Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 46 of 1997

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing: 07.12.2018.

Mr. A. M. Mobeen Khan, Advocate for the applicants.

Mr. Safdar Ali Bhatti, Advocate for legal heirs of respondent No.1.

Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – This Revision Application is against the concurrent findings of two Courts below.

2. Briefly, the facts of the case are that one Mian Khan son of Gaji Khan filed a Suit bearing No.48 of 1986 (Old No.79 of 1983) against Province of Sindh and 6 others which include Allah Wadhayo, Sahib Khan, Pir Bakhsh alias Peeral and Muhammad Moosa. The Suit was for declaration, possession, cancellation of documents and permanent injunction. Plaintiff pleaded in the ultimate para of the cause of action that the defendants refused to pay rent and subsequently efforts were made by defendants No.4 to 9 to obtain some bogus documents.

3. After service of notices and summons, the Suit was contested by the applicants, who were defendants in the Suit, and they denied the allegations raised in the plaint. It is also denied that the applicants, who were defendants in the Suit were tenants and that respondents / plaintiffs were landlords and/or owners. They also challenged the maintainability of the Suit on the touchstone that as against alleged tenants, a Suit for possession cannot be maintained.

4. The evidence was recorded by the parties.

5. It is one of the issue framed by the trial Court as to whether plaintiff is the owner of the property. While deciding the issue in respect of the ownership of the party, an earlier judgment in Suit No.13 of 1957 was relied upon. This Suit was filed by one Syed Ghulam Hyder Shah against Godo son of Gaji, Mst. Sachul, Haji Muhammad Hassan and Gahno. Godo is the brother of plaintiff who filed the present Suit No.48 of 1986 (Old No.79 of 1983), out of which this revision has arisen.

6. In the said Suit No.13 of 1957, an issue was framed as to “who is the owner of the property”. At the very outset, I don’t find such issue should have been framed as the language and wording of the issue is not proper. The proper issue should have been “as to whether plaintiff (in that Suit) was the owner of the Suit property” as only plaintiff was claiming ownership in the Suit. There can’t be a decree in respect of the title in favour of the defendants, therefore, in my view the language of the issue as framed by the trial Court was not proper.

7. Be that as it may, on the basis of such findings and on the basis of the report of Survey Superintendent, the present Suit No.48 of 1986 (Old No.79 of 1983) was decreed and the documents sought to be cancelled, were accordingly, cancelled in terms of the decree. One of the significant ground taken by the applicants is that since the respondents / plaintiffs were considering the applicants as tenants, the trial Court and the appellate Court should have dismissed the Suit to the extent of possession as the jurisdiction in between landlord and tenant, since it is pleaded in para 17 of the plaint, ought to have been exercised by the Rent Controller and not by the Civil Court.

8. Learned counsel for the applicants has further relied upon the definition of Section 13 of the Sindh Rented Premises Ordinance as it was promulgated when the Suit was filed. The findings as far as the other issues are concerned that relate to the documents sought to be cancelled are concurrent, PT-I and other tax related documents cannot decide the title in favour of the applicants. It is only for the purpose of taxation that these alleged documents were obtained and issued which regulate possession and the tax payable thereon, however, title is altogether different consideration. Hence, the applicants cannot succeed on the strength of these documents to claim title. Finding of two Courts below, as such, to the extent of cancellation require no interference.

9. Be that as it may, learned counsel for the respondents also at this point concedes without prejudice that since the eviction application should have been filed by them before the Rent Controller, however, findings to the extent of these documents have reached finality.

10. I am in the agreement with the contention of the learned counsel for the respondents that insofar as these ancillary reliefs followed by declaration are concerned that relate to the documents, the Civil Court and the appellate Court have rightly exercised their jurisdiction, but insofar as the possession is concerned, on the basis of pleadings and in terms of para 17 of the plaint, it is regulated by the Rent Controller in terms of Section 13 of the Sindh Rented Premises Ordinance, 1979.

11. Hence, I do not approve the findings to the extent of possession since the question of title and ownership has already been decided earlier in Suit No.13 of 1957 and the relation was impliedly conceded by applicants. The documents were lawfully sought to be cancelled subsequently in Suit No.48 of 1986 (Old No.79 of 1983), however, in case the respondents intend to exercise their rights to evict the applicants as being their tenants, as conceded above, who have failed to pay rent, they may do so and the applicants may take any kind of defence as they deem fit and proper.

12. With these observations, the judgment and decree to the extent of documents / title are maintained, whereas, as far as the possession is concerned, as agreed by both counsel, the revision is disposed of in the above terms.

J U D G E

Abdul Basit