MUHAMMAD AZAM Versus ADMINISTRATOR, MARKET COMMITTEE

ORDER

The petitioners have in this civil revision assailed judgment/decree dated 18-7-2002 passed by Additional District Judge, Multan.

2. Brief facts giving rise to the petition are that the petitioners had filed a suit against the respondent-Committee for a decree of declaration that they are in possession of the suit plot as tenants of the respondents committee and are carrying on business after constructing a shop thereupon. Now the respondents-Committee has declined to accept rent from them in respect of the said plot and has issued a notice directing them to vacate the said plot after removing the superstructure constructed thereon. It was alleged that the said notice is illegal and ineffective on their rights. By way of consequential relief it was prayed that the respondent-Committee be perpetually restrained from interfering with their peaceful possession over the said plot.

3. The suit was contested and the following issues were framed by the learned trial Court:--

ISSURS:

(1) Whether the plaintiffs are tenants under the defendant?

(2) Whether Notice No.6183-6/M.MC dated 19-12-1994 is against law and facts without authority void and based on mala fide?

(3) Whether the plaintiff is entitled to,the declaration and permanent injunction as prayed for?

(4) Whether the plaintiff has no cause of action and locus standi to bring this suit?

(5) Whether the suit is liable to be dismissed in view of preliminary objection No.2?.

(6) Whether the suit is not maintainable in view of preliminary objection No.3?

(7) Whether this Court has no jurisdiction to try this suit?

(8) Relief.

4. This learned trial Court decided Issues Nos. 1 to 3 in favour of the petitioners, Issue No.4 was answered in the negative, no finding was given on Issues Nos.5 to 7 as they were not pressed, resultantly the suit was decreed.

5. On appeal by the respondent-Committee the learned Appellate Court held that the petitioners did not produce any document in support of their assertion that the disputed plot was ever allotted to them and its possession was delivered to them by the respondent-Committee; therefore, in the given situation their status was that of illegal occupants and they were not entitled to the declaration sought for. The appeal of the respondent-Committee was accordingly accepted, judgment and decree of the learned trial Court was set aside, resultantly the suit was dismissed.

6. Learned counsel for the petitioners assails the aforesaid judgment of the Appellate Court on the following grounds:--

(i) During the course of proceedings two applications one under Order 41, rule 27 and the other under Order 26, rules 1 and 9, C.P.C. were moved by the petitioners which were decided by the learned Appellate Court without obtaining reply from the other side, after deciding the appeal.

(ii) Issue wise finding was not given by the learned Appellate Court hence material irregularity was committed in rendering the impugned judgment.

(iii) Issuance of Letter No.2539 regarding allotment of the petitioners and receipt of rent from them was admitted by D.W.1, Secretary Market Committee; and

(iv) Impugned judgment is based on surmises and conjectures and was passed without applying the judicial mind.

7. Applications under Order 41, rule 27 and Order 26, rules 1 and 9, C.P.C. were disposed of by the Appellate Court vide single order dated 18-7-2002 (Annex-L/2).

8. In the former application the petitioners sought permission for producing copies of two judgments of Supreme Court and a letter issued by Director, Agriculture and Marketing, Punjab, Lahore, by way of additional evidence and in the latter application a Local Commissioner was sought to be appointed to report about the location of the disputed plot vis-a-vis office of market committee.

9. Perusal of the said order Annexure-L/2-reveals that after dismissing the aforesaid two applications, arguments in the appeal were heard and it was also disposed of on the same day, hence contention of the petitioners' counsel that the said two applications were decided after giving decision on the appeal is without any substance. The aforesaid two applications could have been legally disposed of by the Court without obtaining reply from the other side.

10. Adverting to the second ground of the petitioners' counsel it may be observed that Issues Nos. 1 to 3 were related inter se hence they were taken up and decided together by the learned trial Court in favour of the petitioners., Issue No.4, was decided in the negative i.e. against the respondents and no finding was given on Issues Nos. 5 to 7 as they were not pressed.

11. The learned trial Court had held the petitioners as tenants of the respondents-Committee on the basis of the oral evidence comprising of the statements of one of the petitioners and Nemat Ali P. W.2, coupled with the admitted possession of the petitioners and advance deposit of rent made by them.

12. The said evidence was hardly sufficient to prove the factum tenancy. It was rightly held by the Appellate Court that mere deposit of advance rent and possession of the petitioners, per se did amount to the creating of tenancy in respect of the disputed plot in the absence of a rent/lease deed or an order of allotment. According to the Appellate Court, from the evidence available on record it was, therefore, not proved that the petitioners were ever allotted or were given tenancy rights in the suit property. In view of the said findings of the learned Appellate Court, findings on Issues Nos. 1 to 3 were reversed and the impugned judgment/decree passed by the learned trial Court was set aside.

13. Basis of the petitioners claim was tenancy in their favour regarding the disputed plot which is reflected in Issue No. 1. They failed to prove their said claim.

14. Subsequent Issues Nos.2 and 3, respectively relating to the alleged illegality of notice to vacate the premises and the entitlement of the petitioners to the decree of declaration and permanent injunction in respect of the suit property entirely depended on the fate of Issue No. 1. Finding of the Appellate Court that the petitioners had failed to prove their tenancy was sufficient to non-suit them and in the given situation I there was no need to have discussed and to have given separate findings on Issues Nos.2 and 3.

15. So far as Issues Nos.4 to 7 are concerned, they were not decided by the trial Court against the petitioners hence the petitioners could not have any cause of grievance if the said issues were not discussed and findings thereon were not given by the Appellate Court.

16. Adverting to the next contention of the petitioners' counsel that Letter No.2539 regarding allotment of petitioners was admitted by D.W.1, Secretary, Market Committee, therefore, tenancy was proved, is without any substance because that letter was not produced in evidence and D.W.1, did not mention that the said letter was letter of allotment of the disputed plot in favour of the petitioners. The aforesaid letter is appended with the civil revision as Annex-A, A. perusal of the same shows that it is not letter of allotment but is merely a letter of recommendation issued by Director of Agriculture that the petitioners may be allotted 2-1/2 Maria plot at the rate of Rs.400 per month. By the said letter, therefore, tenancy of the petitioner over the disputed plot was not proved.

17. Reverting to the last argument of the petitioners' counsel it may be observed that the impugned judgment is based on sound reasons and by no stretch of imagination it can be deemed as arbitrary, capricious or based on surmises and conjectures.

18. For the reasons stated above, the revision petition is without any merit, it is accordingly dismissed in limine.

H.B.T./M-1451/L Revision dismissed.