2001 S C M R 338
2001 S C M R 338
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ
MUHAMMAD LEHRASAB KHAN---Petitioner
versus
Mst. AQEEL-UN-NISA and 5 other---Respondents
Civil Petition for Leave to Appeal No. 1433 of 1999, decided on 29th September, 2000.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 15-7-1999 passed in Writ Petition No.135/99).
(a) Constitution of Pakistan (1973)---
----Art. 199---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitutional petition---Writ of certiorari---Reappraisal .of evidence---Exercise of jurisdiction by High Court---Scope---Ordinarily High Court in its Constitutional jurisdiction, does not undertake to reappraise evidence in the matters to disturb the findings of fact but the Court would certainly interfere where such findings are found to be based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers---Where the District Court is the final Appellate Court and the Court in appropriate cases of special jurisdiction reverses the finding of the Trial Court on the grounds not supported by material on record, the High Court can interfere with such findings by issuing writ of certiorari to correct the wrong committed by the Appellate Authority---High Court can justifiably exercise its Constitutional jurisdiction as the same is supervisory as well as in aid and to sub-serve the cause of justice and to correct the wrong wherever the Court finds to have been committed being contrary to evidence and the law on the subject.
Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Lal Din Masih v. Sakina Jan 1985 SCMR 1972; Muhammad Hayat v. Sh. Bashir Ahmad and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul 1988 SCMR 401 and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514 ref.
(b) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Document of title---Proof of such document---Burden of proof---Mutation is not a document of title and such document by itself does not confer any title, right or interest---Burden of proof lies on the party who seeks to establish the genuineness of the transfer in his favour--Although record of rights are not instruments of title but unless rebutted, presumption of truth is attached to them.
(c) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Exclusion of heirs---Attestation on the basis of custom--- Validity---No mutation can be entered and attested on the basis of custom excluding other legal heirs of the propositus.
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----S. 13---West Pakistan Land Revenue Act (XVII of 1967), S.42--Ejectment of tenant---Mutation, proof of ownership---Petitioner being brother of the respondent, claimed exclusive ownership of the premises--Petitioner in proof of ownership relied on mutation of inheritance wherein the respondent sister was not included---Rent Controller did not rely on the mutation and decided the ejectment petition in favour of the respondent sister---Appellate Court reversed the findings of the Rent Controller, but High Court, in exercise of its Constitutional jurisdiction, set aside the order of Appellate Court and restored that of the Rent Controller---Validity---Rent Controller, in view of the evidence and the documents placed on record, was justified to hold the respondent sister as landlady---Appellate Court failed to appreciate the evidence both oral and documentary in its true perspective, hence, arrived at the erroneous conclusion and the same was rightly upset by High Court in its Constitutional jurisdiction.
Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Lal Din Masih v. Sakina Jan 1985 SCMR 1972; Muhammad Hayat v. Sh. Bashir Ahmad and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul 1988 SCMR 401; Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2,514 and Zafar Qureshi and others v. Khawaja Maqsoodul Hassan and others 1982 SCMR 392 ref.
Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.
Gulzar Ahmad Khan, Advocate and Ejaz Muhammad Khan, Advocate-on-Record for Respondents.
Date of hearing: 14th September, 2000.
JUDGMENT
MIAN MUHAMMAD AJMAL, J.---This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the validity of the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Writ Petition No. 135 of 1999 of Mst. Aqeel-un-Nisa respondent No. l was accepted and the order of the Appellate Court dated 26-10-1998 was set aside and that of the Rent Controller dated 31-3-1991 was restored.
2. Brief facts of the case are Mst. Sarwar Jan was owner of land measuring 5 Kanals 14 Marlas in Khasra No. 5318/3550 situated in Rawalpindi Mahal. She died in the year 1945. She was survived by Lehrasab Khan petitioner (son), Mst. Aqeel-un-Nisa respondent No. l and Mst. Umattil-Tahira (daughters). Lehrasab Khan petitioner claims that by virtue of customs he inherited the whole property left by Mst. Sarwar Jan to the exclusion of his sisters. The respondent No.1 claims inheritance in her mother's estate in accordance with Shariah. The respondent No. l filed a civil suit in respect of House No.1/677/626 against the petitioner to restrain him from making any alterations in it, claiming that she alongwith her sister Mst. Umat-ul-Tahira was the owner of the house and their brother, the petitioner was a tenant in it. The petitioner denied tenancy and claimed ownership of the house. The trial Court decreed the suit on 9-2-1980. Appeal filed by the petitioner was dismissed on 19-11-1981 by the Additional District Judge, Rawalpindi. The petitioner filed R.S.A. No. 25 of 1982 in the Lahore High Court, Rawalpindi Bench, which was dismissed as incompetent. He then filed C.P.L.A. No. 354 of 1984 before this Court which was dismissed on 17-3-1985 with the observation that if advised, the petitioner may avail the remedy of Civil Revision. He then filed Civil Revision No. 142 of 1985, which, too, was dismissed on 29-10-1990 by Lahore High Court, Rawalpindi Bench. On 10-4-1985, respondent No. l filed an ejectment petition against Mehboob Ahmad Shah, the predecessor-in-interest of respondents Nos.2 to 4 and Muhammad Saleem respondent No.5 (the alleged sublettee) for their eviction from the plot adjoining House No.677/626, Street No.3, Mohallah Qasimabad, Rawalpindi on the ground of default in payment of rent, subletting of the premises and for her personal use. The petition was resisted by the tenant, who denied the relationship of landlady and tenant. On 16-12-1985, the petitioner also filed an ejectment petition on the ground of personal use and for construction of a house over plot in dispute against Syed Mehboob Ahmad Shah for his eviction which was later amended for impleading his legal heirs. Respondents Nos.2 to 4 conceded to petitioner's claim and thus his petition was dismissed on 28-2-1988 as having become, infructuous. Thereafter the petitioner filed an application for his impleadment in the ejectment petition of respondent No. 1 which was rejected on 19-2-1989 by the learned Rent Controller, Rawalpindi. The predecessor of respondents Nos.2 to 4 did not appear to contest the ejectment petition, hence he was proceeded ex parte, and ex parte eviction order was passed against him on 22-2-1989. An appeal of the petitioner against it was also dismissed by the Additional District Judge, Rawalpindi on 12-9-1989. In the execution proceedings of the above ex parte decree, the petitioner filed an objection petition which, too, was dismissed on 2-9-1989. The appeal filed by him also met the same fate. He then assailed the above orders of the Rent Controller-and the Appellate Court in Writ Petition No.444 of 1989 which was adcand both the orders dated 12-9-1989 and 2-9-1989 were declared against law, without lawful authority and of no legal effect and the case was remanded to the Rent Controller to recommence proceedings in both the ejectment petitions of the petitioners and that of respondent No. l and decide the same afresh in accordance with law alongwith the petitioner's civil suit after allowing the parties to adduce evidence in support of their respective claims. After remand, respondents Nos.2 to 4 did not appear, thus ex parte proceedings were taken against them. The Rent Controller, on assessment of the evidence on record accepted the ejectment petition of respondent No. 1 and dismissed that of the petitioner vide his order dated 31-3-1991. Feeling aggrieved the petitioner filed an appeal before the Appellate Court, which was accepted on 26-10-1998 by the Additional District Judge, Rawalpindi, and in consequence, the ejectment petition of the petitioner was accepted and that of the respondent No. l was dismissed and she was directed to deliver the possession of the plot in dispute to the petitioner within three months. Feeling dissatisfied with the above decision, the respondent No. l invoked Constitutional jurisdiction of the Lahore High Court, Rawalpindi Bench through Writ Petition No. 135 of 1999, which was accepted vide judgment impugned herein, whereby the order of the Appellate Court was set aside and that of the Rent Controller was restored.
3. Learned counsel for the petitioner mainly contended that the High Court in its Constitutional jurisdiction was not justified to interfere with the finding of the Appellate Court in a rent matter which under the Rent Restriction Ordinance was the final Court in its own hierarchy. Moreover, the relationship of landlord and tenant being question of fact, could not be interfered with by the High Court in its writ jurisdiction.
4. There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayat v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v. Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514). In Rahim Shah's case, supra it was held:--
"The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."
In Lal Din Masih's case, supra this Court observed:
"The contention is that the High Court in the exercise of its writ jurisdiction could not interfere with a finding of fact recorded by the appellate forum. For this, reliance was placed on Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246. But the contention could prevail if, as observed in this cited case, the appellate forum had not flouted the provisions of the statute or failed to follow the law relating thereto as laid down by the superior Courts. No tender of rent in time for the alleged period of default had been made on the excuse that the landlord had refused to issue receipts. On this, the view taken by the appellate authority was that no receipt having ever been issued, the question of paying rent did not arise and that as such there was no question of any default on the part of the petitioner. On the question of personal need, the appellate authority held that the landlady being all alone was not in a position to live at Rawalpindi and that her story of strained relations with her daughter-in-law was coined only to provide some substance to her plea. Obviously the view taken was not only contrary to the established principles of law but also to the evidence on record. The High Court was therefore it its writ jurisdiction competent and justified to have interfered with the appellate order. No case is made out for grant of leave to appeal. "
In Muhammad Hayat's case, supra, it wasy held that where the order of Appellate Authority was based on misreading of evidence, such an order was not immune from interference in writ jurisdiction by the High Court. Similarly, in the case of Abdul Hamid, supra it was held:--
"The learned Single Judge in the High Court was right in holding that the learned Additional District Judge had misread the record and misdirected himself in holding that the bona fide of the plea had not been proved. The son of respondent No. l had stated that he had seen the shop. He was also able to give its exact area. Apparently, that part of the statement upon which the learned Additional District Judge relied had been taken out of the context. The observation that the application for eviction had been filed with the motive to obtain an increase in the rent was entirely conjectural. It was not disputed that the son of respondent No. l was a practising lawyer and that he had no premises in his possession for running his office. Iii the circumstances the learned Single Judge was right in interfering with the order of the learned Additional District Judge. "
To the same effect is the case of Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd., supra, wherein it was held:---
"In our view, it was not proper on the part of the learned Judges of the Division Bench of the High Court to have decided the above technical questions without getting first the decision of the Central Board of Revenue on the basis of the material which the parties might have produced before it in support of their claims. The High Court generally does not investigate disputed questions of fact in exercise of its Constitutional jurisdiction. However, it can interfere with a finding of fact if it is founded on no evidence or is contrary to the evidence on record or the inferences drawn therefrom are not in accordance with law."
In view of the above pronouncements, the High Court can justifiably exercise its Constitutional jurisdiction which is supervisory as well in aid and to sub-serve the cause of justice and to correct the wrong wherever it finds to have been committed being contrary to evidence and the law on the subject.
5. Another aspect of the case is that the petitioner has all along been urging right from the Court of Rent Controller to that of the learned High Court and now, in this Court, that he was an exclusive owner of the land in dispute under customs, thus, he was the landlord of Mehboob Ahmad Shah, while respondent No. l had no right of inheritance, therefore, she being not an owner could not claim to be the landlady of Mehboob Ahmad Shah. The objection that the High Court could not inferere with such matter, has no substance as the High Court had no option but to take into consideration all the material placed before it by the parties and had to adjudge the case on its proper appreciation and application of law on the subject. The petitioner, thus, was estopped by his conduct to raise any objection to the jurisdiction of the High Court. Reference is made to Zafar Qureshi and others v. Khawaja Maqsoodul Hassan and others (1982 SCMR 392).
6. Admittedly, the petitioner has sold 2 Kanals, 19 Marlas of land out of 5 Kanals, 14 Marlas left by their mother vide sale-deed dated 13-2-1958. As such, he had sold more than his 'share which he could inherit under Shariah from the estate of his mother. In earlier litigation between the petitioner and his sister respondent No. 1, with regard to the ownership of the house adjoining the plot in dispute, she and her sister were concurrently held to be the owners of the house up to the High. Court. It may be noted that the petitioner also filed a suit for declaration that he was owner in possession of plot in dispute and respondent No. 1 and his another sister have no right over it and also sought permanent injunction restraining them from claiming any right, title and ownership in it. This suit was dismissed as withdrawn on 31-5-1990. The Rent Controller while determining the relationship of landlord and tenant between respondent No. l and Mehboob Ahmad Shah, predecessor-in-interest of respondents Nos.2 to 4, took into consideration lease agreements executed between them from time to time i.e. Exh.A-19, Exh.A-23, Exh.A-25) and copy of the statement of Mehboob Ahmad Shah recorded in civil litigation between the petitioner and respondent No. l with regard to house adjoining the plot in dispute, wherein he admitted respondent No.1 to be his landlady (Exh.A-13), and held that Mehboob Ahmad Shah was a tenant under Mst. Aqil-un-Nisa, respondent No.1 and resultantly her ejectment petition against him was accepted. On appeal by the petitioner, who was not a party to the ejectment proceedings, the order of the Rent Controller was reversed by the District Judge, Rawalpindi observing that after the death of Mst. Sarwar Jan, inheritance Mutation No. 6902 dated 29-10-1952 was attested in favour of Muhammad Lehrasab Khan, as exclusive owner of the land measuring five Kanals' 17 Marlas comprised in Khasra No.5318/3350 and the aforesaid mutation was given effect to in the record of rights and there is nothing on record to show that any property was inherited by Mst. Aqil-un-Nisa on the death of her mother. As such, it was held that Muhammad Lehrasab Khan on the basis of 'Registrar Haqadaran Zameen' (Exh.R-20) was owner of two Kanals 17 Marlas as the entries contained in the revenue record show him to be the owner. On dispute over the land in question the petitioner filed a suit for declaration that he was exclusive owner in possession of plot in dispute and his sisters have no right in it, permanent injunction was sought to restrain them from claiming any right, title or ownership in it, which was dismissed as withdrawn on his own application on 31-5-1990. Thereafter he was estopped by his own conduct to allege similar claim subsequently. The inheritance mutation has not been placed on record and it appears that it was entered at the instance of the petitioner himself. It is well-settled principle of law that a mutation is not a document of title and it by itself does not confer any title, right or interest and burden of proof lies on the party who seeks to establish the genuineness of the transfer in his favour. Although record of rights are not instruments of title but unless rebutted, presumption of truth is attached to them. In this case, since the very basis i.e. inheritance mutation on which the whole edifice has been built, has not been proved by the petitioner to be lawfully entered as by then, by operation of law, the customs by virtue of The Muslim Personal Law (Shariat) Application Act, 1962 and Act XXVI of 1937 and IX of 1948 (sine repealed), had been abolished/abrogated, as such no mutation could be entered and attested on the basis of customs exciding other legal heirs of the propositus. The Appellate Court merely on the basis of revenue record was not justified to reverse the finding of the Rent Controller who had based its finding on documentary evidence holding respondent No. l to be the landlady of respondents No.2 to 4. Mehboob Ahmad Shah appeared as R.W.2 in the ejectment proceedings and in his examination-in-chief, he stated that he was a tenant bf Lehrasab Khan, the petitioner but in cross-examination he avoided to answer the question put to him and thereby suppressed the material facts. Sorry of his replies were against the legal record of the previous litigation, which shows that he deliberately suppressed the facts by giving false replies, in such circumstances his testimony being not confidence inspiring was not worth reliance. We are of the opinion that the Rent Controller was justified to hold respondent No. l as landlady in view of the evidence and the documents placed on record, whereas the Appellate Court failed to appreciate the evidence both oral and documentary in its true perspective, hence, it arrived at the erroneous conclusion which was rightly upset by the learned High Court in its Constitutional jurisdiction.
7. In view of the above, we do not find any merit in this petition and accordingly dismiss it. Leave is refused.
Q.M.H./M.A.K./M-179/S Petition dismissed.
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ
MUHAMMAD LEHRASAB KHAN---Petitioner
versus
Mst. AQEEL-UN-NISA and 5 other---Respondents
Civil Petition for Leave to Appeal No. 1433 of 1999, decided on 29th September, 2000.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 15-7-1999 passed in Writ Petition No.135/99).
(a) Constitution of Pakistan (1973)---
----Art. 199---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitutional petition---Writ of certiorari---Reappraisal .of evidence---Exercise of jurisdiction by High Court---Scope---Ordinarily High Court in its Constitutional jurisdiction, does not undertake to reappraise evidence in the matters to disturb the findings of fact but the Court would certainly interfere where such findings are found to be based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers---Where the District Court is the final Appellate Court and the Court in appropriate cases of special jurisdiction reverses the finding of the Trial Court on the grounds not supported by material on record, the High Court can interfere with such findings by issuing writ of certiorari to correct the wrong committed by the Appellate Authority---High Court can justifiably exercise its Constitutional jurisdiction as the same is supervisory as well as in aid and to sub-serve the cause of justice and to correct the wrong wherever the Court finds to have been committed being contrary to evidence and the law on the subject.
Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Lal Din Masih v. Sakina Jan 1985 SCMR 1972; Muhammad Hayat v. Sh. Bashir Ahmad and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul 1988 SCMR 401 and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514 ref.
(b) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Document of title---Proof of such document---Burden of proof---Mutation is not a document of title and such document by itself does not confer any title, right or interest---Burden of proof lies on the party who seeks to establish the genuineness of the transfer in his favour--Although record of rights are not instruments of title but unless rebutted, presumption of truth is attached to them.
(c) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Exclusion of heirs---Attestation on the basis of custom--- Validity---No mutation can be entered and attested on the basis of custom excluding other legal heirs of the propositus.
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----S. 13---West Pakistan Land Revenue Act (XVII of 1967), S.42--Ejectment of tenant---Mutation, proof of ownership---Petitioner being brother of the respondent, claimed exclusive ownership of the premises--Petitioner in proof of ownership relied on mutation of inheritance wherein the respondent sister was not included---Rent Controller did not rely on the mutation and decided the ejectment petition in favour of the respondent sister---Appellate Court reversed the findings of the Rent Controller, but High Court, in exercise of its Constitutional jurisdiction, set aside the order of Appellate Court and restored that of the Rent Controller---Validity---Rent Controller, in view of the evidence and the documents placed on record, was justified to hold the respondent sister as landlady---Appellate Court failed to appreciate the evidence both oral and documentary in its true perspective, hence, arrived at the erroneous conclusion and the same was rightly upset by High Court in its Constitutional jurisdiction.
Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Lal Din Masih v. Sakina Jan 1985 SCMR 1972; Muhammad Hayat v. Sh. Bashir Ahmad and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul 1988 SCMR 401; Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2,514 and Zafar Qureshi and others v. Khawaja Maqsoodul Hassan and others 1982 SCMR 392 ref.
Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.
Gulzar Ahmad Khan, Advocate and Ejaz Muhammad Khan, Advocate-on-Record for Respondents.
Date of hearing: 14th September, 2000.
JUDGMENT
MIAN MUHAMMAD AJMAL, J.---This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the validity of the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Writ Petition No. 135 of 1999 of Mst. Aqeel-un-Nisa respondent No. l was accepted and the order of the Appellate Court dated 26-10-1998 was set aside and that of the Rent Controller dated 31-3-1991 was restored.
2. Brief facts of the case are Mst. Sarwar Jan was owner of land measuring 5 Kanals 14 Marlas in Khasra No. 5318/3550 situated in Rawalpindi Mahal. She died in the year 1945. She was survived by Lehrasab Khan petitioner (son), Mst. Aqeel-un-Nisa respondent No. l and Mst. Umattil-Tahira (daughters). Lehrasab Khan petitioner claims that by virtue of customs he inherited the whole property left by Mst. Sarwar Jan to the exclusion of his sisters. The respondent No.1 claims inheritance in her mother's estate in accordance with Shariah. The respondent No. l filed a civil suit in respect of House No.1/677/626 against the petitioner to restrain him from making any alterations in it, claiming that she alongwith her sister Mst. Umat-ul-Tahira was the owner of the house and their brother, the petitioner was a tenant in it. The petitioner denied tenancy and claimed ownership of the house. The trial Court decreed the suit on 9-2-1980. Appeal filed by the petitioner was dismissed on 19-11-1981 by the Additional District Judge, Rawalpindi. The petitioner filed R.S.A. No. 25 of 1982 in the Lahore High Court, Rawalpindi Bench, which was dismissed as incompetent. He then filed C.P.L.A. No. 354 of 1984 before this Court which was dismissed on 17-3-1985 with the observation that if advised, the petitioner may avail the remedy of Civil Revision. He then filed Civil Revision No. 142 of 1985, which, too, was dismissed on 29-10-1990 by Lahore High Court, Rawalpindi Bench. On 10-4-1985, respondent No. l filed an ejectment petition against Mehboob Ahmad Shah, the predecessor-in-interest of respondents Nos.2 to 4 and Muhammad Saleem respondent No.5 (the alleged sublettee) for their eviction from the plot adjoining House No.677/626, Street No.3, Mohallah Qasimabad, Rawalpindi on the ground of default in payment of rent, subletting of the premises and for her personal use. The petition was resisted by the tenant, who denied the relationship of landlady and tenant. On 16-12-1985, the petitioner also filed an ejectment petition on the ground of personal use and for construction of a house over plot in dispute against Syed Mehboob Ahmad Shah for his eviction which was later amended for impleading his legal heirs. Respondents Nos.2 to 4 conceded to petitioner's claim and thus his petition was dismissed on 28-2-1988 as having become, infructuous. Thereafter the petitioner filed an application for his impleadment in the ejectment petition of respondent No. 1 which was rejected on 19-2-1989 by the learned Rent Controller, Rawalpindi. The predecessor of respondents Nos.2 to 4 did not appear to contest the ejectment petition, hence he was proceeded ex parte, and ex parte eviction order was passed against him on 22-2-1989. An appeal of the petitioner against it was also dismissed by the Additional District Judge, Rawalpindi on 12-9-1989. In the execution proceedings of the above ex parte decree, the petitioner filed an objection petition which, too, was dismissed on 2-9-1989. The appeal filed by him also met the same fate. He then assailed the above orders of the Rent Controller-and the Appellate Court in Writ Petition No.444 of 1989 which was adcand both the orders dated 12-9-1989 and 2-9-1989 were declared against law, without lawful authority and of no legal effect and the case was remanded to the Rent Controller to recommence proceedings in both the ejectment petitions of the petitioners and that of respondent No. l and decide the same afresh in accordance with law alongwith the petitioner's civil suit after allowing the parties to adduce evidence in support of their respective claims. After remand, respondents Nos.2 to 4 did not appear, thus ex parte proceedings were taken against them. The Rent Controller, on assessment of the evidence on record accepted the ejectment petition of respondent No. 1 and dismissed that of the petitioner vide his order dated 31-3-1991. Feeling aggrieved the petitioner filed an appeal before the Appellate Court, which was accepted on 26-10-1998 by the Additional District Judge, Rawalpindi, and in consequence, the ejectment petition of the petitioner was accepted and that of the respondent No. l was dismissed and she was directed to deliver the possession of the plot in dispute to the petitioner within three months. Feeling dissatisfied with the above decision, the respondent No. l invoked Constitutional jurisdiction of the Lahore High Court, Rawalpindi Bench through Writ Petition No. 135 of 1999, which was accepted vide judgment impugned herein, whereby the order of the Appellate Court was set aside and that of the Rent Controller was restored.
3. Learned counsel for the petitioner mainly contended that the High Court in its Constitutional jurisdiction was not justified to interfere with the finding of the Appellate Court in a rent matter which under the Rent Restriction Ordinance was the final Court in its own hierarchy. Moreover, the relationship of landlord and tenant being question of fact, could not be interfered with by the High Court in its writ jurisdiction.
4. There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayat v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v. Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514). In Rahim Shah's case, supra it was held:--
"The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."
In Lal Din Masih's case, supra this Court observed:
"The contention is that the High Court in the exercise of its writ jurisdiction could not interfere with a finding of fact recorded by the appellate forum. For this, reliance was placed on Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246. But the contention could prevail if, as observed in this cited case, the appellate forum had not flouted the provisions of the statute or failed to follow the law relating thereto as laid down by the superior Courts. No tender of rent in time for the alleged period of default had been made on the excuse that the landlord had refused to issue receipts. On this, the view taken by the appellate authority was that no receipt having ever been issued, the question of paying rent did not arise and that as such there was no question of any default on the part of the petitioner. On the question of personal need, the appellate authority held that the landlady being all alone was not in a position to live at Rawalpindi and that her story of strained relations with her daughter-in-law was coined only to provide some substance to her plea. Obviously the view taken was not only contrary to the established principles of law but also to the evidence on record. The High Court was therefore it its writ jurisdiction competent and justified to have interfered with the appellate order. No case is made out for grant of leave to appeal. "
In Muhammad Hayat's case, supra, it wasy held that where the order of Appellate Authority was based on misreading of evidence, such an order was not immune from interference in writ jurisdiction by the High Court. Similarly, in the case of Abdul Hamid, supra it was held:--
"The learned Single Judge in the High Court was right in holding that the learned Additional District Judge had misread the record and misdirected himself in holding that the bona fide of the plea had not been proved. The son of respondent No. l had stated that he had seen the shop. He was also able to give its exact area. Apparently, that part of the statement upon which the learned Additional District Judge relied had been taken out of the context. The observation that the application for eviction had been filed with the motive to obtain an increase in the rent was entirely conjectural. It was not disputed that the son of respondent No. l was a practising lawyer and that he had no premises in his possession for running his office. Iii the circumstances the learned Single Judge was right in interfering with the order of the learned Additional District Judge. "
To the same effect is the case of Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd., supra, wherein it was held:---
"In our view, it was not proper on the part of the learned Judges of the Division Bench of the High Court to have decided the above technical questions without getting first the decision of the Central Board of Revenue on the basis of the material which the parties might have produced before it in support of their claims. The High Court generally does not investigate disputed questions of fact in exercise of its Constitutional jurisdiction. However, it can interfere with a finding of fact if it is founded on no evidence or is contrary to the evidence on record or the inferences drawn therefrom are not in accordance with law."
In view of the above pronouncements, the High Court can justifiably exercise its Constitutional jurisdiction which is supervisory as well in aid and to sub-serve the cause of justice and to correct the wrong wherever it finds to have been committed being contrary to evidence and the law on the subject.
5. Another aspect of the case is that the petitioner has all along been urging right from the Court of Rent Controller to that of the learned High Court and now, in this Court, that he was an exclusive owner of the land in dispute under customs, thus, he was the landlord of Mehboob Ahmad Shah, while respondent No. l had no right of inheritance, therefore, she being not an owner could not claim to be the landlady of Mehboob Ahmad Shah. The objection that the High Court could not inferere with such matter, has no substance as the High Court had no option but to take into consideration all the material placed before it by the parties and had to adjudge the case on its proper appreciation and application of law on the subject. The petitioner, thus, was estopped by his conduct to raise any objection to the jurisdiction of the High Court. Reference is made to Zafar Qureshi and others v. Khawaja Maqsoodul Hassan and others (1982 SCMR 392).
6. Admittedly, the petitioner has sold 2 Kanals, 19 Marlas of land out of 5 Kanals, 14 Marlas left by their mother vide sale-deed dated 13-2-1958. As such, he had sold more than his 'share which he could inherit under Shariah from the estate of his mother. In earlier litigation between the petitioner and his sister respondent No. 1, with regard to the ownership of the house adjoining the plot in dispute, she and her sister were concurrently held to be the owners of the house up to the High. Court. It may be noted that the petitioner also filed a suit for declaration that he was owner in possession of plot in dispute and respondent No. 1 and his another sister have no right over it and also sought permanent injunction restraining them from claiming any right, title and ownership in it. This suit was dismissed as withdrawn on 31-5-1990. The Rent Controller while determining the relationship of landlord and tenant between respondent No. l and Mehboob Ahmad Shah, predecessor-in-interest of respondents Nos.2 to 4, took into consideration lease agreements executed between them from time to time i.e. Exh.A-19, Exh.A-23, Exh.A-25) and copy of the statement of Mehboob Ahmad Shah recorded in civil litigation between the petitioner and respondent No. l with regard to house adjoining the plot in dispute, wherein he admitted respondent No.1 to be his landlady (Exh.A-13), and held that Mehboob Ahmad Shah was a tenant under Mst. Aqil-un-Nisa, respondent No.1 and resultantly her ejectment petition against him was accepted. On appeal by the petitioner, who was not a party to the ejectment proceedings, the order of the Rent Controller was reversed by the District Judge, Rawalpindi observing that after the death of Mst. Sarwar Jan, inheritance Mutation No. 6902 dated 29-10-1952 was attested in favour of Muhammad Lehrasab Khan, as exclusive owner of the land measuring five Kanals' 17 Marlas comprised in Khasra No.5318/3350 and the aforesaid mutation was given effect to in the record of rights and there is nothing on record to show that any property was inherited by Mst. Aqil-un-Nisa on the death of her mother. As such, it was held that Muhammad Lehrasab Khan on the basis of 'Registrar Haqadaran Zameen' (Exh.R-20) was owner of two Kanals 17 Marlas as the entries contained in the revenue record show him to be the owner. On dispute over the land in question the petitioner filed a suit for declaration that he was exclusive owner in possession of plot in dispute and his sisters have no right in it, permanent injunction was sought to restrain them from claiming any right, title or ownership in it, which was dismissed as withdrawn on his own application on 31-5-1990. Thereafter he was estopped by his own conduct to allege similar claim subsequently. The inheritance mutation has not been placed on record and it appears that it was entered at the instance of the petitioner himself. It is well-settled principle of law that a mutation is not a document of title and it by itself does not confer any title, right or interest and burden of proof lies on the party who seeks to establish the genuineness of the transfer in his favour. Although record of rights are not instruments of title but unless rebutted, presumption of truth is attached to them. In this case, since the very basis i.e. inheritance mutation on which the whole edifice has been built, has not been proved by the petitioner to be lawfully entered as by then, by operation of law, the customs by virtue of The Muslim Personal Law (Shariat) Application Act, 1962 and Act XXVI of 1937 and IX of 1948 (sine repealed), had been abolished/abrogated, as such no mutation could be entered and attested on the basis of customs exciding other legal heirs of the propositus. The Appellate Court merely on the basis of revenue record was not justified to reverse the finding of the Rent Controller who had based its finding on documentary evidence holding respondent No. l to be the landlady of respondents No.2 to 4. Mehboob Ahmad Shah appeared as R.W.2 in the ejectment proceedings and in his examination-in-chief, he stated that he was a tenant bf Lehrasab Khan, the petitioner but in cross-examination he avoided to answer the question put to him and thereby suppressed the material facts. Sorry of his replies were against the legal record of the previous litigation, which shows that he deliberately suppressed the facts by giving false replies, in such circumstances his testimony being not confidence inspiring was not worth reliance. We are of the opinion that the Rent Controller was justified to hold respondent No. l as landlady in view of the evidence and the documents placed on record, whereas the Appellate Court failed to appreciate the evidence both oral and documentary in its true perspective, hence, it arrived at the erroneous conclusion which was rightly upset by the learned High Court in its Constitutional jurisdiction.
7. In view of the above, we do not find any merit in this petition and accordingly dismiss it. Leave is refused.
Q.M.H./M.A.K./M-179/S Petition dismissed.
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