MUHIBULLAH KHAN vs SADIQ KHAN

MIAN BURHANUDDIN KHAN, J.--Leave was granted by this Court, per order, dated 16-5-1979, on the ground that in view of the concurrent finding recorded by the trial Court as well as the first appellate Court to the effect that there exists no relationship of landlord and tenant between the parties herein, the learned High Court had no jurisdiction to upset that finding in its revisional jurisdiction under section 115, C.P.C.

2. Respondent Muhammad Sadiq Khan brought a suit for a ejectment against the appellant from two shops situated in the village Char Gali, Tehsil and District Mardan on the ground of default from Ist March to 30th September, 1971 at the rate of Rs. 20 per month, and for personal requirement. In his written statement the appellant averred that the land beneath the shop in question in agricultural land in village Char Gali and was owned by one Sher Zaman Khan with whose permission the appellant had constructed the shops from his own resources on the condition that no ejectment will be sought by the landlord; that after spending thousands of rupees the appellant constructed these shops and he was regularly paying the rent after the demise of Sher Zaman Khan to his successor-in-interest Shah. Pasand Khan at the rate of Rs.19 per month. The learned Civil Judge, on the pleadings of the parties, framed the following issues:

(1) Whether the relationship of landlord and tenant exists between the parties?

(2) Whether the defendant is a defaulter of rent?

(3) Whether the plaintiff requires the shop in dispute for his own se in good faith?

(4) Whether the plaintiff wants to re-construct the shops?

(5) Whether the defendant has constructed the shop with his own funds, if so, with what effect?

3. The learned trial Judge decided issue No.2 as follows: "In view of my observation on Issue No.1, I should not discuss this issue. However, if it is held that the relationship of landlord and tenant exists between the parties, then the defendant is a defaulter of rent, because he has not claimed to have paid rent to the plaintiff. The issue is decided accordingly."

As far as personal requirement is concerned the issue was decided against the respondent. Issue No.4 was also decided, against the defendant /respondent, and the suit was dismissed.

4. On appeal the learned District Judge, in his judgment, dated 9-5-1973, concurred with the finding of the learned Civil Judge and held that the rent deed Exh.P.W.2/1 is not proved to have been executed by the appellant and the plaintiff /respondent failed to produce independent and convincing evidence to prove that the defendant was a tenant under him and that he had executed the rent deed Exh.P.W.2/1.

5. In revision the learned High Court Judge observed that the rent deed in the case has been proved and there is no reason to disbelieve the witnesses produced in support of the execution of the said deed. Shah Pasand Khan, grandfather of the respondent, according to the appellant, was the owner of the property and he has been paying rent to him. It is not conceivable that Shah Pasand Khan would not have directly brought the ejectment suit against the appellant and as to why the help of his grandson was sought to secure the ejectment of the appellant. The learned Judge also pointed to the portion of evidence on record, which has been misread by the Courts below; that the property in dispute, was owned by the respondent and, consequently, he accepted the revision petition and decreed the suit of the plaintiff /respondent, vide the impugned judgment.

6. We have gone through the evidence and we find that the appellant had himself admitted in his written statement that Shah Pasand Khan was the owner of the shops; that he had been paying rent to him. Shah Pasand Khan, when examined as P.W.4, stated that the shops, in dispute, belonged to the plaintiff /respondent and he had no concern with these shops and that the defendant /appellant is occupying the shops as tenant under the plaintiff. He was not cross- examined on the point that he had been receiving rent as the landlord of the shops in question. In cross-examination he stated that the shops in dispute had been constructed by the plaintiff and are owned by the plaintiff and these shops were not inherited by him from Sher Zaman Khan who was his nephew. Thus, there is no scope for interference with the impugned; judgment which is based on correct reading of the evidence which was ignored by the two Courts below.

Consequently the appeal is dismissed with costs.