SITAN Versus SIRAJ AHMED KHAN
This suit has been filed by Mat. Sitan widow of Mohammad Haroon, and Abdul Razzak and Abdul Sattar sons of late Mohammad Haroon, against Siraj Ahmed Khan for declaration and injunction. The following reliefs have been claimed in this suit by the plaintiffs:‑---
(a) It be declared that the plaintiffs are the owners by way of inheritance and adverse possession in respect of an area measuring about 30 x 26 square feet earmarked as G.R.E. 429/1 and the defendant has no right, title or interest in respect of the property belonging to the plaintiffs and the plaintiffs cannot be evicted therefrom.
(b) Permanent injunction restraining the defendants from interfering with the plaintiffs' possession of the property No. G.R.E. 429/1 in any manner whatsoever.
In this suit, an application (C.M.A. 4667/87) has also been filed by the plaintiffs praying for a temporary injunction restraining the defendants from dispossessing the plaintiffs from the property bearing No. 3.R.E. 429/1, Lawrence Road, Karachi till the disposal of the suit. This application for interim injunction came up for hearing before me on 11‑2‑1988, when certain objections were raised about the maintainability of the suit itself and, therefore, after hearing preliminary submissions in that regard, the hearing was adjourned to 15‑2‑1988, when, with the consent of the learned counsel for the plaintiffs and the defendants, final arguments on the maintainability of the suit were also heard and the matter was reserved for orders.
2. The dispute between the parties has a long and chequered history. The defendant had filed Rent Case No. 1422/71 against Mohammad Haroon, predecessor‑in‑interest of the three plaintiffs, for his ejectment from the premises in question bearing No. GRE‑429/1, Garden East, Lawrence Road, Karachi. The case of the defendants in the rent case was that he was the transferee of property No. GRE‑429 from the Settlement Department and premises bearing No. GRE‑429/1 was a part of property No. GRE‑429 and that Mohammad Haroon was a tenant in respect of that portion of the defendant's property. The grounds of ejectment taken in the ejectment application were that deceased Mohammad Haroon had defaulted in the payment of rent and that he had also sublet a portion of the tenanted premises to one Abdul Qayyum without authority from the defendant. Deceased Mohammad Haroon challenged the relationship of the landlord and tenant between the parties taken up the defence that the premises in dispute was a separate property and it was his ancestral property. A preliminary issue was accordingly framed about the relationship of landlord and tenant between the parties, who led evidence in support of their respective contentions regarding the ownership of the property in question. By order, dated 9‑1‑1979, the learned Rent Controller decided the preliminary issue in favour of the defendant holding that relationship of landlord and tenant existed between the parties. During the pendency of the ejectment application, Sind Rented Premises Ordinance, 1979, was enacted and, under section 16(1) of the said Ordinance, an application was filed by the defendant on which the Rent Controller passed the following orders on 4‑10‑1980:‑
"The rent order in this case could be passed at the rate of latest assessment but the applicant has failed to produce any document in respect of latest assessment of the property in dispute to my satisfaction. Therefore, I pass this tentative rent order and direct the opponent to deposit Rs.745 being the arrears of rent from May, 1968 to September, 1980 at the rate of Rs.5 per month in Court before 1‑12‑1980."
A further direction was also made by the Rent Controller for deposit of future monthly rent. Against the rent order, dated 4‑10‑1980 passed by the Rent Controller, Mohammad Haroon filed First Rent Appeal No. 92/80 before this Court, but the same was dismissed in limine on 8‑3‑1981 on the ground that no final order had been passed by the Rent Controller and the appeal was not maintainable. Thereafter, the matter proceeded before the Rent Controller and apparently there was a default in deposit of rent for one month and the defendant filed an application under section 16(2) of the 1979 Rent Ordinance. By order, dated 14‑1‑1982, the Rent Controller allowed the application of the defendant, struck off the defence of deceased Mohammad Haroon and ordered his ejectment. Another rent appeal being F.R.A. 122/82 was filed before this Court by deceased Mohammad Haroom challenging the order, dated 9‑1‑1979 of the Rent Controller holding that the relationship of landlord and tenant existed between the parties, and the order, dated 4‑10‑1980 for deposit of rent and the final order of ejectment, dated 14‑1‑1982. The said rent appeal was disposed of by my order, dated 29‑11‑1983 whereby it was held that the rent order, dated 4‑10‑1980 could not be sustained and it was, therefore, set aside. No finding was given by me in the order, dated 29‑11‑1983 on the question of relationship of landlord and tenant between the parties observing that the case was being remanded to the Rent Controller and only in case a final order of ejectment was passed after remand, such point could be agitated by the plaintiffs if they chose to challenge 'the final order of ejectment.
After remand, by order, dated 18‑4‑1984, the Rent Controller passed a final order of ejectment against the plaintiff. Being aggrieved, the plaintiffs filed a third rent appeal being F.R.A. 503/87, which was disposed of by a learned single Judge of this Court by judgment, dated 24‑5‑1987. After observing that the Rent Controller had decided all the issues in favour of the defendant, the judgment, dated 24‑5‑1987 proceeded as follows:‑
"The learned counsel for the appellant was unable to controvert the findings on these issues. His only contention was that the respondent had not led sufficient evidence to prove the existence of relationship of landlord and tenant between the parties. With this submission of the appellant also I am not in agreement. Respondent had produced extract from the property survey register, extract from P . T . I . register, P . T . D . etc., from which it was quite clear that the property bearing No. GRE‑429/1, Lawrence Road, Karachi was transferred to the respondent by the Settlement Authorities. It was proved by documentary and oral evidence led by the respondent as well as by the admission of the appellant in a connected suit that the appellant was in possession of a portion of Plot No. 429 and marked as 429/1. In this rent application, he has taken the stand that it was not Plot No. 429/1, which was in his possession, but it was another plot, which was in .his possession. I am, therefore, satisfied that the findings of the learned Rent Controller even on the issue as to relationship of landlord and tenant between the parties is unexceptionable."
Admittedly the order, dated 24‑5‑1987, dismissing F.R.A. 503/87 filed by the plaintiffs, has not been challenged by the plaintiffs before the Supreme Court and instead, after the dismissal of their rent appeal by order, dated 24‑5‑1987, the plaintiffs filed the present suit in this Court on 20‑10‑1987, claiming the reliefs mentioned earlier.
3. It is an admitted position that the rent case filed by the defendant against the predecessor‑in‑interest of the plaintiffs was 'a title‑involving ejectment case. The plea of Mohammad Haroon, the predecessor‑in‑interest of the plaintiffs, in his written statement, dated 7‑10‑1971., was that Mohammad Haroon was the owner of premises No. GRE‑429/1, Lawrence Road, Karachi and the Settlement Authorities had no jurisdiction to transfer the same to the defendant. In the written statement, dated 7‑10-1971 of Mohammad Haroon filed in Rent Case No. 1422/71 (Annexure 'A' to the counter‑affidavit, dated 6‑12‑1987 filed by the defendant in the present suit), it was then pleaded by Mohammad Haroon as under:‑
"It is submitted that the opponent is, therefore, the owner of the premises in the case. The opponent has instituted Suit No. 2166/70 in the 9th Court of Civil Judge, Karachi against the applicant for declaration that he has proprietary right in the property in the case and for permanent injunction restraining the applicant from disturbing the possession of the opponent and the same is pending in the Court."
In the written statement of‑ Mohammad Haroon in the rent case, therefore, it was not his plea that Property No.429/1 was not a part of G.R.E.429 transferred to the defendant by the Settlement Department but his plea was that Property No. 429/1 had been wrongly transferred by the Settlement Department to the defendant. As regards Suit No.2166/70 filed by Mohammad Haroon before the Civil Judge, Karachi against the defendant, it may be observed that a copy of the plaint in that suit has been filed as Annexure 'D' to the counter affidavit of the defendant in the present suit and in that plaint also the plea that had been taken was that Mohammad Haroon was in possession as owner of a piece of land measuring 30 x 20 square feet being a portion of a larger plot bearing new Survey No. G.R.E.429, which piece of land had been earmarked as G . R . E . 429/ 1 by the Excise and Taxation Department, Karachi. The prayer made in Suit No.2166/70 by Mohammad Haroon was as under:‑
"(a) Declaration that the plaintiff has proprietary right over and interest in the property measuring about 30 x 20 square feet earmarked as G.R.E. 429/1 by Excise and Taxation Department bearing No. G.R.E. Karachi and the defendant has no right to interfere with his possession.
(b) Permanent injunction restraining the defendant Siraj Ahmed Khan from interfering with plaintiff's possession of and title the land in question in whatsoever manner."
Annexure 'D‑1' to the counter‑affidavit of the defendant in the present suit is a copy of the order, dated 1‑7‑1972 of the IXth Civil Judge, 1st Class, Karachi passed in Suit No.2166 of 1970 and it reads as follows:‑
"The plaintiff and his advocate called absent. It is 1‑30 p.m. The advocate for the defendant present. The suit stand dismissed."
The fact that the earlier suit had been filed by Mohammad Haroon in 1970 and that the said suit had been dismissed on 1‑7‑1972 has not been challenged by the plaintiffs in the rejoinder, dated 17‑1‑1988 filed by the plaintiff No.2 Abdul Razzaq.
4. The decision in the title involving rent case was against the plaintiffs. Their appeal, being F.R.A. No. 503/87, has also been dismissed by judgment, dated 24‑5‑1987 of this Court and admittedly no petition has been filed in the Supreme Court by the plaintiffs against the judgment, dated 24‑5‑1987 of this Court, which has attained finality. The decision of the Rent Controller and then of this Court in First Rent Appeal in the title involving ejectment case is that the premises in occupation of the plaintiffs are a part and parcel of the property transferred to the defendant by the Settlement Department. No allegation has been made in the present suit that the defendant has committed any fraud upon the plaintiffs or their predecessor‑in- interest Mohammad Haroon. The plaintiffs had not taken any plea either before this Court in the First Rent Appeal that the question of relationship of landlord end tenant which depended on the decision relating to title could not be decided in the proceedings under the Rent Ordinance or that an elaborate enquiry was required for determining such question which was not possible in the enquiry contemplated under the Rent Ordinance by the Rent Controller in the ejectment case filed by the defendant.
In this context reference may be made to a decision of the Supreme Court in the case of Rahmatullah v. Ali Mohabbat 1983 SCMR 1064. I had occasion to refer to this decision of the Supreme Court in the case of S.M. Hayat v. Ikram‑ul‑Haq 1984 C L C 3176 and I may refer to a passage in my aforesaid judgment, which reads as follows: ‑
"With all humility, I have ventured to record here the general principles which appear to have been laid down by the Supreme Court in 1983 S C M R 1046:‑
(a) When the decision of the issue regarding relationship of landlord and tenant in an ejectment case under the 1959 Rent Restriction Ordinance depends solely on the question of the ownership and title to the property in question and it is not possible for the Rent Controller to decide the ejectment case without deciding the basic question involved regarding title, the Rent Controller can, in such a case, decide the question of title, and his decision on the question of title will not be tentative. If the! Rent Controller in such a case gives a decision on title of the property without any reservations, such decision, subject to appeal and decision by higher Courts will be res judicata on, the question of title.
(b) In a title involving case, to make out a case for ejectment, the landlord must first establish his title beyond reasonable doubt. If he is unable to do so, ejectment application must be dismissed.
(c) In a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, the Rent Controller can refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court.
(d) Even when the tenant has not succeeded before the Rent Controller to create the required 'reasonable' doubt but has convinced him that hid plea is not frivolous and/or vaxatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Rent Controller can leave scope for a civil suit by the tenant by observing so, and where he fails to do so, the appellate or higher Court can do the same.
(e) By operation of general law of res judicata, section 9 and section 12(2) of the Code of Civil Procedure and section 15(7) of the Rent Restriction Ordinance, 1959 together with the policy of Court to prevent multiplicity and repeat litigation, the Civil Court is barred from setting aside the orders of the Controller."
In the circumstances of the present case, therefore, I am of the view that the present suit is barred by the finding of the Rent Controller, which has been affirmed by this Court in F.R.A. No. 503 of 1987, and the present suit is not maintainable. The finding in the proceedings under the Rent jurisdiction that premises No. 429/1 are a part of the property transferred to the defendant by the Settlement Department cannot be re‑opened by the plaintiffs in a suit, in the circumstances mentioned hereinabove.
5. Learned counsel had referred to an earlier decision of the supreme Court in the case of Ismail Brothers v. Kevelram P L D 1981 SC 545 for the proposition that the present suit is maintainable. This decision relied upon by the Supreme Court is clearly distinguishable. In this decision of the Supreme Court reference was made to the fraud apparently committed against the plaintiffs in that case. The Supreme Court had observed that serious questions in that case required elaborate examination in the light of applicable law. In my view P L D 1982 page 4 does not help the plaintiffs in support of the proposition advanced on their behalf that the present suit is maintainable.
6. There is an additional reason for holding that the present suit is not maintainable and that is that Mohammad Haroon, predecessor‑in‑interest of the present three plaintiffs, had filed a previous suit in 1970 being Suit No. 2166 of 1970 claiming similar relief which suit had been dismissed as far back as 1‑7‑1972. The suit was not restored nor any appeal was filed against the dismissal of that suit.
7. It has also been noticed that previously the stand of Mohammad Haroon, predecessor‑in‑interest of the present plaintiffs, was not that premises being No. 429/1 was not a part of the property transferred to the defendant by the Settlement Department, as is the case set up now by the plaintiffs. Previously the case on behalf of Mohammad Haroon was that the property in occupation of Mohammad Haroon was a part of the larger property transferred by the Settlement Department to the defendant and such transfer was illegal. In the present suit, the plaintiffs have taken a position which is patently contradictory to the stand taken by their predecessor‑in‑interest in the earlier Suit No.2166/70 and the written statement filed by him in the rent case filed by the defendant against Mohammad Haroon.
8. In the circumstances, I am of the view that the present suit is not maintainable and is liable to be dismissed. Suit No. 762/87 is accordingly dismissed as not maintainable with no order as to costs. While concluding his arguments Mr. Syed Amjad Hussain, learned counsel for the plaintiffs submitted that in case the suit was being dismissed, the plaintiffs may be granted at least two months' time so that they may approach the Supreme Court. It is directed that the plaintiffs will not be ejected till 30‑4‑1988.
As the main suit has been dismissed C.M.A No. 4667/87 has become infructuous.
M. Y. H. /S‑156/ K Suit dismissed.