ASGHAR ALI Versus RENT CONTROLLER, LAHORE

This is a constitutional petition filed by Mst. Ashraf Khatoon and others, the legal representatives of one Syed Asghar Ali Shah against the order of the Rent Controller, Lahore, and that of an Additional District Judge of Lahore dated 1‑2‑1978 and 5‑6‑1980 respectively holding that they had no jurisdiction to deal with the eviction petition filed by Syed Asghar Ali Shah. Through this constitution petition & declaration is sought that these two orders be held to be illegal and without lawful authority and that the eviction petition filed by their predecessor may be remanded back to the Rent Controller Lahore, for decision on the remaining issues.

2. The brief facts of the case are that Syed Asghar Ali Shah, the predecessor‑in‑interest of the present petitioners, filed an eviction petition in October 1976 against Ghulam Ali, respondent No.3, for his eviction from the disputed shop, on the basis that he had committed default in the payment of its rent after the execution of the rent deed. Default was pleaded for the period 20‑7‑1975 to 20‑8‑1976. Respondent No.3 in his written statement filed in November, 1976, claimed that the land under which disputed shop was situated. had been in his possession since the last nine year, that he had constructed the disputed shop from his own money and that he had also secured electricity connection for the said shop in his own name'. He also stated that in June 1975 Syed Asghar All Shah had started harassing him by posing that he was the owner of the land underneath the shop and that he should either vacate or remove his construction therefrom or execute a rent deed in his favour. Accordingly, Syed Asghar Ali Shah under pressure secured a rent deed from him on 20‑7‑1975 and he paid rent to him till August 1976, but in October 1976 the officials or the Evacuee Trust Property Board came to the site and he came to .know that the land belonged to the Evacuee Trust Property Board and they were surveying it so that proprietary rights could be granted to those who were in possession of the same and that he then realised that Syed Asghar Ali Shah had tried to push him into securing the rent deed. Accordingly, thereafter he had stopped paying rent to Syed Asghar Ali Shah, as he was not the owner of the property. On the pleadings of the parties, the Rent Controller framed seven issues. Both the parties led their evidence on all the issues. HDwever, the Rent Controller, Lahore, respondent No.l, by his order dated 1‑2=1978, only decided issue No.l against the petitioner and dismissed the petition. Syed Asghar Ali Shah then preferred an appeal, which was also dismissed by a learned Additional District Judge of Lahore on. 5‑10‑1980. Being aggrieved by the findings of both the Courts below, Syed Asghar Ali Shah filed a writ petition (W.P. 11829 of 1980), which is now before me for disposal. The legal representatives of Syed Asghar Ali Shah are now the petitioners before me.

3. The only question on which this writ petition was admitted was to consider whether the property in dispute vested in and was being administered by the Evacuee Trust Property Board and whether there was proper evidence before both the lower Courts to justify such finding. With the assistance of the learned counsel, I have read the evidence on the record. Muhammad Ishaq PW 1 in cross‑examination admitted that the disputed shop was in "Rahmat Colony which was a Katchi Abadi in respect of which the Government had passed orders for its allotment. He denied knowledge that survey had been conducted in favour of Ghulam All, tenant. He could not state when Syed Asghar Ali Shah had constructed the shop in which Ghulam Ali‑was the occupant. Syed Asghar Ali Shah P.W.2, admitted in examination in‑chief that the disputed shop was located in Rahmat Colony. In cross‑examination he stated that he had bought the land, but that he had no sale‑deed in respect thereof. He could not even remember the name of the person from whom he had purchased the land. He stated that when he had purchased the land there was only a kotha thereon, which he had demolished and built eight shops thereon. He denied knowledge whether the area in question fell in Katchi Abadi or that any survey had been conducted in respect thereof. He admitted that Ghulam Ali, tenant, had got the electricity installed in his shop. He further stated that the time when the rent deed was executed, he did not furnish proof of this ownership to the tenant. He denied knowledge that the disputed shop was in a Katchi Abadi which vested in the Evacuee Trust Property Board. He admitted the fact that Rahmat Colony was evacuee trust property. He further stated that presently he did not know whether the property was evacuee trust property or not. As against this, Muhammad Yousaf R.W.1, who was Assistant Supervisor in the Evacuee Trust Property Board, stated that he had brought the record with him and that Rahmat Colony was evacuee trust property, which fell in Dharampura Scheme No.2 and which vested in the Evacuee Trust Property Board since 1960. He further stated that he had surveyed the said area, according to which plot No.264‑A was in possession of Ghulam Ali son of Pir Muhammad. .According to his record, the said Ghulam Ali was a shopkeeper and the plot was shown next to his name. He further stated that according to his record, Syed Asghar Ali Shah had no connection with this plot. Ghulam Ali tenant R.W.2 confirmed this position. From this evidence it is clear that the shop in dispute is in Rahmat Colony. Dharampura, Lahore, This is also admitted by Muhammad Ishaq P. W .1 and Syed Asghar Ali Shah landlord P. W .

2. Syed Asghar Ali Shah landlord P.W.2 admitted in cross‑examination that Rahmat Colony was evacuee trust property, though he prevaricated later by adding that he did not know what its latest status was. The latest position did not matter, because if it was evacuee trust property, then the question would arise who secured ownership rights from the Evacuee Trust Property Board. According to Muhammad Yousaf R.W.1, who was the Assistant Supervisor in the Evacuee Trust Property Board, the disputed property was in Rahmat Colony. It was evacuee trust property situate in Dharampura Scheme No.2 under the control of Auqaf since 1960. Obviously, what he meant was that it was evacuee trust property vesting in the Evacuee Trust Property Board. Though he could not specify who was the author of the trust or what were the terms of the trust, the fact that Syed Asghar Ali Shah landlord himself had admitted that at some stage the disputed property was evacuee trust property, proved the case of Ghulam Ali, tenant, as the landlord was not able to show how he came to acquire 'the said disputed property. The two lower Courts, on the basis of the evidence on the record, rightly came to the finding that the disputed property was evacuee trust property vesting in the Evacuee Trust Property Board and that they had no jurisdiction in the matter. Their decision is based on a proper appraisal of the facts on the record. Their finding cannot be stated to be arbitrary or capricious. No interference, therefore, is called for in the constitutional jurisdiction.

4. For the foregoing reasons, there being no merit in this petition, the same is dismissed.

M . Y . H . / A‑340/ L Petition dismissed.