JAMES GILL Versus DURREH SHAHWAR
This appeal arises from the order dated 2‑4‑1987 of the learned Additional Rent Controller, Lahore Cantt. whereby the appellant James Gill was ordered to be evicted from House No.E‑93, Fateh Abad, Lahore Cantt. after availing the brace period of two months.
2. The respondent‑lady Mst. Durreh Shehwar sought the appellant's eviction stating that she having rented this house under the foot of a written rent note dated 10‑9‑1983 (Exh. P.3) at the rate of Rs.60 per month, had committed default in payment thereof with effect from October, 1983; that she need it for her personal use having no other house; and that he had materially damaged it. She explained that even earlier she had brought a similar petition against him, but the same was compromised whereby he executed the aforementioned rent deed undertaking to make the payment of rent in time. She alleged that despite renewal of obligation in the course of previous litigation, the appellant failed to pay the rent with effect from 1‑1‑1984.
3. The application was resisted denying relationship of landlord and tenant between the parties. The appellant's stand in the written statement was that he had constructed the house at his own expense on a site measuring in all 31 Marlas, belonging to the Cantonment Board to the extent of 2 Marlas and the rest 11 Marlas to one Dr. Abdul Hafeez from whom he had obtained it. He denied execution of the rent deed maintaining that it was forged and that the very petition did not lie.
4. The following preliminary issue was framed:‑
"Whether the relationship of landlord and tenant exists between the parties? O.P.P.
The trial Court held it against the appellant finding an inconsistency between the version made by him in the written statement and the one bolstered up during evidence. While in the written statement his contention was that he himself built this house on a site partly belonging to Dr. Abdul Hafeez and partly to the Cantonment Board, but in the cross‑examination as R.W. 3 he deposed instead that the entire site underneath the house belonged to Cantonment Board. He produced no record to show that such a valuable site situate in Lahore Cantt. was at all given to him by the Board. Indeed it was unheard of if he could raise a building on site belonging to the Board without any proper allotment or transfer. Secondly, he did not show in the written statement if the house in dispute was signified by No.E‑96/2, but in evidence he stated so. He disclosed that this number was allotted for his house in 1980 or 1981, but did not so state in his ,previous litigation. He relied upon receipts of paying tax Exhs. R.1 and R.2, but these related to the years 1985‑86, i.e. much after the present petition was filed and made no averment thereabout in the written statement. Apparently these were procured in the course of pendency of the petition. If he got the number of house allotted in 1980 or 1981, there should have been such receipts of those years as well. Failure to pay such tax during those years was clearly suggestive of the fact that he was not its owner. He conceded that earlier he was occupying a house belonging to the respondent‑lady, which he claimed to have had vacated in 1980‑81, i.e. after the institution of the previous ejectment petition. This version rang untrue because later he admitted that he had appeared in the Court of Mr. Dost Muhammad, Rent Controller, where a compromise was struck to the effect that he would vacate the house within two months and also pay the arrears. He changed his testimony to state that in fact he had vacated the respondent's house before she had brought the ejectment petition. This inconsistency on his cart speaks for itself. He could not produce any receipt of payment of arrears of rent nor of delivery of possession of the house to the respondent. Further he conceded that on 29‑9‑1983 he had signed (the compromise) before the Rent Controller. This admission manifestly related to the Rent Note relied upon by the respondent where under he had agreed to pay the arrears. and was allowed to continue to occupy the house.
5. His case was that he himself constructed the house at an expense of Rs.24,099 vide receipt Exh. F.3. Gulzar Anthony R.W.2 showed that he had constructed it for him as Contractor. No construction is allowable in Cantonment area without proper sanction and approval of the Building Plan. In the absence of such documentary evidence the contention was nothing but ruse.
6. The difference as to the number of house was not much material as at times, such changes occur in the context of assessment of taxes, etc. To say that the house in dispute was different from E‑93 mentioned in the petition was not entertainable. Exh. P.2 was its plan produced by the respondent‑lady. Her husband, P.W.1 proved her title by referring to a registered sale‑deed. It was a site belonging to the same Dr. Abdul Hafeez from whom she had purchased it by this document. He proved also the agreement Exh. P.3 which the appellant sought to mince by denying as also admitting to have signed it on 29‑3‑1983. An objection was raised that no marginal witness to prove this agreement was examined. The appellant in many words conceded it and, therefore, the need to examine any marginal witness thereof was obviated. It was made a part of the judicial record and its copy per se was admissible. Further the provisions of the Evidence Act did not meticulously apply to these proceedings.
6. For all these reasons, there is no substance in the appeal and the same is dismissed' with costs.
H _ R T _ I.1‑23/L Appeal dismissed.