MUHAMMAD HAYAT vs DILSHAD HUSSAIN SHAH and others

ORDER

' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 20-3-2002 whereby a learned Single Judge of the Lahore High Court, Lahore, dismissed Civil Revision No,548 of 2002 filed by the petitioner maintaining the earlier determinations rendered by the learned Civil Judge Ist Class, Sheikhupura, and the learned Additional District Judge, Sheikhupura.

2. The dispute in this case pertains to Shops Nos.BII-S2-1/B and BII-S2-1/C which were purchased by one Masood Ahmad in an open auction held by the Settlement Department in the year 1960.. The present petitioner purchased the above shops for a consideration of Rs,5,000 from the aforesaid Masood Ahmad through registered sale-deed dated 24-4-1974. The respondent's predecessor-in- interest Dil Muhammad Shah also purchased Shops Nos.BII-S2-1/D and BII-S2-1/E in the year 1960 from the Settlement Department and secured P.T.D. He also constructed Chowbara over the shops in the year 1964. A dispute arose between the respondent's predecessor-in-interest and the petitioner whereupon Dil Muhammad Shah filed a declaratory suit on 27-1-1986 claiming that he was owner of Shop No,BII-S2-!/D with which the respondents had no concern. The petitioner/defendant contested the same. Out of contradictory pleadings of the parties, issues were framed, the parties led their evidence and the learned Civil Judge, Sheikhupura, through his judgment dated 23-12-1999 decreed the suit. The petitioner filed an appeal assailing the above judgment, which was dismissed by the learned Additional District Judge, Sheikhupura, vide his judgment dated 3-1-2002. Civil Revision No,548 of 2002 against the aforesaid two judgments also met the same fate and was dismissed by a learned Single Judge of the Lahore High Court, Lahore, through the impugned judgment dated 20-3-2002. Hence, this petition for leave to appeal.

3. We have considered the contentions raised by the learned counsel for the petitioner and have gone through the documents appended with this petition. It is reflected from the perusal thereof that the property bearing No,BII-S2-1 was consisted of 15 shops and was originally owned by one Amlook Ram, an evacuee. The Settlement Department (Urban) numbered these shops as BII-S2- 1/A to BII-S2-1/O running from North towards South. The respondent's predecessor-ininterest after securing the shops constructed a Chowbara over there in the years 1964. He rented out the said property to Yaqoob Ali Shah (respondent No,22) vide agreement dated 10-5-1968 who sublet the same to Muhammad Abbas (respondent No,21). The predecessor-in- interest of the respondents filed an ejectment petition before the learned Rent Controller but the same was dismissed. An appeal against the same was also dismissed vide judgment dated 3-2-1985. While dismissing the same the learned Additional District Judge observed that the question of title could not be decided by the learned Rent Controller and the Civil Court in the circumstances would be competent forum to decide the same. In this background, the plea of the learned counsel for the petitioner that the suit was barred by time is devoid of any force. The predecessor-ininterest of the respondents was pursuing the proceedings before the Rent Controller in a bona fide manner and when the learned Additional District Judge held it a disputed question of title he filed the aforesaid suit. The dispute before the Rent Controller was of relationship of landlord and tenant between the parties and not of title, as such the bar of limitation would not be attracted in view of section 14 of the Limitation Act. It is also reflected as earlier stated that the Chowbara over the shop was constructed by the predecessor-in-interest of the respondents Dil Muhammad Shah and the petitioner cannot lay claim to the same. A question of fact after thrashing the record has been determined by the two Courts below and the learned Single Judge of the Lahore High Court has also advanced cogent reasons in maintaining the same after the perusal of the record. It would be appropriate to reproduce his determination in this regard, which is in the following terms:-- "5. The perusal of record appended with this petition shows that Shop No,BII-S2-1/D located at Serial No,4 in the building (previously owned by Amlook Ram) was allotted to Dil Muhammad Shah and P.T.D. Was accordingly issued in his favour. It is also clear from the record that the contention of the learned counsel that Shop No,BII-S2-1/D and Shop No,BII-S2- 1/2 was one and the same, is without substance. Even otherwise it is clear from the record that there was a Chowbara over Shops Nos.BII-S2-1/D and BII-S2-1/E which was constructed by Dil Muhammad Shah, plaintiff.

Muhammad Hayat petitioner purchased shops vide registered sale-deeds (Exh.D.1 and Exh.D.2) and perusal of the same does not indicate that there was any Chowbara over the property purchased by him. It is pertinent to note that Muhammad Hayat petitioner/defendant did not bother to produce P.T.D. Issued in favour of original owner Masood Ahmed son of Muhammad Khan, in support of his version. The learned trial Court observed that property bearing No, BII-S2-1/D was allotted to Dil Muhammad Shah and the same was in possession of Boota and the P.T.D. Issued in favour of Dil Muhammad Shah had never been cancelled. It is crystal clear from the record that the suit property was allotted to Dil Muhammad Shah plaintiff. The plaintiff did not produce any worth while evidence in support of his version. The contention of the learned counsel that suit was time- barred, is devoid of force as his appeal was dismissed by the learned Additional District Judge, Sheikhupura vide judgment dated 3-2-1985 and he filed this suit on 26-1-1986. The plaintiff prosecuted said proceedings in good faith. So in the circumstances of the case Appellate Court had rightly excluded time spent in previous litigation."

Resultantly, for what has been stated above, the instant petition being without any force is accordingly dismissed and .