FARZAND ALI And Another vs MUHAMMAD YASIN And Other

ORDER

SAAD SAOOD JAN, J: --This petition for special leave to appeal arises out of the judgment and order dated 13-10-1984 of the Lahore High Court whereby in Constitutional jurisdiction it set aside an order of eviction passed against respondent. No. 1 by the Additional District Judge under the Urban Rent Restriction Ordinance.

2. The petitioners and respondent No.1 are first cousins as their fathers were real brothers: The father of the petitioners was transferee of House No. 3/2 in Muhallah Chaudharianwala, Sahiwal- Town, Tehsil Shahpur. Contiguous to the house was an open plot bearing No. 4/2. The petitioners' father together with another brother and respondent No.1, jointly and in equal shares, purchased the plot in an auction. The petitioners' father died in 1975. A few months later they filed a suit for possession through partition of their share in the said plot. During the course of the proceedings the parties made statements that they would continue to remain in possession to the extent they were already occupying the joint plot and that none of the parties would interfere with the possession of the other. The suit was disposed of accordingly. Subsequently, respondent No.1 attempted to get the plot renumbered and allotted in his favour. Although he was initially successful but later his attempts failed.

3. On 2-11-1981, the petitioners filed an application for the eviction of respondent No.1 from a part of house No. 3/2 which was exclusively allotted to their father. Their case was that a part of House No. 3/2 had been rented out by their father to respondent No.1 on a monthly rent of Rs.100 but that after his death respondent No.1 had failed to pay the rent. The application was resisted by respondent No.1 with the assertion that he was not in possession of any part of House No.3/2. He also alleged that he had constructed a House on Plot No. 4/2 . And that it was this house which he was occupying. The learned Rent Controller framed an issue to the effect whether the relationship of landlord and tenant existed between the parties. After considering the evidence led by the parties, he recorded a finding in the negative and dismissed the application. On appeal the learned Additional District Judge reversed the finding of the learned Rent Controller and held that relationship of landlord and tenant existed between the parties; accordingly, he directed the eviction of respondent No.1. From the order of the learned Additional District Judge, respondent No.1 filed a writ petition in the High Court. A learned Single Judge accepted the writ petition holding that as in the course of proceedings in the Civil Court the parties had agreed not to interfere with each other's possession, the application for eviction did not lie. The petitioners now seek leave to appeal from this Court.

4. The case of the petitioners is that in the civil suit there was no dispute about House No. 3/2 which was admittedly transferred to their father. They were not seeking the eviction of respondent No.1 from any part of Plot No. 4/2 but from their own property. In the circumstances, the High Court was not right in setting aside the order of the Additional District Judge whereby he had directed the eviction of respondent No.1 from House No. 3/2.

5. It appears that the parties being closely related have been treating Plot No. 4/2 and House No. 3/2 as one property. There is some confusion with regard to the area and the boundaries of the properties. In the circumstances the question arises whether the learned High Court should not have directed the parties to take their dispute to a Civil Court for final determination. We would, therefore, grant leave to appeal. Security for costs in the sum of Rs.5,000. The appeal may be made ready for hearing on the present record with direction to the parties to rile additional necessary documents, if any, within 2 months.