This revision petition arises out of a civil suit filed by the petitioner on 13-6-1984 in the Court of the Senior Civil Judge, Lahore for ejectment of Maulvi Rahmat Ali Khan, respondent No.2 from a Godown forming part of the petitioner's property measuring 11 Kanals, 3 Marlas and 154 sq.Ft. The petitioner claims that the godown measuring 24' x 27' was rented out to respondent No.2 at a monthly rent of Rs.200 through rent note Exh.P.4. The respondent has been paying rent till October, 1979 but thereafter became a wilful defaulter. The suit was resisted by respondent No.2, who filed written statement claiming therein that the disputed godown was not part of the property leased out or transferred to the petitioner. On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether this Court has got no jurisdiction to try the case? O.P.D.
(2) Whether the Trust Property Board is a necessary party in the present suit? O.P.D.
(3) Whether the suit has not been filed by a duly authorised person? O. P. D.
(4) Whether the suit is not property valued for the purposes of court-fee and jurisdiction? O.P.D.
(5) Whether the plaintiff is entitled to the possession of the suit property and also recovery of arrears of rent? O.P.P.
(6) Relief After recording oral as well as documentary evidence of the parties the trial Court decided all the issues in favour of the petitioner and decreed the suit vide judgment and decree, dated 9-7-1988.
Respondent No.2 filed an appeal which was accepted by the learned Additional District Judge vide his judgment and decree, dated 4-4-1989. Hence the present revision petition.
2. Before proceeding further it will be advantageous to mention that earlier the petitioner had sought eviction of respondent No.2 through the Rent Controller. The Rent Controller dismissed the, ejectment petition but on an appeal preferred by respondent No.2 the decision of the Rent Controller was reversed by the learned Additional District Judge vide his order, dated 7-9-1982.
Against the Appellate judgment respondent No.2 filed Writ Petition No.3843 of 1982 which came up for hearing before my learned brother Manzoor Hussain Sial, J. (as he then was), who vide his judgment, dated 3-10-1983 held that the disputed property was evacuee trust property and was exempt from operation of the provisions of West Pakistan Urban Rent Restriction Ordinance. The petitioner did not challenge this judgment before any higher legal forum which attained finality.
3. The petitioner's learned counsel strenuously urged that the petitioner is right holder of the disputed property and was competent to seek eviction of respondent No.2 from the disputed godown; that the godown bearing Khasra No.1784/1 is a part of the property originally leased out in favour of the Madirssa; that the petitioner had inducted respondent No.2 in possession of the godown as a tenant on payment of monthly rent at the rate of Rs.200; that respondent No.2 was debarred from denying the petitioner's title as held in the cases of:--
(i) Mst. Jai kaur v. Labhu and others AIR 1922 Lah. 163,
(ii) District Board, Tippera v. Sarafat Ali and others AIR 1941 Cal. 408, (i.e) Hafiz Muzaffar Ahmad Khan v. Dr. Abdul Haq and another 1968 SCM R 793,
(iv) Ashutosh Basak and others v. S.M. Rahmatullah and others 1970 SCM R 386,
(v) Muhammad Islam Khan v. Cantonment Board, Kohat 1982 SCM R 1056,
(vi) Province of Punjab through Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1,
(vii) Madirssa Darul Uloom Al-Baqiat-ul-Salehat Registered v., The Additional District Judge PLD 1992 SC 401.
He further submitted that a landlord need not be owner of the rented premises as held in the case of Mirza Bashir Ahmad v. Abdul Karim 1976 SCM R 417; that there .Is sound documentary evidence on the record to prove that respondent No.2 is a tenant under the petitioner and has admitted his tenancy (in this connection he has referred to document Exhs.PA to P.14), that denial of land--lord's title results in forfeiture of tenancy as held in the case of Ashutosh Basak supra and Sh.
Muhammad Ashraf and another v. Sub -Major (Retd.) Mir Badar Din and others 1993 SCM R 2323, that the Appellate Court had acted illegally and with material irregularity in reversing the judgment of the trial Court without considering the above-referred documentary evidence which had a direct bearing on the fate of the case. On the other hand, learned counsel for respondent No.2 urged that godown in possession of the petitioner is not a part of the property allotted to the petitioner Madrisa; that Khasra No.1784/1 was acquired by the Lahore Improvement Trust as is evident from the document Exh.D.3 (running into 9 pages); that it was no longer available for being leased out or allotted to the petitioner; that the property in occupation of respondent No.2 is the one left out by L.D.A. After construction of the approach road; that the said property neither belongs to the Settlement Department nor the Auqaf Department; that it vests in Lahore Improvement Trust which has not taken any proceedings against respondent No.2; that at one time the petitioner had claimed to be lawful owner of the property, whereupon respondent No.2 bona fidely executed rent note Exh.P.4 in his favour in the year 1975; that the rent note pertained to a different property, possession whereof was never delivered to respondent No.2; that the godown in possession of respondent No.2 was constructed by the respondent over a vacant place; that the learned Additional District Judge had rightly accepted the appeal filed by respondent No.4 and reversed the judgment of the trial Court for cogent reasons.
4. The first question which requires examination is whether the petitioner can seek eviction of the respondent from the suit property through a civil suit. This question is intimately linked with the other question whether the disputed property is evacuee trust property and is exempt from application of the rent laws. The material on the record shows that the petitioner had obtained land measuring 11 Kanals 3, Marlas, 154 sq. Ft. From the Evacuee Trust Property Board on lease through lease deed Exh.P.3. Thereafter, "proprietary rights" were granted to the petitioner on 13-1- 1987 (Annexure "AA") whereby the petitioner was authorized to use the property and rent out a portion of the same. A bare reading of the agreement for transfer of rights shows that primarily the petitioner had been given right to use manage and maintain the property with a clear stipulation that it will not have the right to sell transfer or otherwise alienate or dispose of the same to any other person. The petitioner Madrissa is allowed to utilize the property for the purposes specified in the deed failing which the transfer was liable to be revoked and the property reverted to the Punjab Auqaf Department for onward reversion to the Improvement Trust under condition No.4. Therefore, notwithstanding the execution of the abovereferred agreement the character of the property has not changed. It remained evacuee trust property. The transfer essentially relates to possessory rights and not the title in favour of the petitioner. Therefore, as already held by my learned brother Manzoor Hussain Sial, J. In Writ Petition No.3843 of 1982, decided on 3-10-1983, the rent laws are not applicable to the disputed property and the petitioner could seek the respondent's eviction through a Civil Court.
5. The petitioner's learned counsel has referred to Waqfnama, dated 29-6-1989 (Annexure "CC") made by Sh. Asghar Mumtaz, Manager, Auqaf in favour of Qazi Qamar-ud-Din/Madrissa Darul Uloom regarding Waqf of the same property which was earlier shown to have been transferred in favour of the managing committee vide transfer deed dated 13-1-1987. Apparently, Waqfnama appears to be redundant because the earlier documents were neither cancelled nor declared to be illegal. Whatever rights were conferred on the basis of the document dated 13-1-1987 could be exercised by the managing committee. The execution of the subsequent document appears to be an exercise in futility. On the basis of Waqfnama Mutation No.27503 was attested in favour of the Madrissa. However, this mutation being based on the Waqfnama does not carry any value.
6. The documentary evidence on the record shows that rent agreement Exh.P.4 was executed between the parties.
While appearing in his own defence as D.W.3 Rahmat Ali admitted in cross-examination that he had executed rent agreement with an undertaking to pay Rs.200 per month as rent and that it bore his signatures. However, he stated that neither Khasra No. 1805 nor 1784 was mentioned in the agreement. This makes no difference because the area of the rented premises i.e. 24' x 27' and its location on the eastern corner adjacent to the road side were mentioned therein. In the demarcation report Exh.P.13, it was mentioned that shops of Rehmat Ali, respondent No.2, Khurshid and Abdus Salam were situated in Khasra No.1784/1. Respondent No.2 mainly tried to show that the property in his possession was acquired by the Improvement Trust in 1962 and that it could not have been leased out to the petitioner. This point was not raised in the written statement filed by respondent No.2. Therefore, he could not be allowed to agitate the said point or lead any evidence in support of ~8 the same. Moreover, the Improvement Trust never came forward to claim the disputed property. In the written statement, respondent No.2 had urged that the question whether he was a tenant under the petitioner Madrissa or the Evacuee Trust Property, Lahore, was pending before the Deputy Administrator, therefore, the Civil Court was debarred from evicting him. The said controversy was finally decided by the Deputy Administrator vide order, dated 24-7-1985 Exh.P.11 holding therein that respondent No.2 was a tenant tinder the petitioner. There are a number of other documents which also show that respondent No.2 is a tenant under the petitioner. In the record of Excise and Taxation Officer pertaining to the year 1980-81 (Exh.P.5), the petitioner is shown as an owner of the disputed property and respondent No.2 as a tenant at the rate of Rs.200 per month. The Deputy Administrator had got the disputed property demarcated. It was noted in the demarcation report Exh.P.13 that shop of Rahmat Ali respondent No.2 and two other tenants namely Khurshid and Abdus Salam were situated in Khasra No.1784/1. Both the parties had accepted the demarcation report to be correct. This fact is admitted by respondent N0.2, in his statement before the Court as D.W.3. Therefore, from the oral as well as' documentary evidence it is fully established that respondent No.2 was inducted into possession of the property as a tenant by the petitioner. In the year 1975, the petitioner Madrissa was in possession of the disputed property and through a written agreement had allowed respondent IVo.2 to use the premises as a tenant. The legitimacy of the petitioner's possession was not questioned either by the Auqaf Department or the Lahore Improvement Trust. In the year 1977, the property was leased out to the Madrissa by the Evacuee Trust Property Board and subsequently possessory rights were transferred to the petitioner. After having been inducted into possession by the petitioner, respondent No.2 could not legitimately deny the petitioner's title. In this connection, the petitioner's learned counsel has placed reliance on the case of the petitioner Madrissa against another tenant (Khurshid) reported as Madrissa Darul Uloom Al-Baqiat-ul--Salehat Registered v. The Additional District Judge (Appellate Court) and another PLD 1992 SC 401. The Honourable Supreme Court was pleased to hold:-- "In the present case the respondent having admitted that he was inducted as a tenant under a written agreement, cannot challenge the title of the appellant without first surrendering the possession to him."
7. The appellate Court has held that the lease of the property was made in favour of the petitioner in the year 1977 for a period of 10 years and that the said period expired in the year 1987, therefore, respondent No.2 could not be evicted at the instance of the petitioner. I am afraid, the said finding is not sustainable. The period of 10 years was originally fixed in the lease made in favour of the Madressa in the year 1977 but subsequently, another agreement was made on 13-1-1987, whereby possessory rights were transferred to the petitioner without fixing any period. This is evident from the agreement Annexure "AA" which was allowed to be brought on record vide order, dated 11-1- 1993 passed on Civil Miscellaneous No.1/C of 1993. Therefore, the petitioner had competently filed the suit during subsistence of his possessory rights including the right to rent out the premises.
Respondent No.2 did not pay any rent to the petitioner since November, 1979, therefore, the trial Court had rightly held on issue No.5 that the petitioner was entitled to get possession of the suit property from respondent No.2 and also recover the arrears of rent. Contrary findings of the appellate Court on issue No.5 are set aside and those of the trial Court maintained.
8. For the foregoing discussion, it is held that the impugned judgment and decree, dated 4-4-1989 have been passed by the Appellate Court illegally and with material irregularity. Therefore, the revision petition is accepted, the impugned judgment and decree of the Appellate Court are set aside and those of the trial Court, dated 9-7-1988 restored, leaving the parties to bear to their own costs.