BARKAT ALI through Legal Heirs Versus SHAMAS DIN
This civil revision assails judgments and decrees, dated 12-4-1994 and 30-1-1996 passed by the learned Civil Judge and learned Additional District Judge, Lahore, whereby suit filed by the respondent for possession was decreed and appeal thereagainst by the petitioner was dismissed respectively.
2. Precisely, relevant facts are tat the respondent filed a suit for possession of land measuring 2 Marlas situated in the area of Jhughian Shamas Din Ghari Shahu, Lahore averring that it was let out to the petitioner at a monthly rent of Rs. 50 through a written rent note dated 2-7-1976, for a period of 11 months. It' was also pleaded that the petitioner undertook to vacate the land by removing his superstructure raised for residential purposes and would continue paying the settled amount of rent. It was also averred that till September, 1980 the petitioner failed to pay arrears of rent amounting to Rs.3,050 and thus, become a defaulter, liable to hand over possession of the land to the respondent. The petitioner in spite of notice dated 29-7-1985 did not vacate the land, necessitating filing of the suit.
3. The petitioner being defendant in the suit contested it by filing a written statement wherein he raised certain preliminary objections. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial fudge who was seized of the suit after doing the needful, decreed the suit of the respondent vide his judgment and decree dated 12-4-1994.
4. The petitioner aggrieved of the decision of the trial Court, dated 12-4-1994 filed an appeal before the learned Additional District Judge but remained unsuccessful as his appeal was dismissed on 30-1-1996. Thereafter the petitioner filed instant revision petition which was admitted to regular hearing and after completion of record, the same has now been placed for final determination. The respondent is represented through his counsel.
5. Learned counsel for the petitioner argued that disputed land, subject of suit is situated within the Municipal limits of Lahore Metropolitan Corporation and thus, suit for eviction of the petitioner was not maintainable and instead an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 should have been filed. He further submitted that the area where the property in dispute is situated has been declared "Kachi Abadi" and by virtue of section 6(6) of the Punjab Kachi Abadis Act, 1992, it vests the development authority or the council within whose area it falls, the respondent seized to be its owner and thus, was not entitled to decree passed by the two Courts below. He further elaborated his arguments by asserting that a Notification No.S.0.14-2/73 dated 26-4-1974 issued by the Housing and Physical Planning Department Government of the Punjab, Ghondi Pir, Phase-I, has been notified to be "Kachi Abadi" thus, the judgments and decrees are not sustainable.
6. Learned counsel appearing on behalf of the respondent refuted the arguments of the petitioner, supported the concurrent judgments and decrees of the two Courts below and urged that tenancy between the parties was created through a written agreement which has not been denied by the petitioner and according to this agreement, land was let out for residential purposes where over only a "Jhugi" was to be raised by the petitioner, at his own expenses. In this manner he submitted that land let out for residential purposes is not covered by section 2(a)(e) of the Punjab Urban Rent Restriction Ordinance, 1959 so the ejectment petition under section 13 of the Ordinance (ibid) was not maintainable. He further contended that for possession/ejectment of a tenant of the land let out for residential purposes only a civil suit was competent which was rightly filed by the respondent. In support of this submission, reference to the cases of Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218, Mistri Ahmad Hassan v. Abdur Rauf Khan and others 1986 SCMR 494; Fateh Muhammad v. Rustarn Din NLR 1980 AC 295, Zubeda Bai v. Syed Faqir Shah PLD 1993 Quetta 84 and Pakistan State Oil Company Limited v. Begum Rehana Sarwar 2000 CLC 506 was made.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. The petitioner in his written statement admitted relationship of landlord and tenant, denying rate of rent which according to him was Rs.8 per month, refuted the allegations of default. The petitioner also pleaded that on account of declaration of the Ghondi Pir Scheme as Kachi Abadi, suit by the respondent was not maintainable. The petitioner also admitted receipt of notice dated 29-8-1985 which fulfils the requirement of section 106 of the Transfer of Property Act, 1882. After admission by the petitioner that he is tenant under the respondent. The points which hinge for determination are, firstly as to whether land on rent with the petitioner can be got vacated through a suit or by an application under the Ordinance, 1959, secondly whether the petitioner was a defaulter liable to eviction and third that on account of declaration of Ghondi Pir of Kachi Abadi, the respondent seized to be the owner and thus, was not entitled to the decree for possession of the land with the petitioner.
8. As regard maintainability of suit, section 2(f) of the Ordinance, 1959 defines "rented land" as "any land" let separately for the purpose of being used principally for business or trade. The word "building" has been defined in clause (a) of section 2 of the Ordinance as "any building or part of a building" let for any purpose, whether being actually used for that purpose or not, including any land, godowns, out-houses, together with furniture let therewith but does not include a room in a "Sarai", hotel, hostel or boarding house. Similarly "non-residential building" has been defined in section 2(d) of the Ordinance, 1959 as "a building being used solely for the purpose of business or trade". It makes clear that rented land is one which was let for the purpose of business or trade and a non-residential building means the building used for the purpose of business. Rent note Exh.P.1 clearly demonstrates that an open piece of land without any structure thereover was rented out at a fixed monthly rent where over the petitioner was allowed to raise his "Jhugi" for residential purposes.
9. The Honourable Supreme Court in the case of M. Imam-ud-Din v. Mst. Surriya Khanum PLD 1991 SC 317 very graciously mandated that land would fall within the definition of "rented land" if the same is used for commercial purpose. A similar view was expressed by this Court in the case of Pakistan State Oil Company Limited (supra) and the other judgments relied by the learned counsel for the respondent, noted above. Entire case-law on the subject leaves no room to accept assertion of the petitioner that respondent should have filed an application under section 13 of the Ordinance (ibid) instead of a suit for possession merely for the reason that the petitioner has raised some constructions over the land let out to him for residential purposes and the same falls within Municipal limits. The rent note (Exh.P.1) also shows that the construction if any, raised was raised with express consent of the landlord and it would not bring the land within the attempted arena of "rented land" attracting the provisions of Ordinance (ibid). It brings me to hold that suit by the respondent was competently filed whereas ejectment application under section 13 of Ordinance was not maintainable for eviction of the petitioner.
10. Adverting to second point requiring determination, regarding default in payment of rent, the respondent pleaded in para.3 of the plaint that the petitioner has not paid rent since September, 1980. This paragraph was denied by the petitioner in his written statement wherein he pleaded that there is no arrears of rent payable by him, and the default claimed is imaginary. The petitioner while appearing as D.W.5 stated that he had paid rent up to June, 1984 and rent for the month of July, 1984 was not received by the respondent as a receipt thereagainst was demanded by him. It was then remitted through money order Exh.D.1. The petitioner examined Abdur Rehman son of Ghulam Rasool as D. W.1 who deposed that rent of the land was Rs.8 per month and the petitioner stopped payment of rent in 1980 as it was declared as a Kachi Abadi, D.W.2 Abdul Karim son of Hassan Din also stated that tenancy started with the rent of Rs.8 per month which was increased in 1982 to Rs.50 and after paying rent for two months, the payment was stopped as it was declared as a Kachi Abadi. Similar is the statement of D.W.3. In view of statements of D.Ws. there remains no doubt that default as claimed by the respondent in his plaint, since 1980 was proved rather it was admitted.
11. The third controversy requiring determination is regarding declaration of Kachi Abadi in the area where the land subject of dispute is situated. To start with the petitioner has brought nothing on the file to show that the land in his possession is part of Kachi Abadi. Referring to certain notifications showing that Ghondi Pir, Phase-I, was declared as Kachi Abadi regarding which notification was also issued is not enough to hold that Jhugian Shams-ud-Din or the land measuring 2 Marlas in possession of the petitioner is part of "Kachi Abadi". The respondent examined D.W.3 Muhammad Hussain who deposed that the area ink question used to be a Kachi Abadi but presently there is electricity and: sewerage in the area. This witness though stated that "Jhugian Shamas Din" was declared as "Kachi Abadi" by the Lahore Development Authority but there is no documentary proof on the file. D.W.5 is the petitioner/defendant himself who stated that this Abadi is "Pacca" and there are facilities of sewerage, electricity and gas etc. According to him all the houses in the vicinity have been surveyed and survey number allocated to the house in question is 40. In absence of any documentary proof of taking over of the Abadi by any development authority or council in terms of section 6(6) of the Punjab Kachi Abadis Act, 1992. It is hard to hold that the respondent had lost ownership and he is not entitled to get back possession of the land which was let out by him. Even otherwise the principle "once a tenant always a tenant" is fully attracted to the instant case and the petitioner having entered into possession of the land as a tenant, cannot be allowed to turn back and to deny title of his landlord i.e. the respondent. Tenancy between the parties being admitted, the petitioner on account of default in payment of rent and non-complying the terms thereof has to vacate the land whereafter he may have his rights determined before the authority who took over the Abadi under section 6(6) of the Act, 1992.
12. For what has been discussed above, both the Courts below have taken lawful view of the matter which is in consonance with the evidence on the file none part of which has been misread or non-read. No illegality or irregularity was committed by the two Courts below in absence of which no interference, in revisional jurisdiction is permissible, under law. The petitioner is, however, granted three month time to vacate the land, on rent within him i.e. till 23-9-2004. This revision petition has no merit in it and is accordingly dismissed with no, order as to costs.
H.B.T./B-49/L Revision dismissed.