ALI MUZAFFAR Versus TAJ MUHAM MAD

Ali Muzaffar petitioner has filed this constitutional petition to call in question an order of the learned Addl. District Judge dated 30-7-1984 whereby the appeal of Taj Muhammad, respondent No.1, was accepted and the order of the Rent Controller dismissing the respondent's ejectment petition was set aside and case remanded to the Rent Controller with the direction "to proceed with the ejectment application in accordance with law".

2. Facts necessary for the disposal of this petition, briefly stated, are that Taj Muhammad, respondent No.1, claiming to be the owner of the premises in dispute brought an ejectment petition against the petitioner on the grounds of default in the payment of rent, personal need and damage to the property in dispute. Petitioner contested the ejectment petition by denying the relationship of landlord and tenant between the parties. He admitted in his written reply that the property in dispute was transferred to Sher Muhammad, father of respondent No.1, but took the stand that the said Sher Muhammad entered into an agreement of association with him on 11-11-1969 and inducted him in the property in dispute. Petitioner also claimed that he had become the owner of the property by virtue of adverse possession for more than twelve years. On the pleadings of the parties, following preliminary issues were framed:

(1) Whether any relationship of landlord and tenant does exist between the parties? OPA.

(2) Relief.

2. Both the parties led evidence in support of their respective contentions. Respondent No.1 examined two witnesses, namely, Master 3aahir Masih P.W.1 and Daulat Masih P.W.2, and himself appeared as P.W.3. He also, produced the documents Exs. PI to P3. Fx.P1 is a copy of the notice which 'Taj Muhammad respondent sent through an Advocate to the petitioner requiring him to pay the arrears of the. rent as also to vacate the premises in dispute. Exs. P2 and P3 arc the postal receipts. It appears that the respondent also placed on record photo copy of the transfer order. Petitioner, on the other hand, appeared as his own witness and he produced two notices Exs. R1 and R2 sent to him by the two ladies Mst. Tajwar Begum and Mst. Jahan Ara Begum asking him to pay rent to them of the premises in dispute which they had purchased.

3. The Rent Controller after considering the evidence was not satisfied that the relationship of landlord and tenant existed between the parties. He observed that "no doubt, the T.O. stands issued in favour of the petitioner and he served the legal notice and since the property is evacuee, still this is not sufficient to hold the existence of tenancy between the parties in view of the evidence on the record that the possession of the respondent is not by virtue of a tenancy but it is the kind of permissive possession." Rent Controller further held that as per the notices Exs. R1 and R2, the property stood transferred to two ladies on 13-10-1977 and, therefore, respondent No.1 was not entitled to bring the ejectment petition against the petitioner. Issue of relationship was accordingly decided against the respondent and consequently the Rent Controller by order dated 12-10-1983 dismissed the eviction petition.

4. Respondent No.1 preferred an- appeal which was accepted by the learned Addl. District Judge mainly on the ground that the petitioner took a definite stand that he was the owner of the property in dispute by virtue of an agreement of association (erroneously described in the impugned order as partnership deed) but he failed to produce that document. It was further held by the learned Addl. District Judge that the petitioner also failed to establish his plea of adverse possession. Learned Addl. District Judge observed "there is no evidence on the record which may show that the respondent has occupied the property in his own independent right and that his possession matured into adverse possession." On the question of tenancy, it was held by the learned Addl. District Judge that the evidence available on the record and the circumstances clamour that there exists relationship of landlord and tenant between the parties." Having so held; the case was remanded to the Rent Controller for proceeding with the ejectment application in accordance with law.

5. I have heard the learned counsel for the parties and have perused the available record. Learned counsel for the petitioner contended that the petitioner entered into possession of the premises in dispute by virtue of an agreement of association, dated 11th November, 1969. He never paid any rent to respondent No.1 or to his father Sher Muhammad nor did he ever accept them as his "landlord. Learned counsel quite frankly conceded that the said agreement was not accepted/approved by the Settlement Authorities and the writ petition filed by the present petitioner also bore no fruit as the same was dismissed by a learned Judge of this court. Petitioner then took recourse to the civil Court but with no better result. His suit was dismissed and so were his appeal and revision and the matter is now pending before the Supreme Court for Special Leave to Appeal The fact thus remains that the petitioner cannot claim any right or title in the property in dispute by virtue of the alleged agreement of association. Learned counsel also did not press the plea of adverse possession which plea even otherwise, as rightly held by the learned Addl. District Judge, he had failed to establish on record. Learned counsel for the petitioner vehemently contended that on the evidence on record, it was not established that the petitioner was a tenant under the respondent. He pointed out that even according to the evidence led by the respondent, petitioner was brought on the premises in dispute for few days and it was not stated by the respondent or his witnesses that he was inducted; as a tenant. It is quite true that it was not specifically stated in the evidence that, the petitioner was in possession as a tenant but it is in evidence that the' respondent. demanded the rent from him and sent him a notice in that behalf which fact goes to show that the respondent treated him as a tenant. Be that as it may, petitioner's status as a tenant is even otherwise established by virtue of the, provisions of section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. It may be pertinently observed that according to the evidence of the respondent which the petitioner did not challenge in cross examination, he was brought on the premises in dispute by the respondent's father in 1961-62. Property in dispute was transferred to the respondent's father on 30-7-1969. It is so stated in the agreement of association copy whereof has been placed on the present record. That being so, petitioner was in possession of the property in dispute when it was transferred to the respondent's father. Even according to the petitioner's own statement in cross-examination, he was in possession of the property since the end of the year 1967. Thus, the petitioner being in possession of the property- in dispute at the time of its transfer to the respondent's father, he became a statutory tenant of the transferee by virtue of section 30 aforesaid. In this view of the matter, the finding of the learned Addl. District Judge that the relationship of landlord and tenant existed between the parties is unexceptionable.

6. Upshot of tile above discussion is that the writ petition has no merit and the same is hereby dismissed but with no order as to costs.

H.B.T./A-355/L. Petition dismissed.