Syed ALTAF HUSSAIN SHAH vs HAIDER ZAMAN and anothers
This petition for leave to appeal arose from a civil suit for possession of a house filed by the petitioner against the respondent, claiming ownership and a landlord-tenant relationship. The respondent denied the relationship, asserting ownership through allotment. The trial court dismissed the suit on the ground that the respondent had no notice of the transfer of the house to the petitioner by the Settlement Department. On appeal, the Additional District Judge upheld the dismissal, ruling that the house was erroneously transferred to the petitioner and that the respondent had become the owner under Scheme No. VII of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. The High Court dismissed the petitioner's revision. The petitioner contended that the legality of the transfer was not an issue before the courts below and that the civil courts lacked jurisdiction to go behind the transfer order of the Settlement authority. The Supreme Court granted leave to appeal to consider these questions.
- Whether a civil court has the jurisdiction to go behind a transfer order passed by the Settlement Department and determine its legality?
- Whether an appellate court can decide a civil suit on issues that were not raised as disputes or framed as issues between the parties in the trial court?
- Scheme No. VII, Displaced Persons (Compensation & Rehabilitation) Act 1958
ORDER
' MAMOON KAZI, J.---Petitioner Syed Altaf Hussain Shah filed a suit against respondent Haider Zaman for possession of a house situated in Village Usman Khattar, Tehsil Rawalpindi. The plaintiff had claimed to be owner of the said house which, according to him, had been rented out by him to the respondent at R.s,10 per month. However, the respondent had failed to pay rent for the said house for the months of October and December, 1969. Besides this, the plaintiff also required the house for his personal use.
2. The suit was resisted by the respondent as relationship of landlord and tenant between the parties was denied. The respondents set up his own claim, as, according to him, he had been allotted the said house on 9-1-1954.
3. The learned Civil Judge, Rawalpindi, dismissed the suit, vide judgment dated 18-6-1971. Although, he arrived at a conclusion that the house in question had been transferred by the Settlement Department to the plaintiff, nevertheless, according to him, the defendant had no notice in respect of the transfer of the house to the plaintiff and, therefore, such relationship did not exist between the parties. Consequently, the suit was dismissed.
4. Being aggrieved by the said judgment, the petitioner filed appeal before the learned Ex Officio Additional District Judge, Rawalpindid, who upheld the judgment of the learned Civil Judge, mainly on the ground that the house in question had been erroneously transferred by the Settlement Department to the petitioner, as the defendant being in possession of the same had become its owner under Scheme No,VII of the Displaced Persons (Compensation & Rehabilitation) Act, 1958.
5. The petitioner filed revision before the Lahore High Court against the said judgment of the Additional District Judge, but without any success and hence the present petition for leave to appeal.
6. The contention raised on behalf of the petitioner before this Court has been firstly, that the question of legality of transfer of the said house by the Settlement Department in favour of the petitioner was not an issue before the learned Civil Court or the learned Additional District Judge, and secondly, that the learned Additional District Judge was not competent to go behind the order of the Assistant Settlement Commissioner (Land), whereby the house had already been transferred in the petitioner's name. It was further argued that although, the case of the petitioner was dismissed by the Civil Judge purely on the ground of want of notice to the respondent, but the learned Additional District Judge went into questions which were not in issue between the parties in the suit.
' As the questions raised require consideration, leave is granted.