Messrs ILAM DIN ABDUL REHMAN KARYANA MERCHANTS, Represented By Abdul Sattar And Another vs Master SARDAR ELAHI
This matter arises from an ejectment proceeding instituted by the respondent against the petitioner, claiming to be the transferee of the disputed property by auction. The Rent Controller dismissed the ejectment application upon finding that the property had not been transferred to the respondent and that no statutory tenancy existed, which findings were upheld in first appeal. In second appeal, the High Court held that the property had been transferred to the respondent, though it agreed that no landlord-tenant relationship existed and thus the ejectment application was rightly dismissed. The petitioner sought leave to appeal before the Supreme Court of Pakistan, grievance being that the High Court should not have disturbed the concurrent finding of fact regarding title. After hearing counsel, the Supreme Court granted leave to appeal to examine whether the High Court erred in disturbing the concurrent finding of fact on title in second appeal.
- Whether the High Court in second appeal can disturb a concurrent finding of fact regarding title?
- Is an ejectment application maintainable in the absence of a contractual or statutory relationship of landlord and tenant?
ORDER
M.S.H. QURAISHI, J.--Respondent Master Sardar Elahi claiming to be transferee of the property in question by auction and to have duly served notice of transfer on the petitioner, instituted gin ejectment proceeding against the petitioner which was dismissed by the Rent Controller upon the finding that the disputed property had not been transferred to him and that the petitioner having come into possession of the property after the date of the transfer, there was no statutory tenancy between him and the respondent. The findings were upheld in first appeal but in second appeal a learned Single Judge of the High Court held in pars. 5 of his `Judgment that the property in question had been transferred to the respondent. However, as the petitioner was found to have come into possession of the property in 1961-62 and there being no agreement of tenancy between the parties, the High Court agreed that there was no relationship, statutory or contractual, of landlord and tenant between the parties and that the ejectment application was not maintainable and had been rightly dismissed.
2. Although the respondent's application had thus ultimately failed but the petitioner's grievance is that the question of title to the property which had been concluded by a concurrent finding of fact by the first to forums, ought not to have been disturbed by the High Court in second appeal and that the finding recorded by the High Court is bound to affect the case of the petitioner whose form for transfer of the property in his favour was still pending.
3. After hearing learned counsel for the parties, we grant leave to appeal. Security Rs.1,000, The appeal shall be heard in the week commencing on 22-6-1985 on the present record with permission to file fresh documents if any.