MUHAMMAD ANWAR Versus ABDUL HAMEED
MUHAMMAD NOOR MESKANZAI, J .--- By this common judgment, I intend to dispose of F.A.O Nos.52,53,54 and 55 of 2006 filed by appellant after dismissal of eviction applications Nos.1, 2, 3 and 4 of 2005 by Civil Judge-V, Quetta on 31st July, 2007.
2. The facts of the instant appeals are that appellant filed eviction applications against the respondents in respect of the property bearing Khewat and Khatooni No.136/183 and Khasra Nos.111, 123, 113, 114 and 115 comprising upon five Kitas, measuring 3663 sq. ft. situated at Mohal and Mouza Ward No.22, Tappa Urban, Tehsil & District, Quetta. It was further stated in the application that the brother of applicant namely Asmatullah has been expired and the appellant being his legal heir is entitled to initiate the present eviction proceedings. It is further case of the appellant that he had shifted to United States of America for the purpose of earning of his livelihood and to get educated his children for higher qualification and to upgrade their standard in the society. It is also case of appellant that he and his brother had rented out the properties in question i.e. Property No.3-14/5 situated at Tahir Khan Road, Quetta to Abdul Hameed son of Abdul Majeed (late) (respondent in FAO No.52 of 2006) monthly rental of Rs.15, Property No.3-14/5 Tahir Khan Road, Quetta to Syed Shahab Uddin (respondent in FAO 53 of 2006) at a monthly rental of Rs.20, Property No.3-14/5 Tahir Khan Road, Quetta to Haji Muhammad Qasim (Respondent in FAO No.54 of 2006) at a monthly rental of Rs.16 and Property No.3-14/5 (i) to Muhammad Hashim and Asghar Khan (respondents in FAO No.55 of 2006) at a monthly rental of Rs.20, who were making payment of rent to the appellant through valid receipts and paid the same till April, 1983 and thereafter, they failed to pay or tender the rent to appellant, therefore; they committed wilful default in depositing the rent in time. It is further averred in the eviction application that the properties in question were rented out to the respondents for the purpose of residential purpose, which were houses, however; when appellant left for United States, in his absence respondents misused the property and the portion of the same were converted from residential into commercial without permission and consent of appellant. It is averred in the eviction application that the properties in question have also been damaged and the same are now in dilapidated condition and nature whereof has been entirely changed. The appellant also took the ground of personal bona fide use and occupation of the properties in question, as according to him he along with his family members are now intended to re-shift to Pakistan/Quetta and he having no other suitable property for his residential purpose, thus the properties in question are required to be demolished and re-constructed as houses.
3. The eviction application was contested by respondents by filing their respective rejoinders to the applications, wherein; they raised various legal objections and particularly maintainability of applications on the ground of jurisdiction. It was stated in the written statements/rejoinders that in fact an open plot was rented out to them, upon which they had raised construction for their residential purpose, as such; the learned Rent Controller/trial Court has got no jurisdiction to adjudicate upon the matter. The ground for personal bona fide use and occupation was also seriously disputed on the ground that the applicant is enjoying a well-settled life at United States of America and he does not need the properties in question with good faith. Out of the pleadings of the parties, the learned trial Court/Rent Controller framed following respective issues:---
Issues in FAO No.52 of 2006.
(1) Whether the respondent had committed default from 1999 and onward?
(2) Whether the property in question is required to the applicant for demolishing construction for the same for his residential purpose?
(3) Whether the property in question is required to the applicant for his personal bona fide use and occupation for demolishing and the construction the same for residential purpose?
(4) Relief?
Issues in FAO No.53 of 2006.
(1) Whether the eviction application is not maintainable in view of PLO (A) of rejoinder?
(2) Whether the house in question is required to the applicant for his personal bona fide use for demolishing construction the same for the purpose of residential house?
(3) Whether the respondent had committed default from 1999 and onward?
(4) Relief?
Issues in FAO No.54 of 2006.
(1) Whether open land underneath was leased out in the year 1953/54 by the applicant to late father of respondents?
(2) Whether the respondents have committed wilful default since April, 1983?
(3) Whether the premises in question is required for personal bona fide use and occupation to applicant?
(4) Relief?
Issues in FAO No.55 of 2006.
(1) Whether the land in question was rented out to the respondent as white land for residential purpose?
(2) Whether the respondent has committed wilful default?
(3) Whether the house in question is required to the applicant for his personal bona fide use for demolishing and constructing the same for the purpose of residential house?
(4) Relief?
After framing of issues, both the parties produced their respective evidence and also got recorded their statements.
4. At the end of trial, the Rent Controller allowed the eviction applications vide its order dated 27th February, 2004 and directed the respondents to hand over vacant possession to the appellant within a period of four months of passing of that order.
5. The respondents assailed the said order before this Court and this Court vide order dated 6th October, 2004 set aside the order dated 27th February, 2004 and remanded the applications with the directions as under:---
"In such circumstances I deem it appropriate to remand the applications to the learned Civil Judge-V/Rent Controller Quetta for reframing of the issues taking into consideration the averments made in the application and rejoinder and thereafter the parties are to be afforded opportunity of hearing which Includes leading of additional evidence if they so desire and thereafter to decide the applications afresh on its merits without being influenced by the earlier findings/orders."
6. After remand, the case was registered, notices were issued to the parties and in compliance of the order passed by this Court, following additional issues were framed in each application:---
Additional Issues in Eviction Application No.1 of 2005
(1) Whether the respondent is owner of superstructure of property in question?
(2) Whether the land in question does not fall within the definition of "Rented land" and this Court has no jurisdiction to proceed the matter?
Additional Issues in Eviction Application No.2 of 2005
(1) Whether the open land underneath was leased out in the year 1953-54 by the applicant to respondent?
(2) Whether the respondent is owner of superstructure of property in question?
(3) whether the land in question does not fall within the definition of "Rented land" and this Court has no jurisdiction to proceed the matter?
Additional Issues in Eviction Application No.3 of 2005
(1) Whether the respondent is owner of the superstructure of property in question?
(2) Whether the land in question does not fall within the definition of "Rented land" and this Court has no jurisdiction to proceed the matter?
Additional Issues in Eviction Application No.4 of 2005
(1) Whether the open land underneath was leased out in the year 1953-54 to the late father of respondent?
(2) Whether the respondent is owner of superstructure of property in question?
(3) Whether the land in question does not fall within the definition of "Rented Land" and this Court has no jurisdiction?
7. After framing of additional issues, the parties were asked to produce their evidence, if they so desire. It seems that after remand, appellant got recorded statement of his newly-appointed attorney namely Malik Muhammad Nasir Kasi, however; respondents did not examine any R.Ws. The record reveals that the appellant filed an application seeking permission to produce A.W., but same was rejected vide order dated 18th July, 2006 passed by Civil Judge-V, Quetta on the ground that several opportunities were afforded to the appellant, but he failed to examine/produce any A.W., so application was treated as belated and as such; rejected.
8. The trial Court at the strength of material available on record dismissed all the four applications by means of impugned judgments mainly with reference to issue No.1, which is reproduced as under:---
Whether the land in question does not fall within the definition of "Rented Land and this Court has no jurisdiction to proceed the matter?
9. The trial Court while dilating upon issue No.1 framed in Eviction Application No.1 of 2005 dismissed the applications and thereafter arrived at the conclusion that the matter does not fall within the jurisdiction of Rent Controller, hence he resolved issue No.1 in favour of respondents and thereby other issues were also resolved in favour of respondents.
10. Mr. Sunder Dass, learned counsel for appellant submitted that the trial Court has committed material irregularity by dismissing the application on the ground of jurisdiction. He submitted that in fact no other land was given to respondents. He next submitted that residential rooms were given to respondents/their predecessor in interest and therefore, conclusions arrived at are perverse and contrary to record. He submitted that burden was upon respondents, but they failed to discharge the onus by producing confidence inspiring evidence. He further submitted that appellant is admittedly owner and landlord of the properties in question and the documentary evidence has proved this fact and as well as the construction of residential rooms on the plot and on the contrary, respondents utterly failed to produce any such documents, ocular evidence and thereby they have failed to substantiate their version. He argued that the impugned judgments are perverse, improper and result of misreading and non-reading of evidence available on record. He finally submitted that the properties in-question are not white land, but in fact were residential houses, so the matter was entirely within the domain and seisen of Rent Controller. To substantiate his version, the learned counsel relied upon the following authorities:---
PLD 1969 Lah. page 12,
PLD 1973 SC page 218
On the other hand, Mr. M. Farrukh Malik and Mr. Ejaz Sawati, learned counsel respondents submitted that the matter was absolutely beyond the jurisdiction of Rent Controller, therefore; the Rent Controller rightly concluded that the matter does not fall within its jurisdiction. To supplement their arguments, they relied upon following authorities:
PLD 1973 Quetta page 28,
PLD 1993 Quetta page 84
11. I have considered the arguments so forwarded and perused the record minutely and patiently. The crucial issue, which is additional issue No.2 in Eviction Application No.1, was third in eviction application No.2, third in Eviction Application No.3 and was third in eviction application No.4, but the Rent Controller dilating upon the matter, dealing with issue No.1 without making any reference to any application, number dealt with the jurisdiction, whereas; a perusal of all four applications reveals that in all these applications issue No.1 so framed does not pertain to jurisdiction, but the Rent Controller after considering the evidence of both the parties concluded as under:---
"The contention of the respondents of the white land and non-jurisdiction of Court, has been considered in juxtaposition with applicants' evidence and hold that the respondents have succeeded to bring sufficient evidence on record for establishing their contention about the getting the white land on rent basis from applicant for residential purpose. So in circumstances, it is held without any fear of contradiction that the property in question does not fall within the definition of Rented Ordinance, 1959 and the issue is, therefore, decided in affirmative."
12. It is painful to note that the Rent Controller overlooked the nature of issue. The Rent Controller while evaluating the evidence and forming opinion considered the evidence of the parties in juxtaposition and thereby concluded that the issue No. 1 stands proved and as such; was resolved in affirmative. The manner of resolving this issue and the procedure adopted by trial Court is highly illegal, unwarranted, in utter disregard and flagrant violation of established principle of law and procedure. The findings are contrary to record. It was bounden duty of respondents to have discharged this burden through production of impartial, reliable and convincing evidence. The witnesses produced by respondents in these cases are entirely partisan and highly interested, but the trial Court failed to take into account that the affidavits of the witnesses so filed by respondents in these cases are parties against appellant/applicant and cannot qualify the standard of witness. The trial Court while resolving issue No.1 relied upon following RWs:---
In FAO No.52 of 2006 Muhammad Anwar v. Abdul Hameed.
(1) Syed Shahab-ud-Din son of Syed Khalo
(2) Syed Abdul Qayyum son of Haji Muhammad Qasim
RW-Shahab-ud-Din is respondent in FAO No.53 of 2006, whereas Syed Abdul Qayyum is respondent in FAO No.54 of 2006.
In FAO No.53 of 2006 Muhammad Anwar v. Syed Shahbuddin.
(1) Abdul Hameed son of Abdul Ahad
(2) Abdul Qayyum son of Haji Muhammad Qasim
Abdul Hameed is respondent in FAO No.52 of 2006, whereas Abdul Qayyum is respondent No.3 in FAO No.54 of 2006.
In FAO No.54 of 2006 Muhammad Anwar v. Haji Syed Abdul Wasay and others
(1) Syed Shahab-ud-Din son of Syed Khalo
(2) Abdul Hameed son of Abdul Ahad
Shahab-ud-Din is party in FAO No.53 of 2006, whereas Syed Abdul Hameed is respondent in FAO No.52 of 2006.
In FAO No.55 of 2006
(1) Syed Shahab-ud-Din son of Syed Khalo
(2) Syed Muhammad Hashim son of Syed Muhammad Aslam.
Syed Shahab-ud-Din is party in FAO No.53 of 2006, whereas Muhammad Hashim is allegedly purchaser of superstructure in the year, 1990 against a sum of Rs.150,000.
13. According to statement of Syed Muhammad Hashim, he has sold the superstructure on 7th November, 2000 to one Asghar Khan son of Sala Gul against sum of Rs.750,000, though it appears from the statement, no document or agreement has been produced; neither there is any document available on record nor the same has been exhibited. The trial Court while resolving the issue committed various illegalities; firstly statement of all RWs were inadmissible, because they were party in same eviction applications and were trying to take benefit of their own statements by appearing as witnesses in the same proceedings and in the same court simultaneously. There is no cavil with the legal preposition that evidence of such witness, who is party in eviction proceedings is inadmissible against landlord. In this regard, I am supported by the judgment of honourable apex Court reported in PLD 1991 SC 645, wherein it has been observed as under:---
----S.13---Tenant producing another tenant as his witness against landlord in proof of his averments in written statement--Evidentiary value of---Such witness having admitted grievance against landlord, his evidence was kept out of consideration.
So all ocular evidences produced by respondents are hereby declared inadmissible, as such rejected.
14. Now we are left to resolve the issue on the basis of material available on record. As far as Appeals Nos.52, 53, 54 and 55 of 2006 are concerned, respondents have produced following documents through RW-3 Exh.R/1 to Exh.R/3. In these documents in the column of rent wherein particulars of remittance are required to be mentioned as " ﮐﺮﺍﻴﻪﺒﺎﺒﺖﺴﻔﯿﺪﺍﺮﺍﺿﻰ " whereas, in FAO No.53 of 2006 RW-3 produced Exh.R/1 to Exh.R/5. Exh.R/1 pertains to rents from January, 2003 to October, 2003. Here it has been mentioned that in this column " ﮐﺮﺍﻴﻪﺒﺎﺒﺖﺴﻔﯿﺪﺍﺮﺍﺿﻰ " whereas; rest of the Exh.R/2 to Exh.R/5 right from 1992 up to 2002 herein the column 3 of challan where particulars of remittance are required to be mentioned. It is mentioned there as
In FAO No.54 of 2006, although Exh.R/2 and Exh.R/3 covers the rent of disputed property from the year, 1992 to 1995 and in the third column where full particulars were required to be mentioned. It is mentioned as under:
Exh.R/3 covers the period from 1989 to 1992
Exh.R/4 covers the period from 1989".
Whereas Exh.R.5 covering the period pertaining to She year September, 2002 to June, 2003 "( ﮐﺮﺍﻴﻪﺒﺎﺒﺖﺴﻔﯿﺪﺍﺮﺍﺿﻰ )" whereas; Exh.R/6 covering the rents from 1996 to 2002, but herein relevant column it is mentioned
In F.A.O. No.55 of 2006 the rents deposited by respondents vide Exh.R/1 covers the period in the third colunm requiring furnishing particulars, is mentioned as
The rents deposited perhaps from the year 1989 up to 2003, in all these receipts against column No.3 rents have been deposited for room as reproduced hereinabove. As far as Appeal No.55 of 2006, according to statement of respondent No.1 the room in question has been purchased by respondent No.1 in the year, 1990 from Naik Muhammad, whereas; Muhammad Hashim has sold these superstructures to respondent No.2 in year 2000. It may not be out of place to mention here that there is no written deed available on record with regard to any transaction i.e. sale of superstructure covering subject-matter of Appeal No.55 of 2006. Statements of both respondents do not show that the transaction between respondents and anyone else has been entered with permission and consent of landlord, so the trial Court did not bother to take note and to see as to whether respondents in FAO No.55 of 2006 were not liable to be ejected/evicted from the premises on the sole ground of sub-letting of premises without consent and permission of appellant, therefore; dealing with the case in FAO No.55 of 2006, the respondents have got no locus standi to resist eviction application and as such, additional issue No.2 in FAO No.55 of 2006 stands resolved against respondents and it is held that the matter falls within the jurisdiction of Rent Controller and the issue has wrongly been decided by Rent Controller. As far as issue No.1 regarding ownership of superstructure is concerned, respondents failed to produce any evidence substantiating the fact that the superstructure, if any; was built with consent and permission of landlord and consequently the same was if purchased or sold, then whether the purchase/sale was with consent and permission of appellant. There is no evidence available on record to prove these facts, therefore; if superstructure at all is there, which has been built illegally without permission and consent of landlord, the same cannot create any hindrance in the way of succession of application.
Whereas on the contrary appellant has produced Exh.A/1, which fully establishes that the property-subject-matter of these proceedings has been shown godown, house and shop. Since at the strength of evidence available on record, there was no occasion for the trial Court to have reached the conclusion that the property in question was a white land and thereby jurisdiction of trial Court stands ousted. The burden of issue was entirely and solely on respondents, but respondents have failed to discharge the burden and to prove their version by producing of any documentary evidence or ocular. As far as the ocular evidence is concerned, as observed hereinabove, ocular statements stand rejected and inadmissible, as far as the documentary evidence produced by respondents is concerned, except in FAO No.52 of 2006, 'where in the relevant column, it has been mentioned that the rent with regard to a white land i.e. empty/open plot, but rest of the rents so deposited are against rooms, except one receipt, which mentions it a plot. At the strength of these documents, it can safely be concluded that in fact rents were being deposited against rooms, which purely justifies; rather absolutely proves the basic version of appellant, as he claims that the property in question was consisting upon rooms/seven type house. It is not only strange but astonishing that in presence of such overwhelming documents, how for the trial Court could have concluded that the property in question was a white land, which was rented out to respondents, who constructed upon the same on their own expenses and with consent of landlord. In fact while forming any opinion in positivity of issue, then so many other points emerge, crop up and require determination; for instance no evidence produced by respondents to prove the factum of construction with consent of landlord, second permission and approval of site plan from Municipal Corporation particularly after dismantling of earlier construction in consequence of earthquake or heavy rains in the year, 1991 in the area. As claimed by respondents, subsequent construction with permission/consent of landlord, the trial Court has not touched these points nor there is any evidence available on record to prove the above-mentioned points; rather statements of respondents are sufficient to negate the version of respondents; for instance Abdul Hameed in his statement at page No.271 of paper book in reply to cross says: however; in reply to another question, he stated that (almost 40 years has been passed). In the gist of statement, it is stated that as far as Eviction Applications Nos.1,2,3 and 4 (FAO Nos.52,53, 54 and 55 of 2006) are concerned, the documentary evidence already produced have been discussed above, now let see the statement of respondent Abdul Hameed in FAO No.52 of 2006 filed his affidavit stated that disputed property has been taken by his father situated at Tahir Khan Road, Quetta. He stated that he has seen the property probably in the year 1952-53; Muhammad Anwar gave a white land to his father Qasim and Shahab-ud-Din on rent for residential purpose, where they raised construction over it. He stated that they used to pay rent of white land to Muhammad Anwar and at the time of transaction, there was no written agreement. He stated that his father with consent of Muhammad Anwar raised construction, which became dilapidated in consequence of rain in the year, 1991. Since construction was kachha, they with consent of Muhammad Anwar constructed the same on their own expenses and became the owner of superstructure and thereafter Muhammad Anwar and Asmatullah went to America and rents were being paid to a lady, who was the wife of Asmatullah, but no receipts were issued by her on the basis of understanding they used to pay the rents of white land to her since 1983 and thereafter they were depositing the rents through Bank. In FAO No.53 of 2006 the statement of Syed Shahab-ud-Din, who while filing his affidavit stated that in the year, 1952-53, Muhammad Anwar gave the disputed property, which was a white land, to him, Qasim and Anwar on rent. They raised construction on white land, which was given for residential purpose. They used to pay rents to Muhammad Anwar. At the time of transaction, there was no written agreement. On verbal consent of Anwar, they raised construction, which became dilapidated in the year 1990-91 on account of rain, since the same was kachha construction, they with consent of Anwar on their own expenses again raised construction and as such; they became owner of superstructure. Anwar and Asmatullah went to America. Rent was being paid to a lady i.e. wife of Asmatullah, who did not issue any receipt, but on account of understanding and confidence, they paid the rents of white land up to the year, 1983 thereafter the said lady died and they are depositing the rents in the Bank and the present applications are based on mala fide. While Syed Shahab-ud-Din appearing as RW-1 in FAO No.52 of 2006 stated in reply to cross at page No. 241 of paper book
In this case Abdul Qayyum filed his affidavit as attorney and perhaps that statement is verbatim of other statements recorded by other respondents. The statements of respondents either by themselves or through attorney are to the effect that there was no written agreement at the time of initial transaction and they have raised construction by their own and with consent of appellant, but they failed to satisfy the conscious of the Court through production of impartial, reliable, convincing and confidence inspiring evidence that in fact appellant has consented for reconstruction; secondly the land was a white land and the reply by the attorney Abdul Qayyum in FAO No.54 of 2006 at page No.249 of paper book stated as under:---
Statements recorded by the respondents are self-contradictory, conflicting, inconsistent, unreliable and the same cannot lend support to the version of respondents, nor for that matter can he based for resolving issue of jurisdiction in respective eviction applications,, whereby; the issue was resolved against the appellant; in my considered opinion there is clear misreading and non-reading of evidence and hence conclusions drawn regarding issue of jurisdiction by the trial Court are perverse, absurd and illegal, therefore; on the basis of material available on record, the respondents failed to prove that they were given a white piece of land and they have raised construction on their own expenses with consent and permission of landlord, so the findings on issue No.1 are set aside. The second irregularity committed by trial Court while resolving issue of jurisdiction was that according to trial Court, it has considered in juxtaposition the contentions of respondents with the evidence of appellant. The trial Court has forgotten the fact that the burden of issue was upon respondents and they were bound to discharge the same at the strength of their own evidence. The appellant has produced the document of title i.e. revenue entries vide Exh.A/A-1. Receipts produced by respondents and most of the receipts are to the effect that respondents have paid the rent of respective rooms and most of the receipts showing the deposition of rents pertaining to the rooms consisting upon period prior to initiation of eviction proceedings, therefore; I am satisfied that the respondents have failed to prove issue of jurisdiction. While resolving issue No.2, the trial Court decided it against the appellant by stating that AWs did not depose a single word regarding default of payment of rent nor any other evidence was available to support this issue, as the burden was upon appellant to discharge, but the statement of appellant and the affidavit filed by AWs was not at all taken into consideration. A perusal of affidavits clearly shows that the AWs have stated that the rent up to 1983 has been paid and thereafter no rent has been paid, as such; respondents have proved themselves defaulter, therefore; the findings on this issue are contrary to record and result of misreading and non-reading of evidence. It is not only strange but astonishing as well, respondents in their statements claimed to have obtained consent of appellant while carrying out reconstruction in the year, 1990-91, but from the other side they claim that since appellant was not traceable, therefore; under compelling circumstances they have been depositing rent with Bank from 1983 and onwards. Appellant by his own statement and production of AWs has proved that respondents were defaulter and they just on pretext claimed to have paid the rent, therefore; believing the statement of appellant and his AWs, issue No.2 is resolved in affirmative. As regard issue No.3, this issue was wrongly decided and the evidence was illegally discussed. There is no cavil with the fact that the appellant is a citizen of Pakistan, he has got each and every legal, moral and constitutional right to return from United States, to settle here at Quetta i.e. his native place. Mere presumption of well settlement in United States, neither can be ground for depriving of appellant to enjoy his ancestral property nor even availability of certain other property can be made a ground for disentitling him of relief or doubting his bona fide. It is the idiosyncrasy, sweet will and prerogative of owner to chose and propose, which one of the properties, he prefers to live in, therefore; this issue was wrongly decided, hence the findings on this issue are set aside and it is held that the premises in question are required for personal bona fide use and occupation of appellant thereby he is entitled to have his property. Here it may not be out of place to mention here that legally the statement of landlord is sufficient to prove issue in question; by holding so I am fortified by the judgment reported in CLC 2003 Pesh. 1121, the relevant observations are reproduced herein below:---
"West Pakistan Urban Rent Restriction Ordinance, 1959 was an adequate safeguard against abuse of provisions of S.13(3)(a)(ii) of the Ordinance by the landlord---Where the statement of the landlord was confidence-inspiring and no material was on the record to detract from the veracity, such statement was to be given full weight and not to be treated as statement of an interested person---Findings of Trial Court against the tenant on the issues were supported by evidence on record and no misreading or non-reading of evidence had been pointed out---Question of bona fide requirement was purely a question of fact and where two Courts had concurrently found that the premises was required by the landlord bona fide or personal use, High Court declined interference in second appeal."
So issue No.3 is resolved in affirmative. In the light of above discussion, the arguments of learned counsel for respondents are liable to fail. There is not an iota of evidence available on record to justify the stand and stance taken by respondents. The authorities cited at bar by learned counsel for respondents do not lend support to their contention as facts are distinguishable. Both the citations relied upon by the counsel for respondents are distinguishable, as the appellant is clear in his stand that initially property in the shape of constructed rooms existing thereon was rented out to respondents, so at no stage of time it had been case of the appellant that any land was rented out to respondents. As observed earlier, respondents have failed to produce any evidence to substantiate their claim so put forth in the reapplications, hence under these circumstances, the authorities so cited at bar are inapplicable to the facts of the case. Another aspect requires attention is that in fact originally there are as many as twelve (12) issues framed in all the four cases and after remanded as ten (10) additional issues. Trial Court has dilated only four issues while leaving the rest issues unattended. From one angle, it was a case of remand, but I am not inclined to remand the cases, because as the cases pertained to Rent matter, parties have faced agony of protracted trial for a, period of more than 4- 1 /2 - 5 years, and secondly both the parties were satisfied with the course adopted by the trial Court. Appellant in the memo of appeal did not raise any objection nor during the course of arguments any such objection directly or indirectly was raised. Same is the position with respondents, neither any cross objection was filed nor the procedure so adopted by trial Court was ever objected; rather respondents requested for maintaining the judgment, meaning thereby the parties have acquiesced with procedure so adopted and have waived the right of objection if any. As discussed above, all the foregoing issues have been resolved against respondents, after appreciation of entire documentary and ocular evidence available on record; appellant is found entitled to have the relief by enjoying his ancestral property. During the course of arguments, in reply to the query by the Court, the learned counsel for respondents candidly stated that in case issue of jurisdiction is resolved against respondents, then respondents have got no moral, ethical and legal justification and right to retain the property further. This courage on the part of learned counsel for respondents is highly appreciable. Appellant is found entitled for the relief claimed for of possession through eviction of respondents from disputed property.
Resultantly the impugned judgments passed by Civil Judge-V/Rent Controller, Quetta dated 31-7-2007 are hereby set aside and appeals are allowed with costs through out, as such; respondents are directed to vacate the above mentioned disputed property within a period of one month.
M.H./13/Q Appeals allowed.