the receipt of payment of price, by way of additional evidence were rejected by the Additional District Judge. Learned counsel further submitted that the respondents had procured the orders for deposit of the price through fraud and misrepresentation which were subsequently rescinded by the Chairman of the Municipal Committee and the respondents were ordered to withdraw the amount, if any, deposited by them. Learned counsel argued in the alternative that even if it be assumed that the property in dispute had been declared as Katchi Abadi, the case could still not be re-opened on that ground' and remanded to the Rent Controller who has no jurisdiction to examine the validity of any such Notification. We do not consider it necessary to go into the question whether the property in dispute has been declared as Katchi Abadi or not because it has been found as a fact by the Courts below that the respondents were inducted into the property as tenants by Sardar Khan, the predecessor of the appellants. They had also been paying rent to him. One of the respondents namely Allah Ditta had also executed the rdnt-deed in favour of Sardar Khan. Not only that, it was admitted even in the High Court during the pendnecy of the writ petitions that the petitioners therein were in fact put into possession as. Tenants by the landlord. That being so, it did not lie with the respondents to challenge the title of the appellants without first surrendering possession to them moreso in the presence of the ejectment orders passed against them by Courts of competent jurisdiction. Law is fairly well-settled that a tenant during the subsistence of the tenancy cannot question the title of his landlord as it existed at the commencement of the tenancy. He must first surrender the possession to the landlord and then may dispute his title. Refer Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1).
' In the aforesaid view of the matter, the impugned judgment/order of the High Court cannot be sustained and the same is accordingly set aside with the result that both the appeals (C.As.
Nos.760-92 and 762-92) are allowed but with no order as to costs. Civil Appeal No,765 of 1992 stands dismissed vide para.9 above.
' In view of the orders passed in Civil Appeals Nos.760-92 and 762-92, we are not inclined to proceed any further in contempt matters (Cr. Os. Nos.31 to 34 of 1994) which are accordingly dismissed.