In the Court of Civil Judge, Ist Class, Shujabad.

Abdul Aziz Shah Vs. Ghulam Qadir & others

Suit for declaration

STAY APPLICATION.
Authorities referred to on behalf of respondents.

S. No. Citation. Jist of Authority.

1. 1996 MLD 1389 (b) Agreement to sell or exchange could
only be implemented if suit for
specific performance is brought in
the court. Suit in the form of
declaration is incomplete and not
maintainable.
2. PLD 1980 Lah 647 at 649 Order 39 Rules 1,2 C.P.C.---Suit
itself not found maintainable---
Court can neither give final verdict
nor decide interlocutory matters
arising therein.
3. 1997 MLD 2262 (a) Mere agreement to sell or exchange
would not create any interest or title
in the immovable property.
4. 1995 MLD 803 (b) Order 39 rules 1& 2 C.P.C.---
Plaintiff is to show his right and
further as to how his right shall be
ignored unless stay is granted if at
present no right in the property,
question of its injury does not arise.
5. 1993 SCMR 618 (b) Sec. 42 Land Revenue Act.----
Mutation---when mutation is not
 legal and proper, the entire structure
built on it shall crumble.
Further held---entries in the
mutation record on fiscal in nature,
do not create any title or interest in
favour of the person in whose name
such entries had been made.
6. Sec. 172 Land Rev. Act. No Civil Court shall have
jurisdiction in any matter, which the
BOR or any Revenue officer is
empowered by the Act to dispose of,
or take cognizance of the matter in
which BOR or any Revenue officer
any powers vested in it or by him or
under this Act.

Through: -
Zaffar Iqbal Khan,
Advocate
124-District Courts, Multan.
(Counsel respondents)
 IN THE COURT OF DISTRICT JUDGE/RENT APPELLATE
AUTHORITY, MULTAN.

Sufi Sheikh Muhammad Sadiq S/o Ahmad Ali, caste Sheikh, R/o
Plot No. 221-Timber Market, Multan.
Appellant
Versus
1. Muhammad Iqbal S/o Ameer Bakhsh, caste Jat Soomra, R/o
Plot No. 243-Timber Market, Multan.
2. Abdul Khaliq
3. Abdul Malik (minor) in the guardianship of
4. Muhammad Nasir (minor) Abdul Khaliq real brother.
Respondents No. 2 to 4 sons of Ghulam Muhammad, caste Jat
Soomra, Rs/o Chowbara Plot No. 243, Timber Market,
Multan.
Respondents

Appeal u/s 115 of the West Pakistan Urban

Rent Restriction Ordinance 1959 against the
judgment & decree dated 20.6.2000 passed
by Ch. Muhammad Azam Civil Judge/Rent
Controller, Multan whereby he, by accepting
the eviction application filed by the
respondents, directed the appellant to vacate
the suit premises within one month.

CLAIM IN APPEAL: -
To accept the appeal and by setting aside
impugned judgment and decree to reject the
ejectment application of the respondents.

VALUE OF APPEAL: -
Rs. 8,400/- (the rent of one year at the rate
of Rs. 700/- per month).

Respectfully Sheweth: -
1. Facts which transpired from pleadings of the parties are that a
plot No. 221, measuring one kanal situated in Timber Market,
 Multan, was firstly allotted by M.D.A. to Sajjad Hussain and
Khurshid Ahmad, who sold the same to Haji Muhammad and
Ghulam Muhammad through an agreement executed on
11.6.79. This sale was ultimately got recorded in the record of
M.D.A. by the said Sajjad Hussain and Khurshid Ahmad in
the name of said Haji Muhammad & Ghulam Muhammad on
20.8.97: who further transferred their rights in favour of the
respondents on 8.9.97. The respondents on 19.10.97 field the
present ejectment application against the appellant that he,
being tenant under the previous allottee, has become tenant
under them by operation of law and he, having committed
default in payment of rent from 8.9.97, the date, plot was
transferred in their name in the record of M.D.A. upto the date
of filing of the ejectment application.

2. Appellant contested the application. He denied the

relationship of landlord and tenant between the parties. He
contended that that plot was originally allotted to Sajjad
Hussan and Khurshid Ahmad who transferred their rights in
the plot in favour of Haji Muhammad and Ghulam
Muhammad. Haji Muhammad further transferred his share of
the plot in favour of Ghulam Sarwar on the basis of agreement
and decree of Court based on compromise. Ghulam
Muhammad agreed to transfer his share to him through a
written deed of agreement to sell dated 10.11.94 Ex-R9 and in
part performance handed over possession of share of plot
along-with upper portion. He further stated in evidence that
Ghulam Sarwar sold out his share of plot along-with
machinery to him and since then he is in possession of the plot
and made development to the tune of twelve lacs (Rs.
12,00,000/-) through a separate application, the appellant
further pleaded that property in dispute being a saw-mill, does
not come within the definition of building or land and
therefore eviction application regarding this property is not
maintainable before the Rent Controller.
3. From pleadings of the parties, learned Rent Controller settled
the following issues: -

(1) Whether there exist relationship of landlord and tenant

between the parties? OPA.

(2) Whether the ejectment petition is not maintainable?

OPR.

(3) Whether the ejectment petition liable to be stayed?

OPR.

(4) Whether the petition is false and frivolous and

respondent is entitled to special costs? OPR.

(5) Relief.

On assessment of the evidence brought on the record,

learned Rent Controller decided all the issues in favour of the
respondents and held that relationship of landlord and tenant
exists between the parties and there are no such circumstances
which make the ejectment petition non-maintainable and
pendency of suit for specific performance does not effect the
ejectment proceedings and as such not liable to be stayed and
the ejectment petition is not frivolous therefore no question of
special costs. Consequently he allowed the eviction
application and directed the appellant to vacate the suit
premises within one month and further declared that
respondents are entitled to recover the rent of Rs. 700/- per
month w.e.f. 8.9.97 upto 15.10.97 the date of filing the
ejectment application and also further rent will be recoverable
till eviction of the appellant. Copy of the judgment and decree
is annexed herewith.

4. That the impugned judgment and decree is bad in law and not
maintainable inter alia on the following
 GROUNDS

A) That finding on issue No.1 is the result of misreading

and non-reading of the evidence on record. It was
proved on the record that Haji Muhammad sold his
share of the plot and handed over possession to Ghulam
Sarwar after receiving full sale price through a
compromise in a suit filed by him against Haji
Muhammad and others and obtained a decree in his
favour and against Haji Muhammad. The learned Rent
Controller has failed to consider the important
documents Ex-R1 to Ex-R7. It was further proved on
the record that said Ghulam Sarwar—decree holder—
further sold the said share along-with Machinery of plot
through documents Ex-R11 and Mark C to Muhammad
Sadiq appellant after receiving full sale price from him
and handed over possession of the same to him. It was
promised by Haji Muhammad that on securing its
allotment from M.D.A., he shall get his rights in the
plot transferred in favour of Ghulam Sarwar who in turn
shall do the same in favour of Muhammad Sadiq but on
securing the allotment on the statement of Sajjad
Hussain and Khurshid Ahmad in the record of M.D.A.
on 20.8.97, Haji Muhammad, instead of getting his
rights transferred in the name of Ghulam Sarwar, he
secretly and in violation of agreement and decree of the
court transferred his rights in favour of his nephew
Muhammad Iqbal respondent. Under an agreement Ex-
R9 Ghulam Muhammad was also bound to transfer his
share of the plot in favour of Muhammad Sadiq
appellant, he, also in violation of agreement got the
same transferred to his real sons respondents No. 2 to 5.
Muhammad Sadiq appellant is in possession of the half
share of plot as owner as Haji Muhammad conveyed all
the interest in the plot under the agreement and decree
of the court read with documents Ex-R11 and Mark C
 and the second half under the part performance of
agreement to sell Ex-R9 and as such no relationship of
landlord and tenant exists between the parties. The
learned Rent Controller has failed to consider this
material documentary as well as oral evidence on the
record which has resulted in miscarriage of justice. He,
in fact allowed the respondents in collusion with Haji
Muhammad & Ghulam Muhammad to set up and get
benefit of their own fraud in the court of justice. Even
otherwise the appellant, being in possession of the plot
in part performance of written agreement of sale, he
could not be dispossessed of property till specific
performance of contract nor the transferors Haji
Muhammad and Ghulam Muhammad or the
respondents claiming under them could exercise any
other right except right acquired under agreements.
Finding on issue No. 1 is perverse and legally not
maintainable and is liable to be set aside and reversed.

B) Finding on issue No. 2 is also misconceived. The

appellant raised an objection through a separate
application that admittedly plot in dispute is situated in
the commercial/factory area of Timber market, Multan
and is a saw-mill since 1979. This saw-mill does not
fall within the definition of building or land as defined
in sec. 2 of the ordinance. As such the eviction
application in respect of a saw-mill was not
maintainable but the learned Rent Controller rejected
the plea on a whimsical ground without adverting to the
evidence and admissions on the record in this respect.
Impugned judgment and decree as such has been passed
without jurisdiction and is nullity in the eye of law.

C) That two separate suits for specific performance of

agreement of sale---one for Southern part of the plot
titled Ghulam Sarwar Vs. Haji Muhammad others and
the 2nd for Northern part of the plot titled as Sufi
 Muhammad Sadiq Vs. Ghulam Muhammad etc. are
pending in the Civil Court. In both the suits stay orders
are issued to maintain Status quo in respect of
alienation and possession of the suit plot. Copies of the
two plaints were produced in evidence as Ex-R12 and
Ex-R14. In PLD 1971 SC 114 and PLD 1971 SC 456,
the August Supreme Court repeatedly held---that if a
person is in possession of the property in part
performance of an agreement of sale---sec 53-A would
afford a valid defence against ejectment. Learned Rent
Controller, having misread the evidence on record, has
failed to appreciate this legal point and as such finding
on issue No. 3 is also incorrect.

D) That Haji Muhammad had already conveyed his rights

in the plot to Ghulam Sarwar who in turn further
conveyed the same to Muhammad Sadiq. Haji
Muhammad had nothing left in the plot to convey to
Muhammad Iqbal. Ghulam Muhammad had also under
an agreement of sale Ex-R9 bound himself to transfer
his right in his share of the plot to Muhammad Sadiq
and in part performance handed over possession of his
share of plot to the appellant. But both of them
fraudulently and in violation of their agreements &
decree of the court, transferred their rights in the plot to
the respondents and as such they tried to deprive the
appellant and Ghulam Sarwar of their valuable rights in
the plot. In view of the above facts, the respondents do
not derive any title, right or interest in the property.
Their ejectment application is frivolous; collusive based
on dishonesty, just with malafide intention to riggle out
of a lawful bargain. Respondents have not come to the
court with clean hands and as such they were not
entitled to any relief. Their such dishonest action has
made the appellant to undergo a stress of mantle pain
and loss of money. The appellant as such is entitled to
 special/exemplary costs. Finding on issue No. 4 is also
incorrect.

E) That plot in dispute was jointly allotted by M.D.A.

firstly to Sajjad Hussain and Khurshid Ahmad who
transferred their rights in the plot in favour of Haji
Muhammad and Ghulam Muhammad jointly. Under the
rules of M.D.A. plot in question can not be divided.
Respondents also alleged that plot is jointly owned by
them. Vide decree of the court Ex-R1 to R7. Half
portion of the plot belonging to Haji Muhammad was
declared to be the ownership of Ghulam Sarwar who
further sold his rights in the plot to the appellant and as
such the appellant could not be ejected from any
portion of the plot otherwise the provisions of Sec. 53-
A of the Transfer of Property Act shall be defeated
which cannot be allowed under the law.

F) That the impugned judgment and decree is against law

and facts and is result of non-reading of material
evidence on the record regarding cessation of
relationship of landlord & tenant. This omission to read
material evidence has resulted in great miscarriage of
justice.
Wherefore, it is respectfully prayed that
appeal be accepted, the impugned judgment and
decree be set aside and respondents’ application for
ejectment be dismissed with costs throughout and
special costs also be awarded to the appellant.
Humble Appellant

Note: -
This is the first appeal against
the judgment and decree. No
other appeal has been filed.
Advocate
Through: -
Zaffar Iqbal Khan,
Advocate
124-District Courts, Multan.
 IN THE COURT OF DISTRICT JUDGE/RENT APPELLATE
AUTHORITY, MULTAN.

Sufi Sheikh Muhammad Sadiq Vs Muhammad Iqbal etc.

STAY APPLICATION

Respectfully Sheweth: -
1. That the above captioned appeal has been filed.
2. That grounds of the appeal may kindly be read as part of this
application.
3. That the appellant has a good prima facie case and balance of
convenience also tilts in favour of the appellant not
disleading the flourishing business of the appellant and in
case the appellant is dislocated/ejected from the suit
premises, he shall suffer irreparable loss and his appeal shall
become infructuous.
Wherefore, it is, respectfully prayed that the
impugned judgment and decree be suspended till the
final decision of appeal.
Affidavit attached.
Applicant
Dated: 13.7.2000
(Sufi Sheikh Muhammd Sadiq)

Through: -
Zaffar Iqbal Khan,
Advocate
124-District Courts, Multan.
 THE COURT OF DISTRICT JUDGE/RENT APPELLATE
AUTHORITY, MULTAN.

Sufi Sheikh Muhammad Sadiq Vs Muhammad Iqbal etc.

STAY APPLICATION

AFFIDAVIT of: -
Sufi Sheikh Muhammad Sadiq S/o Ahmad Ali, caste
Sheikh, aged 76 years, R/o Plot No. 221-Timber
Market, Multan.

I, the above named deponent do hereby

solemnly affirm and declare that the contents of the
above appeal are true and correct to the best of my
knowledge and belief and nothing has been kept
concealed thereto.

DEPONENT

Verification: -
Verified on oath at Multan, this ____day of July
2000 that the contents of this affidavit are true to the
best of my knowledge and belief.

DEPONENT
 IN THE COURT OF MIAN SAJJAD AHMAD CHAWAN,
ADDL. DISTRICT JUDGE, MULTAN.

In re:
Muhammad Ramzan etc. Vs. Malik Murad Abbas etc.
…..Appellants ……Respondents

APPEAL
NOTES OF ARGUMENTS AND
PARAWISE REPLY OF

Grounds (a) to (w) as taken in memo of

appeal submitted on behalf of respondents.
______________

Ground (a). That no proper issues were framed as arose

out of the pleadings of the parties.

Answer: - The learned Trial Court framed all proper

issues as claimed by the parties’ counsels.
Further amended issues, on the application
of the plaintiff were also framed and the
parties were fully aware of the respective
stand of each other. It is also obligatory
upon the parties to bring to the notice any
deficiency or defect, which may hinder a
proper trial.
CASE LAW: - (1) PLD-1951-Lah-113
Held---If there was anything
wrong with the issues, it was for the