PLJ 2022 Lahore (Note) 14
Civil Procedure Code, 1908 (V of 1908)--
----O.XXII R. 13--Suit for administration of property--Heritable right--Leasehold rights of lessee--Death of lessee--Names of legal heirs of deceased were incorporated as lessees of suit plot--Continuity of lease--Placement of receipts of payment of dues to LDA--Challenge to--T enancy is a heritable right unless a legal bar operate against heritability is shown to exist whereas from perusal of lease agreement, no such restriction is imposed by L.D.A.--Leasehold rights of a lessee are inheritable among legal heirs and after his death, such right of lesser by operation of law vests in his heirs and; suit for administration is maintainable under law--No document of cancellation of lease by competent authority has been brought on record--Petitioners produced a letter issued by Deputy Director, L.D.A which shows that names of legal heirs of deceased were incorporated as lessees of plot No. 57, Old Rifle Range (Now Chauburji Park) Lahore--Letter unambiguously shows continuity of lease till 2040 and also points out default of payment of lease money but petitioners placed on record some receipts of payment of dues to L.D.A, as such, findings of Courts below are against record and patently illegal which deserve reversal--Revision petition allowed.
[Para 6, 9 & 10] A, B, C & D
1968 SCMR 341, PLD 1962 SC 291, PLD 1962 (W.P.) Karachi 663, PLD 1966 Pesh. (W.P.) 159, PLD 1999 Lah. 1, 2017 MLD 1867 &
2018 CLC 970 ref.
Mr. M. A. Gohar, Advocate for Petitioners.
Mr. Azam Jan Muhammad, Advocate for Respondents.
Date of hearing: 14.1.2019.
PLJ 2022 Lahore (Note) 14
Present: Ch. Muhammad Iqbal, J.
NOROZ-UD-DIN BHATTI etc.--Petitioners
versus
ZAHEER-UD-DIN BHATTI etc.--Respondents
C.R No. 3460 of 2015, decided on 14.1.2019.
Judgment
Through this civil revision, the petitioners have challenged the validity of the judgment and decree dated 19.10.2011, passed by the learned Civil Judge, Lahore whereby suit for administration filed by the petitioners was dismissed and the judgment and decree dated 13.10.2015, passed by the learned Additional District Judge, Lahore dismissing the appeal of the petitioners.
2. Brief facts of the case are that predecessor-in-interest of the parties to the lis namely, Ahmad Din Bhatti, obtained a Plot No. 57, Old Rifle Range (Now Chauburji Park) Lahore on 90 years lease, from Lahore Improvement Trust (now Lahore Development Authority). He constructed double storey house on the said plot from his own pocket. Said Ahmad Din Bhatti died on 31.07.1981 leaving behind the parties to the lis as his legal heirs. The petitioners filed suit for administration of property on 26.02.2002 in which the respondents/defendants did not appear and they were proceeded against ex-parte. The learned trial Court recorded evidence of the petitioners and vide judgment and decree dated 19.10.2011 dismissed the suit. The petitioners filed an appeal which was also dismissed by the learned appellate Court vide judgment and decree dated 13.10.2015. Hence, this civil revision.
3. Learned counsel for the petitioners submits that the learned trial Court non-suited the petitioner on the sole ground that the ownership is in favour of Lahore Development Authority (L.D.A.) and the predecessor-in-interest of the parties to the lis was only a lessee of L.D.A whereas the learned appellate Court dismissed the appeal on the ground that the lease was not in existence. Further submits that findings of both the learned Courts below are illegal as the suit for administration is maintainable as till date, lease exits in favour of the parties to the lis and they are paying the lease money to L.D.A. Learned counsel produced receipt of payment of lease money in support of his arguments.
4. Learned counsel for the respondents submits that the respondents are in possession of the suit property and both the learned Courts below rightly dismissed the suit filed by the petitioners.
5. Heard. Record perused.
6. The learned trial Court has dismissed the suit for administration on the ground that the petitioners/plaintiffs were not absolute owner of the suit property therefore, suit for administration is not maintainable. These findings are not sustainable in the eyes of law. The suit for administration was filed under Order XXII Rule 13 C.P.C. by the petitioners. Admittedly, the predecessor-in-interest of the parties to the lis obtained the suit property on lease from the Lahore Improvement Trust (now L.D.A) and constructed a double storey house over there from his own pocket. It is settled law that the tenancy is a heritable right unless a legal bar operate against heritability is shown to exist whereas from the perusal of the lease agreement, no such restriction is imposed by L.D.A. Admittedly, on the basis of a decree a competent Court declared that the parties to the lis are legal heirs of deceased Ahmad Din Bhatti and under the command of said decree, L.D.A. incorporated the names of all the legal heirs of Ahmad din Bhatti in the official record as lessee and the L.D.A was receiving rent from the parties to the lis. The aforementioned leasehold rights of a lessee are inheritable among the legal heirs and after his death, such right of the lesser by operation of law vests in his heirs and suit for administration is maintainable under the law. Reliance is placed on Muhammad Sohrab Ali and others v. Bazlur Rahman Mian and others (1968 SCMR 341). For ready reference, relevant portion is reproduced as under:
“A lease-hold interest being a heritable and a transferable interest could be transferred to another person and, as such, the mere transfer of such an interest could not amount to an abandonment or relinquishment of the tenancy.”
7. Reliance is also placed on the case reported as Parvinder Singh v. Renu Gautam and others (2004 (4) SC Cases 794), relevant portion whereof is reproduced as under:
“Tenancy is a heritable right unless a legal bar operating against heritability is shown to exist. Thus, the one who inherits tenancy rights also inherits the obligation incurred by the deceased tenant alongwith the rights which he had. It is difficult to accept a proposition that on death of the tenant his heirs only rights and not obligations. If that be so, then the heirs would not be liable to pay any arrears of rent which were not paid by the deceased-tenant.”
8. Further reliance is placed on Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others (PLD 1962 SC 291), Ahmad Din v. Abdullah Bhai and others (PLD 1962 (W.P.) Karachi 663), Nur Shah v. Azmat Ilahi and others (PLD 1966 (W.P.) Peshawar 159), Mian Muhammad Jehangir and 17 others v. Government of the Punjab through Secretary, Housing and Physical Planning, Lahore and 6 others (PLD 1999 Lahore 1), Muhammad Suleman and others v. Muhammad Ahsan and others (2017 MLD 1867), and Shaukat Zaib and 8 others v. Khuram Zaib and 3 others (2018 CLC 970).
9. So far as the findings of learned appellate Court that the lease agreement was not renewed till date are concerned, the same are against the record as no document of cancellation of lease by the competent authority has been brought on record. The petitioners produced a letter dated 13.08.2016, issued by the Deputy Director, L.D.A which shows that the names of legal heirs of deceased Ahmad Din Bhatti were incorporated as lessees of plot No. 57, Old Rifle Range (Now Chauburji Park) Lahore. For ready reference, letter dated 13.08.2016 is reproduced as under:
LAHORE DEVELOPMENT AUTHORITY
U.D WING
ESTATE MANAGEMENT-I DIRECTORATE
NO. DEM-I/LDA/2852
DATED: 13-8-16
To
1. Mr. Salah-ud-Din Bhatti}
2. Mr. Zaheer-ud-Din Bhatti}
3. Mr. Muhammad Ala-ud-Din Bhatti} sons
4. Mr. Noroz-ud-Din Bhatti}
5. Mr. Muhammad Iftikhar-ud-Din Bhatti}
6. Naseem Firdous, Daughter
7. Sarwar Jan wife of Mr. Ahmad Din Bhatti (Late), All residents of Chauburji Park, Multan Road, Lahore
Subject: INCORPORATION OF NAMES OF LEGAL HEIRS IN RECORD OF PLOT NO.57, OLD RIFLE RANGE SCHEME, LAHORE
Reference your application No. 2332025 dated 1.8.2016 received through One Window, LDA on the subject noted above.
In compliance with judgment & decree dated 22.10.2011 passed by Mr. Abdul Jabbar Hanjra, Civil Judge, Lahore, your names have been incorporated in record pertaining to Plot No. 57, Old Rifle Range Scheme, Lahore being legal heirs of Deceased Mr. Ahmad Din Bhatti S/0 Noor-ud-Din, Rajput.
You are further informed that the lease money for the period beyond 1.6.2013 has not been paid by you and that the lease period would expire on 21.7.2040 after which possession of the plot alongwith structure thereon would be resumed.
DEPUTY DIRECTOR (EM-I)
DEM, L.D.A Lahore”
10. The above letter unambiguously shows the continuity of lease till 2040 and also points out the default of payment of lease money but the petitioners placed on record some receipts of payment of the dues to the L.D.A, as such, the findings of the learned Courts below are against the record and patently illegal which deserve reversal.
11. Resultantly, this civil revision is allowed, the judgments and decrees dated 19.10.2011 and 13.10.2015, passed by the learned Courts below, are set aside and the case is remanded to the learned trial Court to decide the case afresh strictly on merits and in accordance with law expeditiously preferably within a period of six months after receipt of certified copy of this order. No order as to costs.
(Y.A.) Revision Petition allowed
0 Comments