AMIN and otherss vs Hafiz GHULAM MUHAMMAD and others

' SYED JAMSHED ALI, J:--This judgment will dispose of CPs Nos.84-Q and 105-Q of 2005. Both these petitions arise out of an ejectment matter. The first is by the tenants while the second is by the Assistant Administrator, Evacuee Trust Property Board (E.T.P.B.), who is claiming rival title qua respondent No,1, the landlord. Both petitions seek leave to appeal against the consolidated judgment dated 19-8-2005 of the learned Baluchistan High Court, Quetta. The facts, briefly stated, are as under.

2. The property in dispute comprises five shops and a godown on a plot of land which was provisionally transferred to respondent No,1 on 15-9-1960 under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The respondent-landlord raised construction thereon and inducted the petitioners in the first petition as tenants under a written rent note. On 12-12-1991, on the application of the Assistant Administrator, Evacuee Trust Property Board (E.T.P.B.), the Chairman of the said Board declared the said property as evacuee trust, and directed cancellation of the PTO issued in favour of the respondent. On a revision petition of the respondent-landlord, the Federal Government, vide order dated 30-3-1994, remanded the case. However, even after the remand, the Chairman vide his order dated 13-12-1995 maintained his earlier order. He however, recommended outright sale of the property in dispute in favour of the respondent.

3. Pursuant to the recommendation aforesaid, the Federal Government directed sale of the property through auction giving first right of refusal to the respondent-landlord. Not contended with the aforesaid order, respondent filed a suit for declaration in which the plaint was rejected on 28-9-2001 and his appeal was dismissed on 27-2-2002. The learned High Court on revision petition of the land-lord, vide judgment dated 10-10-2003, remanded the case to the trial Court against which leave was granted by this Court in C.Ps. No,213-Q and 218-Q of 2003 which are pending as C.As Nos.226 & 227 of 2004, before this Court.

4. However, as a result of the order dated 12-12-1991, the tenants withheld payment of rent to the respondent-landlord and started paying it to the E.T. P.B. On which he filed an ejectment petition.

The petitioners-tenants denied the relationship of the landlord and tenant on which issues were framed and after recording the evidence, the learned Rent Controller directed ejectment of the petitioners-tenants from the premises in dispute vide judgment dated 10-9-2004. FAOs Nos.41 and 43 of 2004 filed respectively by the tenants and the Assistant Administrator, E.T.P.B., were dismissed vide judgment dated 19-8-2005, impugned in these petitions. Ejectment of the petitioners was ordered on the ground of default with the observation that the petitioners were estopped to deny the relationship of landlord and tenant.

5. Mr. Tariq Mehmood, Advocate Supreme Court who represents the petitioners-tenants, submits that the principle of estoppel contemplated by Article 115 of the Qanun-e-Shandat, 1984 (section 116 of the Evidence Act) was not applicable in the facts and circumstances of the case. The tenants were only estopped to deny the relationship during the subsistence of the tenancy and not when relationship of landlord and tenants comes to an end by operation of law or intervention of the Courtas happened in this case. He vehemently relied upon the order dated 13-12-1995 of the Chairman, E.T.P.B. Who declared the property as evacuee trust with the result that the PTO, on the basis of which the respondent had claimed to be the landlord stood nullified and, therefore, the learned Courts below wrongly applied Article 115 of the Qanun-eShahadat, 1984. In support of his submission, he relied on an unreported judgment of the learned Peshawar High Court in Writ.

Petition No,1332 of 2003 decided on 11-10-2005, Kumar Krishna Prosad Lal Singha Deo Vs. Baraboni Coal Concern, Ltd., and others (AIR 1937 Privy Council 251), Izhar ul Hassan Rizvi v. Mian Abdul Rahman and others (1992 SCM R 1352). He also relied upon the judgments noted by the learned Peshawar High Court in the above said case. He next contended that as a result of order dated 12- 12-1991, the Chairman, E.T.P.B., the petitioners were threatened with the eviction from the premises in dispute by the E.T.P.B. And were called upon to deposit the rent and, therefore, in the circumstances, payment of rent by them to the real owner did not at least constitute contumacious and willful default. He lastly submitted that dispute as to title between E.T.P.B. And the respondents is pending before this Court and it will be appropriate that these petitions are heard along with appeals Nos.226 and 227 of 2004.

6. Mr. Rashid Awan, Advocate appearing for the petitioners in C.P. No,84 of 2005 adopted the arguments of Mr. Tariq Mehmood, Advocate Supreme Court. The petitioner appeared in person. He, however, did not make any submission.

7. The submissions made have been considered. The case of the respondent-landlord that he had raised construction on the vacant plot was admitted by petitioners No,1 and 2 while the other petitioners denied it for want of knowledge. Both the set of petitioners, however, admitted that they were inducted in the premises as tenants by respondent No,1 and have been paying rent to him till 12-12-1991 on which date the PTO issued in his favour was ordered to be cancelled. Another admitted fact is that dispute as to title between the E.T.P.B. And respondent No,1 is sub judice before this Court. We have also noticed that according to letter dated 27-10-1998, Secretary, E.T.P.B., Government of Pakistan, right of first refusal has been given to the respondent and in this letter he has been described as "sitting allotted/occupant". Thus, his right to hold the property has been fully recognized. These admitted facts have been noted by us to examine whether the principle of Article 115 of the Qanun-e-Shandat, 1984, was or was not attracted to the peculiar facts and circumstances of the case.

8. The learned High Court while dismissing the FAOs, relied on a judgment of this Court in Madrissa Darul Uloom Al-Baqiat-ul Salehat registered v. The Additional District Judge (Appellate Court) and another(PLD 1992 SC 401). In the said case Madrissa Dar-ul-Aloom, the petitioner before this Court, had obtained eleven kanals of land on lease from E.T.P.B., had raised construction thereon and then inducted tenants. On eviction petition against a tenant he denied relationship on the ground that the land belonged to the Lahore Development Authority. The learned Rent Controller ordered ejectment which was reversed by the learned Additional District Judge and maintained by the High Court. This Court interfered with the finding that the tenant could not repudiate the title of the landlord without surrendering possession.

9. The other judgments of this Court are also being noted hereunder. The first is Kalimullah v. Amin Hazin and others (1976 SCMR 77). In the said case the title of the landlord was denied on the ground that the property was evacuee, the principle of section 116 of Evidence Act, was applied. We will also like to add that the judgment of this Court in Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1) was considered in this case. In Syed Izhar ul Hassan Rizvi supra the tenant had purchased a portion of the property and had become co-sharer. This Court, relied on Kumar Krishna Prosad Lal Singha Deo supra and held that the principle of estoppel was not applicable and the ejectment order passed by the High Court was set aside. It may be noted that this was a case in which tenant had set up his own title as co-sharer to deny the title of the landlord. This judgment was rendered by two honourable Judges of this Court. In Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCM R 913) which is a judgment by a five learned member Bench, the principle of estoppel was applied against a tenant who had denied title of the landlord and had set up the plea of becoming a co-sharer. The other important case to be noted is Munjri Khan, etc. v. Faridoon, etc. (1995 SCM R 678). This involved a case of ejectment form agricultural land. The land was allotted to one Abdul Lateef, AJ&K refugee, which was sold in favour of the landlord in this case who had inducted the tenants on the land in dispute. The tenant denied tenancy on the ground that the land stood transferred in favour of Shad Muhammad Khan and others, therefore, the landlords title had extinguished to be as such. The principle underlying Article 115 was considered at great length and, inter alia, the Privy Council case in Kumar Krishna Prosad Lal Singha Deo supra was also considered. Besides, the following judgments were also considered:- - Ahman Shah Muhammad v. Emperor (AIR 1937 Lahore 243)

Krupasighu Routra and another v. Puma Chandra Misra and others (AIR 1973 Orissa 44)

Muhammad Anwer through his legal representatives v. AbdulShakoor (1982 SCM R 1120)

' Messrs Muhammad Ismail & Bros. V. Malik Muhammad Tahir and others (1981 SCM R 139)

' Ismail Brothers v. Keval Ram (PLD 1981 SC 545)and the tenant was not allowed to repudiate the title of the landlord. This is also a case in which the tenant had set up some body else's titled. In Muhammad Idrees v. Mst. Safia Begum and others (1986 SCMR 795), the tenant had denied the title of the landlord by contending that the transfer in favour of the displaced person from whom the landlord had purchased had been cancelled and the house was transferred in his favour. The tenant was not allowed to repudiate the title of the landlord.

10. The judgment of the learned Peshawar High Court, inter alia, referred to two judgments of the Lahore High Court which took the view that a tenant is estopped to deny landlord's title only during the subsistence of the tenancy. These are Zafar Iqbal and others v. A.D.C. (G) and others (1996 M LD 1543) and Sarbland and 19 others v. Ghulam Fatima and 6 others (1996 M LD 948). In the case of Zafar Iqbal supra fraud and forgery in setting up by the title by the land lord was involved while in the case of Sarbland and 19 others, denial was by a co-sharer. However, none of the judgments of this Court, noted above was considered.

11. Perusal of the above judgments shows that in case of denial of landlord's title in both the situations i,e, when the tenant sets up his own title or when he sets up somebody else's title, the principle of Article 115 of the Qanun-e-Shahadat Order was applied and the tenant was ordered to be ejected. The reason therefore, is not far to seek. In all the judgments, dominant feature has been that in ejectment matters, the question of title is not relevant. We may like to add that if a dispute arises between the two rival contenders for title to the property, the tenant has no locus standi to intervene and it is for the appropriate Court to resolve the dispute. We have also noted some peculiar features of this case in the paragraph 7 ante. Undisputedly, the petitioners-tenants were inducted in the premises after the superstructure had been raised by the landlord and in the letter dated 27-10-1998 of the Federal Government respondent-landlord has been accepted as "allottee/occupant". Not only by virtue of induction in the property by the respondent but also on the basis of the facts noted above there was absolutely no justification for the petitioners-tenants to repudiate the title of the landlord. It appears that by paying rent to the E.T.P.B. The tenants are making a ground ultimately to claim sale of the property in their favour. Thus, we hold that principle of Article 115 of the Qanun-e-Shahadat Order was applicable to the facts and circumstances of the case and unless the petitioners had surrendered possession, they could not repudiate landlord's title.

12. The second plea of the learned counsel for the petitioners that the default was not contumacious has no merit either. In such a situation, the plea might have been acceptable had the tenants deposited the rent in the Court and then filed an inter-pleader suit which was not done.

Therefore, we are not persuaded to accept the plea that the default was not deliberate. As far as the last contention is concerned, we have also considered it and feel that since the question of title is not relevant to adjudicate an ejectment petition, the prayer to hear these petitions and Civil Appeals Nos.226 &227 of 2004 together has no force. As far as C.P. No,105-Q/2005 is concerned, it has no merit because as far as the matter of ejectment is concerned, the position of the petitioner is not better than that of an intervener.

13. Resultantly, both the petitions fail and are dismissed.