SHAJAR ISLAM vs MUHAMMAD SIDDIQUE and 2 others

' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution has been directed against the judgment dated 18-2-2002 passed by a learned Judge in Chamber of Lahore High Court, Lahore, in a constitution petition.

2. The petitioner sought ejectment of Muhammad Siddique, respondent herein, from the premises in his possession, a residential house situated within the limits of Town Committee, Kotli Loharan, District Sialkot on the ground of default in payment of rent and personal need. The respondent resisted the ejectment petition with denial of the relationship of landlord and tenant and initially the ejectment petition was dismissed but subsequently, on remand of the case by the appellate Court the Rent Controller in the light of evidence produced by the parties in support of their respective stance, having determined the question regarding the existence of relationship of landlord and tenant between the parties, allowed the ejectment petition. The respondent being aggrieved of the ejectment order, preferred an appeal which was dismissed by a learned Additional District Judge vide judgment dated 17-4-1994 whereupon he filed a constitution petition in the High Court and the learned Judge in Chamber in the High Court, seized of the matter, having taken the view that in absence of a written instrument regaling creation of tenancy, the oral evidence may not be sufficient to establish the relationship of landlord and tenant between the parties, allowed the writ petition and set aside the ejectment order.

3. Learned counsel for the petitioner with reference to the oral and documentary evidence available on record, has contended that petitioner having purchased the property from the original allottee, inducted the respondent in the premises as his tenant whereas learned counsel for the respondents, without seriously denying the title of the petitioner, has argued that the ownership of the premises ipso facto is not an evidence of tenancy and notwithstanding the documentary proof of title, the petitioner was obliged to prove his status as landlord of the disputed premises through reliable evidence. The learned counsel asserted that in the light of the position emerging from the facts and circumstances of the present case, no exception can be taken to the judgment of the High Court.

4. The determination of the pivotal question related to the legal status of the parties vis-a-vis the premises and the nature of their relationship inter se, would certainly be a mixed question of law and fact to be decided in the light of the evidence. The title of the petitioner is not as such disputed and in absence of any evidence in rebuttal, there would be a strong presumption of existence of tenancy between the parties.

This is settled proposition of law that a landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties. However, in the normal circumstances in absence of any evidence to the contrary, the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily created by a written instrument in express terms rather may also be oral and implied. The respondent having raised a specific plea that he was in possession of premises in his own right as J&K refugee has not been able to substantiate his assertion through any evidence, oral or documentary and we having examined the record with the assistance of learned counsel for the parties, have found that two Courts subordinate to the High Court, after scanning the entire evidence in detail, have determined the status of respondent as tenant of the premises. The learned counsel for the respondent has not been able to point out any legal or factual infirmity in the concurrent finding on the above question of fact to justify the interference of the High Court in the writ jurisdiction and this is settled law that the High Court in exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous. The scope of the judicial review of the High Court under Article 199 of the Constitution in such cases, is limited to the extent of misreading or non- reading of evidence or if the finding is based on no evidence which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as a substitute of revision or appeal.

5. In sequel to above discussion, we are of the considered view that the interference of the High Court in the concurrent finding of the two Courts regarding the existence of relationship of landlord and tenant between the parties was beyond the scope of its jurisdiction under Article 199 of the Constitution and consequently, we convert this petition into an appeal, set aside the judgment of the High Court and allow the appeal with no order as to costs.