This revision petition is directed against the judgment/decree, dated 29-5-1988 passed by the learned District Judge, Chakwal reversing the judgment/decree of the trial Court, dated 2-11-1987.
2. The facts giving rise to this petition are that the plaintiff/respondent filed a suit on 1-6-1982 for ejectment from the shop in dispute situate in Thana Road, Choa Saidan Shah and for recovery of Rs,1,020 as rent due. It was stated that the petitioner/defendant obtained the shop on rent vide rent note, dated 1-11-1979 at the monthly rent of Rs,60. The defendant had committed default for the period from 1-1-1981 to 31-5-1982. The suit was resisted on the ground that the plaintiff/respondent was not the owner of the shop and the matter stands decided in the case titled "Fateh Muhammad v. Ayesha Bibi" by the learned District Judge, vide judgment, dated 3-3-1981. Thus the title of the plaintiff/respondent to the shop was denied. On the pleadings of the parties, the following issues were framed:--
(1) Whether the plaintiff is owner of the property in dispute? OPP.
(2) Whether the plaintiff is entitled to decree for eviction against the defendant? OPP.
(3) Whether the plaintiff is entitled to recover arrears of rent, if so, to what extent? OPP.
(4) Whether the defendant is entitled to special costs? OPD.
(4-A) Whether the suit is not maintainable in its present form? OPD.
(5) Relief.
The learned trial Court vide its judgments, dated 2-11-1987 dismissed the suit of the plaintiff. On appeal the learned District Judge, vide his judgment, dated 29-5-1988 reversed the decree of the trial Court and decree the suit of the plaintiff.
It is pertinent to mention here that West Pakistan Urban Rent Restriction Ordinance, 1959 is not applicable and the area was not an "Urban Area".
3. The learned counsel for the petitioner contended that the learned District Judge, has misapplied the law applicable to the facts of the case. He submitted that the ' shop in dispute was allotted on 22-3-1965 Exh.P.1, by Tehsildar Pind Dadankhan to Fateh Muhammad being a property situate' in rural area but the same was cancelled by the Additional Settlement Commissioner (Land) Jhelum on 30-10-1967 Exh.D.2. Thereafter, the shop was allotted to Ghulam Rasool. In the wake of the cancellation order, dated 30-10-1967 Exh.D.2, and its subsequent allotment to Ghulam Rasool on 13- 1-1971 Exh.D.7 the alleged lease came to an end. He further submitted that the matter between the parties was brought to rest vide judgment, dated 3-3-1981 of the learned Additional. District Judge, Exh.D.3, wherein it is clearly stated that the order of the learned Additional Settlement Commissioner, dated 30-10-1967 Exh.D.2, clinched the issue and the plaintiff/respondent had ceased to be the transferee of the shop. Conversely, the learned counsel for the respondent argued that the order, dated 30-10-1967 was void and liable to be ignored as the name had been passed behind the back of the respondent. Reliance was placed on 2000 CLC 1374. It was submitted that once the property is transferred the Settlement Authorities become functus officio.
Reliance was placed on 1976 SCM R 95. He urged that once the tenant is inducted by the landlord, he cannot question his title without first surrendering the possession of the premises to the landlord. The learned counsel stated that the property in dispute is different then the property in earlier suit.
4. I have gone through the judgments and the evidence on record. The transfer of the shop was cancelled on 30-10-1967 Exh.D.2, by the Additional Settlement Commissioner (Land) Jhelum and the same was allotted to Ghulam Rasool vide order dated 13-1-1971 Exh.D.7. The plaintiff/ respondent brought a suit challenging the same which ended before the learned Additional District Judge, Jhelum vide judgment Exh.D.3. The allotment in favour of Ghulam Rasool was kept intact, and this clinched the matter. This judgment is relevant under Article 57 of the Qanun-e-Shahadat Order, 1984. The contention of the learned counsel for the respondent that the cancellation of the shop from the name of the respondent was a void order has no force, as the same was challenged by a civil suit which was dismissed, and appeal before the learned Additional District Judge, also failed on 3-3-1981 Exh. D.3. Similarly the argument of the learned counsel that the tenant must surrender the possession to the landlord before questioning his title is not tenable. The provisions of West Pakistan Rent Restriction Ordinance, 1959 are not applicable to the case in hand, as such, there was no relationship of landlord and tenant between the parties. After the extinguishment of the title of the plaintiff/respondent, his right and interest in the property came to an end. The petitioner/ defendant was not under an obligation to surrender the premises to him.
The plaintiff/petitioner did not take the plea of identification of the suit property before the Courts below. This plea cannot be raised for the first time in this revision petition. The learned District Judge, Chakwal completely misdirected himself as to the question of law and fact involved in the case. He exercised the jurisdiction which did not vest him under the law.
5. For what has been stated above, this revision petition is allowed, the judgment/ decree of the learned District Judge, Chakwal, dated 29-5-1988 is set aside and that of the learned Civil Judge, dated 2-11-1987, is restored. The parties to bear their own costs.