This judgment shall decide Writ Petition No. 536 of 1987 as also Writ Petition No. 2430 of 1983 as they involve common points and were being taken up together.
2. The private respondents in these two cases filed petitions for ejectment of the petitioners in these cases from a portion of Property bearing No.S-55-R-1I, Chowk Lohari Gate, Lahore. The petitions were resisted by the petitioners, inter alia, on the ground that the said property belongs to the Evacuee Trust Property Board and thus, the title of the said private respondents was denied. For the later developments that had taken place in these cases I would not be referring in much details as to what happened in the ejectment proceedings suffice it to say that the ejectment orders were passed by the learned Rent Controller and affirmed by the learned Appellate Authority.
3. The position that emerges after hearing the learned counsel for the parties as also Ch. Fazal-e- Hussain, Advocate, representing the Evacuee Trust Property Board is that the Supreme Court of Pakistan in the case of Evacuee Trust Property Board, Lahore and another v. Syed Abdus Saleem and others (1990 SCM R 143) proceeded to allow the appeal of the said Board filed against the judgment of this Court reported as Syed Abdus Saleem and 153 others v. The Chairman, Evacuee Property Trust Board, Lahore and another (PLD 1975 Lahore 960). This judgment was also, questioned collaterally in the case of Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others (PLD 1991 SC 586) and was overruled. The position now is that the said Board has been declared to be the owner of the said property.
4. What needs to be determined in these cases is as to whether in the said admitted or otherwise established position could the petitioners in these cases be penalised for denying the title of their landlords i.e. The private respondents.
5. Mr. Asadullah Siddiqui, learned counsel for the petitioner in Writ Petition No. 536 of 1987 with reference to the cases of Province of Punjab through Education Secretary and another v. Haji Abdul Ghani (PLD 1985 SC 1) and K.S.M. Gurusawami Nadar v. N.G. Ranganathan (AIR 1954 Madras 402) argued that the denial in this case is not relatable to the commencement of the tenancy. On the other hand, the petitioners in these cases were constrained to deny the title because of intervention of the paramount owner i.e. The said Board which was ultimately declared to be owner of the property. According to the learned counsel, the principle of estoppel contained in Article 115 of Qanun-e-Shahadat Order, 1984 (section 116 of the Evidence Act, 1872) would not be applicable.
Ch. Muhammad Younas learned counsel for the private respondents in both the cases, however, vehemently argues with reference to the cases of Kalimullah v. Amin Hazin and others (1976 SCMR 77) and Muhammad Anwar through Legal representative v. Abdul Shakoor (1982 SCM R 1120) that notwithstanding the fact that the paramount title vests in the Board since it were his clients who had admittedly delivered possession to the petitioners, it is not permissible for them under the law to deny the title of the landlords. Ch. Fazal-e-Hussain, Advocate in both the cases appearing for Board which was ordered to be impleaded in these cases, states that the Board stands declared to be the owner of the property and that even prior to the acceptance of the appeal by the Supreme Court, at the leave granting stage the Board was authorised to receive rent from the occupants.
Further states that the Chairman had also granted a declaration in exercise of his powers under section 8 of the Evacuee Trust Property (Management & Disposal) Act, 1975 as to the said status of the property and had directed the petitioners to pay rent. According to him the Board recognises the petitioners in both the cases as their tenants and they are attorning to the Board. He also urges that the Courts below had no jurisdiction in view of the bar contained in the said Act.
6. I have examined the said judgments of the Supreme Court declaring the Board to be owner of the property as part of Sitla Mandar. Copy of the leave granting order in the said appeal is also on record as Annexure C to Writ Petition No. 536 of 1987. There is an order of Chairman. Evacuee Trust Property Board passed on 21-3-1979 on the application of the petitioner in Writ Petition No. 536 of 1987 granting a declaration that the property is Evacuee Trust subject to the decision of the Supreme Court and directed that the petitioners may maintain possession subject to regular I payment of rent. It may be stated here that the need to apply for the said declaration arose in view of the directions issued by a learned Division Bench of this Court in I.C.A. No. 148 of 1978 arising out of these very ejectment proceedings passed on 18-7-1978. Similarly in the other case also the matter had firstly been dealt with by the Custodian, Evacuee Property in the light of the said judgment in the case of Syed Abdus Saleem and others (PLD 1975 Lah. 960) which position now stands changed because of the acceptance of the appeal of the Board. In these above admitted legal and factual position prevailing on record, to my mind the judgment of the Supreme Court of Pakistan in the case of Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1) is squarely attracted. The Acting Chief Justice Muhammad Afzal Zullah (as his Lordship then was), wrote the leading opinion and thus observed at pages 8 and 9 of the said report:-- "The last argument of the learned counsel is based on the rule of estoppel contained in section 116 of Evidence Act. He is right that under the general law broadly speaking a tenant during the subsistence of the tenancy cannot question the title of the landlord as it stood at the commencement of the tenancy. If he desires to do so he must first surrender the possession to the landlord and then may dispute his title. If he fails to observe this role then under section 111(G)(2) of the Transfer of Property Act also, his right to tenancy itself would be forfeited on observance of certain procedural and other conditions. In so far as the general rule of estoppel vis-a--vis a tenant and landlord is concerned, it cannot have uncontrolled application to the cases to be determined under the special rent restriction laws. It will depend upon the facts and circumstances of each case.--- The denial is regarding the change of position by the said transfer. The principle and rule embodied in section 116 Evidence Act is not attracted in all cases of dispute over title between landlord and tenant. One exception as in this case is the denial vis-a-vis a stage after 'the beginning of tenancy'. Another condition is that the denial should be during the continuance of the tenancy and not after the determination thereof. Moreover, it should be of the landlord who 'let the tenant in' and not of airy other person.---The intervention of a 'paramount owner' also is involved in this case ltd when this happens, the rule of estoppel would not apply. Looked at from whatever angle, the argument of the learned counsel has no force."
7. Thus, the present case, to my mind, is fully covered by the said observations of the apex Court.
The denial of title is not a false or malicious denial but is referable to the intervention of a paramount owner allowed to charge rent of the property by the Supreme Court while granting it leave to appeal and then the appeal was ultimately accepted.
8. In the said cases of Kalimullah and Muhammad Anwaf relied upon by the learned counsel for the private respondents there was no intervention by the paramount owner whereas in the present case there was such an intervention and the tenants were in fact called upon to pay rent or to face legal proceedings. I confronted the learned counsel for the private respondents with the proposition that if the Board which is otherwise equipped with sufficient powers to get possession of its property as provisions of the Punjab Urban Rent Restriction Ordinance, 1959 are not applicable to such property and a tenant cannot claim the protection, and that it were to eject the petitioners and resume possession could his clients sue for delivery of possession. The answer obviously is in the negative.
9. For all that has been discussed above, both these writ petitions area allowed and the orders passed by the learned Rent Controller and the learned 'a Appellate Authority are declared to be without lawful authority and as such illegal and void. The result would be that the ejectment petitions filed by the private respondents, stand dismissed leaving the parties to bear heir own costs.