AHMAD ALI alias ALI AHMAD vs NASAR-UD-DIN and another

ORDER

' MUHAMMAD AKHTAR SHABBIR, J.---This appeal by leave of the Court is directed against the judgment of the High Court of Balochistan, Quetta dated 11-8-2004 passed in FAO No,134/2002.

2. The facts giving rise to the present appeal are to the effect that Ahmad Ali/appellant had filed an ejectment application under section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959 against the respondents, stating therein that he being owner of shop No,4 situated at Bus Stand Sirki Road, Quetta, has rented out the same to respondent No.1 in the year 1983 on monthly rent of Rs,3000 that in the year 1998, he being paralyzed, was not in a position to collect the rent from the tenant/respondent No.1 and, the respondent also did not contact him for payment of the rent. On recovery from ailment in 2001, he approached respondent No,1, asked him to make payment of the outstanding rent and also informed him that the shop was required by him for his personal and bona fide need; that when the appellant visited the shop in question, he found respondent No.2 in possession thereof, who told him that he had been inducted into the shop as a tenant by respondent No.1. The appellant sought eviction on three grounds i,e, default in payment of rent with effect from August/September 1999, the premises being required by him for his personal bona fide need and subletting of the shop by respondent No,1 to respondent No.2. The ejectment petition has been resisted by respondent No,1 only, who filed rejoinder raising some preliminary objections. He denied the relationship of tenancy, claiming to be the owner of the shop as purchaser from the appellant, with a specific stand that there was a business partnership between the parties and on its termination, the appellant while paying his share in business had also sold out the shop to respondent No.1, who rented out the same to respondent No.2. From the factual controversies appearing from the pleadings of the parties the learned Rent Controller framed various issues and subsequently on 31-8-2002 framed the following additional issue:-- "Whether any relationship of landlord and tenant between the parties exists?"

' The Rent Controller, after recording, appreciating the evidence of the parties, pro and contra, allowed the ejectment petition, vide his order dated 4-12-2002. The said order had been assailed by respondent No,1 before the High Court of Balochistan, Quetta through FAO No,134/2002. Which was accepted, vide the impugned judgment, as a result whereof the ejectment petition filed by the appellant has been dismissed. Hence this appeal by leave of the Court.

3. Learned counsel for the appellant contended that the shop in dispute had been allotted/transferred in his favour by the Quetta Development Authority, vide allotment letter issued in February, 1982; that the cost of the property/shop valuing Rs,64,792,55 had been deposited by the appellant through respondent No,1, vide.Deposit receipt dated 16-5-1982; that the respondent No,1, vide deposit, receipt dated 16-5-1982; that the respondent No,1 had not controverted the document of title in favour of the appellant; that the appellant had produced three witnesses i,e, Abdul Fateh AW1, Haji Muhammad Rahim AW2 and Riaz Mansoor, Shah, Advocate AW4, in support of his assertions raised in the ejectment petition.

4. While, on the other hand, the learned counsel for respondent No,1 vehemently opposed the arguments of the learned counsel for the appellant, contending that there was no relationship of landlord and tenant between the parties; that the respondent has purchased the shop from the appellant and has deposited the cost thereof with the Quetta Development Authority, who in the regard referred to the deposit slip, claiming that the amount was deposited by him and the receipt thereof has also been produced by him before the Rent Controller; that there is no written lease/tenancy agreement between the parties and that the appellant has failed to establish on record the relationship of landlord and tenant; that the respondent has deposited the excise tax of the property in dispute from his own pocket; that the appellant has made no effort to receive the rent of the property in dispute for five year; that when there is a dispute with regard to the title of the property, the Rent Controller cannot adjudicate upon the same who can only make a tentative assessm ent of the documents on the basis of the evidence and that the party claiming title/ownership of the property, has to approach the civil Court. In support of the proposition, he placed reliance on the case of Rehmatullah v. Ali Muhammad and another (1983 SCM R 1064).

5. We have heard the arguments of the learned counsel for the parties, examined the record with their assistance. The appellant has placed on record a letter issued by Quetta Development Authority, according sanction for the sale of the shop in favour of the appellant for a cost of Rs,64,792.55 and the said amount has been deposited by him on 16-5-1982. In the record of the Quetta Development Authority, the said shop is entered in the name of the appellant. The respondent No,1 has not made any effort to get it transferred in his favour from the Quetta Development Authority. The respondent claimed that he has purchased the shop from the appellant at the time when the business partnership between them had been terminated. In this regard, the respondent had not filed any civil suit against the appellant before any Court of competent jurisdiction for transfer of the shop in his favour. The respondent has placed reliance on two deposit slips of the property tax i,e, Ex. R-2 and R-3 which are not a conclusive proof of the ownership or title of the property and only relate to the payment of tax, which no doubt can be deposited by the occupant of the shop. The respondent has further placed reliance on a document Exh.R-4, vide which the partnership business between the parties has been terminated but this document also gives no title to the respondent. This stand of the tenant had been denied by the landlord, so much so, this document was not confronted to the appellant while he appeared in the witness-box before the Rent Controller as his own witness. This original document Exh. R/4 has neither been placed on record nor got exhibited in the evidence and it was returned to the respondent by the Rent Controller, as such, it has not been proved according to law. The respondent himself admitted that there was no writing regarding termination of business between the parties. The evidence/documents, not made part of the record, cannot be considered by the Courts. The respondent has also produced oral evidence but failed to controvert the document of title produced by the appellant with regard to his ownership of the premises in dispute.

6. Muhammad Saleem, a Superintended of the Quetta Development Authority while appearing as A.W.3, brought the record regarding the property in dispute and verified Exh.A/1, the approval of the sale of the property in favour of the appellant. The said witness had also appeared as R.W.3 and admitted the entry of the shop in dispute in the record of the Quetta Development Authority in favour of the appellant.

7. The appellant produced Abdul Fateh AW1 and Haji Muhammad Raheem AW2, who categorically deposed in line with each other and stated that the respondent No,1 was a tenant of the shop in dispute under the appellant and due to paralysis attack on the appellant, they have been receiving the rent from respondent No,

1. Affidavits of both the AWs were also placed on the record and thereafter they were cross-examined by the respondent's side but their veracity could not be shattered.

8. Riaz Mansoor Shah, Advocate also appeared as AW4, who had issued legal notice to the tenant for eviction of the premises in dispute. The respondent No.1 denied the tenancy under the appellant, claiming to be the owner of the property as a purchaser from the appellant but failed to prove the same. Accordingly, the record shows that the title/ownership over the premises in dispute vested with the appellant, which had not been rebutted by the respondent and it is well-settled that once a tenant is always a tenant. The respondent has neither made any effort before the Quetta Development Authority for transfer of the shop in his favour nor resorted to any remedy before the Court of competent jurisdiction against the appellant and this fact of the case cannot easily be ignored. Though the Rent Controller is not competent to determine the question of title of the property assuming the role of a civil Court, but if the tenant fails to produce the documentary evidence to support his title over the premises in dispute the Rent Controller can determine the relationship of landlord and tenant between the parties. In case the tenant could not establish his possession over the property in dispute under the sale, he is not entitled to protect the same and the relationship of landlord and tenant would continue to exist as laid down in Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 SC 382).

9. AW1 Abdul Fateh and AW2 Haji Muhammad Saleem deposed before the Rent Controller to the effect that the respondent was tenant under the landlord/ appellant and they have been approaching him for collection of monthly rent when the landlord was sick and could not walk. Riaz Mansoor Shah, Advocate, AW4 also appeared and proved the legal Notice Exh.A/2, issued to the tenant under the instructions of the landlord. The respondent had not claimed any animosity against these witnesses. The landlord has clearly refuted the assertion of the respondent with regard to the joint business with him and also sale of the shop in his favour. The possession of the shop in question since the year 1982 is admitted by the respondent. He has not been able to prove his ownership and title of the shop by producing some convincing evidence to bring the ownership of the ejectment petitioner under shadow of doubt. In such circumstances, the tenant cannot legitimately resist maintainability of ejectment petition. Reliance in this context can be placed on the case of Haji Juma Khan v. Haji Zarin Khan (PLD 1999 SC 1101). The tenant/respondent denied ownership of property on the basis of his share in business and purchase of the shop. For about three (3) decades having been able to keep possession on a claim which had been denied by the landlord/appellant, the respondent was at liberty to file litigation for transfer of the shop in his favour, but he had not filed any such lis against the landlord to establish his claim. So on the basis of his un-established claim he is not entitled to protect this possession at the cost of the appellant as laid down in case of Iqbal & 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242).

10. In the case in hand, we from perusal of record, keeping in view all facts and statements of the witnesses, find that relationship of landlord and tenant existed between the parties. Application of landlord for ejectment of tenant having been based on default, and the required relationship of landlord and tenant having been denied by the tenant, he was liable to be ejected straightaway when the required relationship has been proved in affirmative. Reliance in this respect can be placed on Rab Nawaz v. Haji Muhammad Iqbal (2003 SCM R 1476), Abdul Hamid and 3 others v.

Syed Abdul Qadir & others (PLD 2001 SC 49).

' In the impugned judgment the High Court has observed that the tenancy had not been created by the written instrument. This Court in case of Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45) has laid down that tenancy would not be necessarily created by written instrument in express terms, rather might also be oral and implied. In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law.

The evidence produced by the appellant/landlord had not been disproved by the respondent. The facts of the case of Rehmatullah v. Ali Muhammad and another (1983 SCM R 1064), are not attracted to the present case because in that case the ejectment application of the respondent therein was dismissed by the Rent Controller as he failed to establish his title and ownership over the property, while in the instant case the ejectment petition filed by the appellant/landlord had been allowed vide order dated 4-12-2002 and the title of the respondent/tenant of the property in dispute is under doubt.

11. Non-payment of the rent of the property in dispute by the tenant is admitted, as such, he would be inferred as defaulter, so liable to be ejected.

12. For the foregoing reasons, we allow this appeal. Resultantly, the impugned judgment of the High Court being not sustainable is set aside, order of ejectment of the respondent/tenant passed by the Rent Controller dated 4-12-2002 is restored. The respondent are directed to hand over the vacant possession of the premises to the appellant within sixty days after passing of this judgment.

No order as to cost. The observation of this Court/determination of the title/ownership of the landlord, is tentative in nature and it would not prejudice the merits of the case, if the tenant approaches the Civil Court of competent jurisdiction for determination of his title over the property.