Brief facts out of which present second appeal arises are that the respondents filed an ejectment petition against the appellant qua the shop in question i.e. No.B-III-S-158-138 situated at Said Nagri Bazar, Gujranwala, on 7-12-1980 on the following grounds:-- (i)Default in the payment of rent.
(ii)Diminishing value and utility of the shop in-question.
(i.e)Personal requirement of the shop in question by the respondents/petitioner for the business of her son.
2. The respondents/petitioner filed ejectment petition through her son namely Muhammad Sabir.
The present appellant filed written reply of the ejectment petition controverting the allegations levelled in the ejectment petition and also denied the relationship of landlord and tenant between the parties. The learned Rent Controller out of pleadings of the parties, framed the following issues:-- Issues (i)Whether the relationship of landlord and tenant exists between the parties?
(i-A)Whether the application has not been properly made? OPR (i-B)Whether the application is premature? OPR (ii)Relief.
The learned Rent Controller decided Issue No.1-A in favour of appellant/respondent; whereas Issues Nos.1 and 1-B were decided in favour of present respondents/petitioner. The ejectment petition was rejected by the learned Rent Controller in view of findings on Issue No.1-A. The respondents/petitioner being aggrieved filed appeal before the learned Additional District Judge, Gujranwala, who accepted the appeal and reversed the findings on Issue No.1-A and also upheld the findings on Issues Nos.1 and 1-B. The appellant being aggrieved filed this appeal which was fixed before this Court on 14-1-1996. The operation of the impugned ejectment order was suspended subject to deposit of rent at the rate of Rs.500 per month w.e.f January, 1996. The rent to be deposited before the 15th of each succeeding month vide order dated 14-1-1996 passed in C.M.
No.1-C of 1996. The respondents/ petitioner filed C.M. No.2-C of 1997 with the prayer that the appellant has not complied with the order of deposit of rent passed by this Court on 14-1-1996, therefore, the defence of appellant is liable to be struck of and the appeal be dismissed. The aforesaid application was accepted by this Court vide order dated 8-5-1998 and the appeal was dismissed. The appellant being aggrieved filed C.P.L.A. No.741-L of 1998 before the Honourable Supreme Court of Pakistan which was converted into an appeal and the aforesaid order of this Court was set aside and the case was remanded to this Court to decide afresh vide judgment dated 16-10-1998.
3. The learned counsel of the appellant submits that the First Appellate Court wrongly and illegally allowed the appeal. He further submits that the First Appellate Court did not appreciate the evidence on record by setting aside the findings recorded by the learned Rent Controller on Issue No. 1-A. He further submits that parties are also litigants on the civil side qua the title of the property in question which was decided by the Courts below and civil revision petition is pending adjudication before this Court. He further submits that the appellant had taken shop in question on rent from Haji Rehmatullah, original owner of the shop in question and after his death in 1977, the appellant never paid any rent to Mst. Rehmat Bibi and instead, has been paying rent to Haji Rehmat--ullah's widow Mst. Ghulam Fatima, who appeared as R.W.-1 and deposed that she has been receiving rent from the appellant after the death of her husband and that Mst.Rehmat Bibi was the daughter of Mst. Maryam (another were of Haji Rehmatullah) from her previous husband.
He further submits that Mst. Rehmat Bibi had filed a civil suit which was pending at the time of deciding the ejectment appeal out of which this appeal arises in which she claimed that Haji 'Rehmatullah was Shia and she was his daughter as such sole surviving heir of Haji Rehmatullah and that Mst. Ghulam Fatima had been divorced by Haji Rehmatullah, is disputed in the litigation between the legal heirs of original owner and also in the administration suit brought by other heirs of Haji Rehmatullah. The learned First Appellate Court, therefore, decided the case against the appellant by misreading and non --reading of the evidence on record.
4. The learned counsel of the respondents submits that the appellant denied the relationship of landlord and tenant between the parties. The learned Rent Controller had given findings of facts qua relationship, in favour of present respondents/petitioner which was upheld by the First Appellate Court. The appellant did not file any appeal against the findings of the learned Rent Controller qua relationship of landlord and tenant between the parties before any higher forum, therefore, the findings of the learned Rent Controller, is final against the appellant. He further submits that both the Courts below have given concurrent findings of facts against the appellant with regard to relationship of landlord and tenant between the parties, therefore, this appeal has no force. Both the Courts below have given concurrent findings of facts after proper appreciation of evidence on record, therefore the First Appellate Court was justified in law to pass the ejectment order against the 1 appellant.
5. I have given, my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. It is admitted fact that the appellant I denied the relationship of landlord and tenant between the parties in the proceedings before the learned Rent Controller in para. No.4 of the written reply which is to the following' effect:-- It is also admitted fact that the learned Rent --Controller had given findings in favour of the present respondents/petitioner in the following terms after proper appreciation of evidence on record:-- "It has been established from the documentary as well as oral evidence that the relationship of landlord and tenant between the parties exists and this issue is accordingly decided in favour of the petitioner and against the respondent."
It is pertinent to mention here that the appellant did not file any appeal against these findings before any higher forum, therefore, the aforesaid findings are final against the appellant and the appellant has no lawful authority to agitate the aforesaid findings in! Second appeal. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in "Muhammad Mobin Siddiqui's case (1982 SCMR 233). It is also admitted fact that both the Courts below have given concurrent findings of facts against the present respondents/petitioner qua the existence of relationship of landlord and tenant between the parties which was denied by the appellant, therefore, the judgment of First Appellate Court is in accordance with law, as per principle laid down by the superior Courts in the following judgments:-- "Nasir Ahmad v. Nazar Muhammad" (PLD 1974 Lahore 489)
"Muhammad Bux, etc. v. Ghulam Rasool" (PLD 1982 Karachi 28)
"Muhammad Bashir v. Ghulam Hussain" (1998 CLC 1085)
"Muhammad Aware, etc. v. Mst. Balqees etc." (1984 CLC 1506)
Haji Abdul Hameed v. Ch. Muhammad Islam (1983 CLC 970)
It is well settled that the interference in the concurrent finding of fact can be made by the High Court only when the evidence is misread and finding is based on surmises and conjectures; or based on inadmissible evidence; or there existed an error or defect in the procedure which may possibly have, introduced an error or defect in the decision on merits. In the present case, the learned counsel of the appellant failed to point out, any material error or illegality committed by both the Courts below qua findings on Issue No. 1-A.
1999 SCMR 832) and in Civil Appeals Nos.1627 to 1652, decided on 4-1-2001 titled "Al-Karim (Pvt.) v.
East and West Insurance Company Ltd." and hand over a vacant possession of the shop in question to the respondents till 29-1-2004.