DILBAR KHAN Versus SAIFULLAH

1. The respondent filed an application for ejectment against the appellant on the ground that he has defaulted in payment of rent from September 1979. The appellant filed written statement stating that under an agreement dated'28‑8 1979 the respondent has sold the property in his favour in the sum of Rs. 7,000 and that his name has been mutated in the record of Excise and Taxation Department. The learned Controller came to the conclusion that the relationship of landlord and tenant exists between the parties and granted the ejectment application. Mr. Feroz the learned counsel for the appellant has contended that the appellant wanted to examine witnesses to prove the agreement for sale of the property but he was not allowed by the Controller and no opportunity was given to establish this fact. It may be mentioned that the respondent had denied the execution of this agreement. The learned Controller while rejecting this request has observed that this application was filed four months after closing the side and therefore it was not proper to allow the appellant to re‑open the case and examine these witnesses. I do not find any illegality in this order as the appellant was duty bound to establish that there exists an agreement between the parties for sale of the property. The burden was entirely upon the appellant to establish this fact. He had examined himself and no other person. The learned Controller has noted the fact that when copy of this agreement was filed with the written statement it did not bear the signature of the appellant but when the original was produced it bore the signature of the appellant which means that this signature was made much after the proceeding had started in this case. It is pertinent to A note that the agreement without the signature of the appellant was filed in Excise and Taxation Department where his name was mutated by an ex parte order without any notice to the respondent, but in appeal this order was set aside. These facts cast doubt on the genuineness of the agreement. The appellant should have produced witnesses, attesting witnesses and the Magistrate who had attested the signature of the respondent but none of them were produced, therefore, heavy burden cast upon the appellant was not discharged.

2. The learned counsel for the appellant contended that in view of 1983 S C M R 1064, 1')87 C L C 148 and 1986 C L C 2862 as the appellant had pleaded that relationship of landlord and tenant did not exist between the parties the learned Controller should have either stayed the proceeding or dismissed the application and allowed the controversy to be decided by the competent Civil Court. The principle deduced from these authorities is not that the moment tenant denies the relationship of landlord and tenant and claims ownership, the Controller should stay the proceeding or dismiss it. It is the duty of the tenant to prima facie establish with strong evidence that the relationship of landlord and tenant does not exist. Unless a strong evidence, is brought on record the Controller may proceed with the case to decide the relationship of landlord and tenant. In the present case as discussed above the agreement has not been proved. The respondent had issued a notice to the appellant before filing the suit which was served on him but no reply was given by the appellant. The manoeuvres made by the appellant in the Excise and Taxation Department to obtain an ex parte order of mutation before filing the written statement before the Controller, goes a long way to point out that the plea is not prima facie established. In these circumstances I do not find any ground for interference with the order of the learned Controller. The appeal is dismissed with costs. Two months' time is allowed to vacate the premises.

3. D/D‑73/K Appeal dismissed.