PEHLAJ RAI vs KHEM CHAND And Other

ORDER

ZAFFAR HUSSAIN MIRZA, J.--This order shall dispose of these four petitions for leave to appeal as they are directed against a common judgment of the Baluchistan High Court dated 24th December, 1985, whereby the petitioner's appeals under section 15 of Ordinance VI of 1959 were dismissed.

2. The substantial dispute between the parties to these petitions is that the petitioner claims to be the owner/landlord of the property comprising the premises in occupation of the respondents who according to him are his tenants, whereas the respondents in these petitions denied the claim of the petitioner and dispute his title. The petitioners claim to have been transferred the property by means of a registered instrument of mortgage by conditional sale from one Mst. Mai Bhoji, a Hindu widow. The petitioners application for ejectment of the respondents from the various tenements of the building comprising the property was accepted by the Rent Controller on 31st January, 1975 and orders of ejectment were passed against them. The issue regarding the existence of relationship of landlord and tenant between the parties was decided in favour of the petitioner.

3. Being aggrieved by the orders of ejectment, the respondents filed separate appeals before the District Judge, but owing to change in law these appeals were finally disposed of by the impugned judgment by a learned Single Judge of the High Court with the result as already stated. The learned Judge in the High Court has referred to the past litigation in respect of the title claimed by the petitioner in the property in dispute. The tenants /respondents main contention was that Mst. Mai Bhoji had no right to alienate the property being a limited owner under the Hindu Law and accordingly her entire property devolved on the State as eascheat. On this basis the Board of Revenue seems to have passed some orders declaring the property as having reverted by escheat to the State but at the instance of the petitioner the High Court in constitutional jurisdiction declared the order to have been passed without lawful authority. In view of this decision a suit has been filed on behalf of the State in the Civil Court which is pending decision. Similarly a suit filed by the tenants/ respondents challenging the title of the petitioner by transfer from the aforesaid Hindu widow is also pending adjudication in the Civil Court. The learned Single Judge upon reference to the aforesaid litigation as regards title of the petitioner came to take the view that his title not being free from clouds, therefore, cannot be made the basis of ejectment of the tenants from the property under dispute. For this proposition learned Judge relied on the decision of this Court reported as Rehamtullah v. A.I Muhammad and another 1983 SCM R 1064. The proposition laid down in the said case was expressed as follows:- "What is permissible for Courts of general jurisdiction in the field of fair-play, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, 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, refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required 'reasonable' doubt but has convinced him that his plea is not frivolus and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same."

4. It is contended in support of these petitions that the view taken by the learned Judge was not justified and in the facts of the present case the rule laid down by this Court in the latter part of the dictum cited above was more appropriately applicable, that is, the tenants had not succeeded in creating a reasonable doubt about, the title of the petitioner. Learned counsel argued that they have on, the contrary conceded their inability to defeat the title of the petitioner as long as the ostensible sale is in the field and is not set aside by a proper decision of the competent Court of law. As the tenants have themselves chosen to take recourse to the Civil Court to challenge title of the petitioner there seems to be force in the argument that the petitioner had prima facie right to claim himself as the landlord of the premises in dispute. The other contention of the learned counsel is that the appeals before the High Court were ordered by an earlier order of another learned Judge of the High Court to be kept pending till the decision of the suit filed by the Government of Baluchistan, therefore, the appeals could not be heard and disposed of contrary to the said order.

5. The contentions advanced raise substantial questions of law which require examination. Leave to appeal is accordingly granted in all these petitions. Security for costs Rs.500 in each case.