' SHAHZAD AKBAR KHAN, J.--- Through this petition the petitioners Ibrar Khan and Muhammad Ishfaq have questioned the correctness and legality of the judgment, dated 15-12-2000 passed by respondent No,4 i.e, Additional District Judge-II, Mardan.
2. The petitioners had filed an ejectment application against the respondents 1 to 3 for the eviction of the suit shop alongwith the godown detail fully incorporated in the heading of their application.
The application was resisted by the respondents and pursuant to the issues framed out of the pleadings of the parties the rival evidence was recorded in support of the contentions of the parties. The learned Rent Controller allowed the application and ordered the eviction of the respondents from the suit property alongwith the recovery of rent vide his order, dated 31-3-2000.
Respondent No,1 felt aggrieved of the order of eviction and thus preferred an Appeal bearing No,28/13 of 2000 which was heard and decided by the learned Additional District Judge-II, Mardan on 15-12-2000. In the impugned judgment the learned Additional District Judge held that the respondent (appellant) has spent an amount of Rs,1,50,000 on the construction raised by him, therefore, he is entitled to the compensation thereof. He remanded the case to the learned lower Court with the direction to appoint a Local Commissioner to be directed to assess the market value of the improvement made on the vacant site i.e, on the construction of the godown and to decide the case afresh in the light of the report of the Commissioner.
3. The learned counsel for the petitioners has forcefully argued that the learned Additional District Judge transgressed his powers in holding that the respondent was entitled to the compensation of the cost of construction. He argued that the respondent never obtained the consent of the petitioners qua the construction for which he was held entitled to compensation by the learned Appellate Court. He argued that no evidence is forthcoming on the record to substantiate the finding of the learned Additional District Judge and as such the same is liable to be struck off being extraneous to the record.
4. On the other hand the learned counsel appearing on behalf of the respondents has argued that the construction was raised by the respondent without there being any objection from the side of the petitioners and as such the implied consent of the petitioners was available to the respondent giving him entitlement to the cost of construction in case of his eviction from the suit property and as such the order of the learned Additional District Judge is not open to exception.
5. We have eagerly considered the submissions of the learned counsel for the parties and have gone through the record. Admittedly the respondent had not obtained any permission in writing from the petitioners. No other cogent independent evidence was adduced to establish that the consent of the petitioners was obtained. Merely the oral statement of the respondent is not sufficient to hold that he had raised the construction with the consent of the petitioners. Even if the consent of the petitioners is presumed qua the construction by the respondent, it would not give any entitlement to the respondent for the recovery of amount spent thereon. There is no such evidence to show that the petitioners had accepted the liability of making payment to the respondent for the construction raised by the respondent. In this respect wisdom is sought from the judgment of the august Supreme Court reported as Qazi. Muhammad Qadir Khan v. Molvi Ghulam Mohyuddin and another 1970 SCM R 449, wherein it was observed thus:- ' " It was next contended by the learned counsel for the petitioner that the petitioner's eviction has been ordered without providing any compensation to the petitioner in respect of the godown constructed by him on the plot of land let out to him. The learned counsel was unable to satisfy us that there was any provision in the Rent Control Ordinance under which any such order could be passed by the Rent Controller. In any case, it is open to the petitioner to ventilate his grievance in this behalf in separate proceedings against the respondents. There is no force in the petition which is dismissed."
6. Since the learned counsel for the petitioners has expressed his consent before us that the respondent can take away his material of construction. 'Therefore, we pass an order that the respondent would be at liberty to remove the material of construction that he claims. This petition is, therefore, allowed and the vacant possession of the suit property shall be handed over to the petitioners within two months. No order as to costs.