MUHAMMAD RAMZAN Versus NANOO
MUHAMMAD SALEEM JESSAR, J.---- By this single judgment, I propose to dispose of the above said Constitutional Petitions as the facts and legal points involved in all these petitions are the same, so also the judgment impugned in all the petitions is also common.
2. Brief facts of the case, as disclosed in C.P. No. S-453 of 2012, are that the petitioner purchased some plots from their lawful owners and also purchased some plots in government auction and constructed a shopping center thereon consisting of 35 shops as well as a house on the upper story of the shopping center and rented out the shops to various tenants, including respondent No.1 in these petitions. The petitioner, through his attorney and son, Allah Bux, filed rent applications seeking eviction of the tenants along with an application under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 for directing the opponents / tenants to deposit the rent in court, whereas an application under Order I, Rule 10, C.P.C., was filed by respondent No.2, Mst. Saleem Khatoon, praying therein that she, may be impleaded as a party in the rent cases. The application filed by the petitioner under section 16(1), Sindh Rented Premises Ordinance was allowed; however, application filed by respondent No.2 under Order I, Rule 10, C.P.C., was dismissed. The said Order was challenged by the tenants as well as respondent No.2, Mst. Saleem Khatoon, before this Court by filing Constitutional Petition being C.P. No.S-202 of 2007 which was allowed and the impugned orders passed on application under section 16(1) Sindh Rented Premises Ordinance, so also on application under Order I, Rule 10, C.P.C., were set aside and the matter was remanded to the trial Court to decide the same afresh after framing preliminary issue as to the relationship of landlord and tenants and find out as to who is the landlord of the premises?
3. After remand of the matter, the trial Court again heard rent cases filed by the petitioner against his tenants and allowed the same vide order dated 10.2.2010. This order was challenged by the tenants by filing separate rent appeals which were decided by Additional District Judge, Sanghar vide order dated 11.08.2010 who again remanded the cases to the trial Court on the ground that though the Rent Controller had framed the issue as directed by this Court vide order dated 14.10.2008; however, the same was not decided independently. After the remand, the Rent Controller framed an issue i.e. whether there is relationship of landlord and tenant between the parties and who is the landlord of the premises? After recording evidence of the parties, the Rent Controller again allowed the rent applications vide order dated 14.5.2011. The tenants as well as Mst. Saleem Khatoon filed rent appeals assailing order dated 14.5.2011, which were heard by Additional District Judge, Shandadpur, who, vide his common judgment dated 16.12.2011, allowed the appeals and set aside the order dated 14.05.2011 passed by Rent Controller, with the observation that parties to move the concerned civil court to clear their title over the property in the matter with direction to the tenants to continuously deposit the rent till title is cleared in favour of either party. Through instant Constitutional Petitions the said judgment dated 16.12.2011 has been challenged by petitioner Mohammad Ramzan.
4. Learned counsel for the petitioner submitted that the impugned judgment passed by the Appellate Court suffers from non-reading and misreading of the evidence on record and, therefore, is liable to be set aside. He also submitted that the said judgment is contrary to law as well as record of the case. He submitted that the petitioner produced documentary evidence to prove his ownership and the same was upheld by learned Rent Controller; however, the Appellate Court, relying on oral evidence of the tenants of the petitioner, set aside the order of the Rent Controller. Learned counsel vehemently argued that learned Appellate Court was not justified in ignoring the cogent and unrebutted documentary evidence produced by the petitioner through his attorney and, therefore, prayed for setting aside the impugned Judgment by allowing the present petitions.
5. Conversely, learned counsel for the respondents supported the impugned judgment and prayed that the same may be maintained. Learned counsel submitted, while referring to para 6 of the petition and para 1 of the Rent Application, that the petitioner has completely changed his stance inasmuch as at one place he took the plea that the said shops were rented out to the tenants under oral agreement while later on he stated that shops were rented out under written agreements. He submitted that since no affidavit in rejoinder was filed to the counter affidavit of respondent Rajab, therefore, the averments made in counter affidavit would be deemed to have been accepted as true. He also submitted that since there is dispute as to the relationship of landlord and tenant and as to the real owner of the demised premises, therefore, learned Rent Controller cannot decide the same as the said issue with regard to title of an immovable property is to be decided by the Civil Court only. In support of his submissions, learned counsel relied on the following cases:
2. 2018 SCMR 1385,
3. 2011 CLC 622,
5. PLD 2016 SC 730,
6. 1992 CLC 15,
7. 2011 SCMR 1434,
8. 2010 SCMR 1925,
9. CLC 2016 Note 51,
10. 2015 CLC 310,
11. 2015 CLC 570,
12. 1987 CLC 1134 and
13. 1983 SCMR 1064.
6. In rebuttal, learned counsel for the petitioner submitted that all along the stand of the petitioner has been consistent and that the petitioner has not changed his stand at all. He also opposed the argument advanced by learned counsel for the respondents to the effect that since there is dispute with regard to the title of the petitioner therefore, the Rent Controller was not competent to entertain the rent applications as, according to the learned counsel, there was no actual dispute with regard to the title of the petitioner over the demised premises.
7. I have heard learned counsel for the parties and have also perused the record with their assistance and have also examined the case law cited before me.
8. The moot and the only point to be decided as per direction of this Court contained in the remand order dated 14.08.2008 passed in C.P. No.S-202 of 2007, was; as to whether relationship of landlord and tenants exists between the parties and as to who is the landlord of the premises in question, whether respondent No.2, Mst. Saleem Khatoon, or the petitioner, Mohammad Ramzan? On this point an issue was framed and, after recording evidence, twice learned Rent Controller decided the issue in favour of the petitioner. However, the Appellate Court, vide impugned judgment, set aside Order of the Rent Controller and directed the parties to approach appropriate forum i.e. concerned civil court for deciding the dispute regarding ownership of the demised premises. Now, this Court has to examine as to whether the impugned judgment of the Appellate Court is based on sound reasoning or it suffers from any infirmity or illegality.
9. The term "landlord" has been defined by section 2(f) of the Ordinance of 1979 in the following words:--
"(f) "landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises"
10. Thus, from the above definition of the word "landlord" as used in the Sindh Rented Premises Ordinance, 1979, it is clear that a person who is owner of a property ipso facto becomes a landlord. Therefore, if the petitioner proves that he is the owner of the demised premises then he is the landlord of the property, whereas, if respondent No.2 is able to show that she is the owner of the said property, then she would be the landlady in respect of the demised premises.
11. Now, I will proceed to examine the two conflicting findings of the Courts below i.e. one given by the Rent Controller while passing order dated 14.5.2011 whereby the ejcetment applications filed by the petitioner were allowed and the petitioner was treated as landlord of the demised premises; and the other given by learned Additional District Judge Sanghar vide his Judgment dated 16.12.2011, whereby the appeals filed by the tenants and respondent No.2 herein, were allowed and the Order dated 14.5.2011 passed by the Rent Controller was set aside and the parties were directed to approach the concerned Civil Court to clear their title over the property.
12. The learned Rent Controller, as per directions of the Appellate Court, framed the following issue with regard to relationship of landlord and tenant;
"1. Whether there is relationship of landlord and tenant between parties and who is the landlord of the premises."
13. Learned Rent Controller, after recoding the .evidence and hearing the parties, decided the above issue in the following manner;_
"For what has been discussed above it appears that both the parties are claiming themselves to be landlords of premises in question. In order to reach right conclusion regarding controversy between parties there is question arises [as to] who is the landlord of the premises. In this regard the attorney of the applicant has produced the copies of title documents in the name of the applicant in respect of plot viz. sikini plot area 1064 sq. feet, sikini plot No. 26/IA area 5000 sq. feet, A27/IA area 2000 sq. feet, plot No. 128/A area 2000 sq. feet and such mutation in respect of above mentioned plots is also effected in the record of rights in Form-II, the attorney of the applicant has asserted that over the above mentioned plots his father Muhammad Ramzan had got constructed one shopping centre situated in Jhol town. On the other side, attorney of the intervenor has only produced documents viz. electricity bills, Sui Gas bills which are admittedly not in the name of Intervenor ---- Whatever so, the attorney of the intervenor has not produced any title documents, on the basis of [which] said documents it could be accepted that the intervenor or her father is owner of the premises in question and she is landlord of the same premises in question."
14. On the basis of above finding, learned Rent Controller decided the issue of ownership of demised premises in favour of the petitioner and, thus, gave a finding that the petitioner was the landlord of the demised premises and, therefore, the relationship of landlord and tenant existed between the parties i.e. the petitioner and the tenants. Therefore. he allowed the ejectrnent applications filed by the petitioner.
15. However, the above finding was challenged by the respondents before the Appellate Court and the Appellate Court, while setting aside the above finding of the Rent Controller, discussed the issue of ownership of the demised premises in the following words;_
"The case of the respondent (petitioner herein and applicant before the Rent Controller) is based on some documents i.e. true copies of entries in revenue record and copy of registered sale deed which shows that some plots were purchased by respondent from individuals but in the said documents no where it is mentioned that shops were purchased. It is also necessary to mention here that all the tenants / appellants have not disputed their status as a tenant but they claimed that they are originally tenants of Haji Khuda Bux and after his death they are paying rent regularly and obtained receipts and such original receipts are produced by them in each rent matter and appellant No.2/intervenor through her attorney has also produced some documents showing their ownership over the property."
16. A perusal of the Order dated 14.5.2011 passed by the Rent Controller, which was and impugned before the Appellate Court of Additional District Judge Snaghar, show that the Rent Controller adopted the right course by examining the evidence produced before him by the two contesting parties with regard to ownership of the demised premises. After examining the documents produced by the attorney of the petitioner, the Rent Controller came to the conclusion that the documents produced by the Attorney of the petitioner are title documents and prove beyond any doubt that the petitioner is the owner of the demised premises. In this regard he referred to the various title documents produced by the attorney of the petitioner with specific numbers of the plots as well as the area of the plots. He also observed that such mutation has also been effected in the record of rights in Form-II. Therefore, the Rent Controller reached the conclusion that the petitioner is the owner of the demised premises and, therefore, is landlord of the tenants occupying the same.
17. Before I scrutinize the finding given by the Appellate Court on this issue, I would like to observe that, at page 10 of the impugned judgment and page 47 of the Court's file, the Appellate Court has recorded admission/concession on the part of the learned counsel for respondent No.2 with regard to the ownership of the plots by the petitioner in the following words;_
"According to him (i.e. counsel for respondents) documents produced by the attorney of respondent / applicant shows ownership of the plots but there is no proof regarding construction of shops by the respondent and when the ownership is disputed the rent controller cannot give finding about the title."
18. From the above quotation, it is crystal clear that the counsel for the respondents unequivocally admitted that the documents produced by the attorney of the petitioner clearly show that the petitioner is the owner of the demised premises. However, thereafter, the counsel for the respondents made an unsuccessful attempt to create a twist in the case by stating that there is no proof regarding construction of shops by the petitioner on the said plots. It is very surprising to note that the Appellate Court has paid heed and weight to such absurd submission by the counsel for the respondents as on page 53 of the Court's file, the Appellate Court observed as under;
"The case of respondent is based on some documents i.e. true copies of entries in revenue record and copy of registered sale deed which shows that some plots were purchased by respondent from individuals but in the said documents nowhere it is mentioned that shops were purchased."
19. I am constrained to observe that the above discussion by the Appellate Court was made in a slipshod manner as the Appellate Court referred to the documents produced by the attorney of the petitioner in a very casual manner as if the same carry no weight. In fact, the documents produced by the attorney of the petitioner, as per the wordings of the Appellate Court itself, were "true copies of entries in revenue record and copy of registered sale deed which shows that some plots were purchased by respondent from individuals..." thus, these documents were very important and material and were, in fact, the title documents in respect of the demised premises and this fact was not denied even by the respondents themselves. Once, it was admitted that the plots, on which said shops were constructed, were owned by the petitioner, it ipso facto proves that the building(s) situated thereon were also owned by him. It is not the case of respondent No.2 that though the plots were owned by the petitioner, as is evident from the title documents, but the shops thereon were constructed by father of respondent No.2 and even it does not appeal to the mind of a prudent man that on the plot owned by a particular person, some other person could raise any structure / building and then could claim himself to be the owner of the said building. Such assertion, on the face of it, appears to be totally illogical and absurd.
20. In the present case, a novel proposition was forwarded by the learned counsel for respondent No.2 that though the attorney of the petitioner has produced some documents which show that the petitioner is the owner of the plots; however, there is no proof regarding construction of shops by the petitioner. This is a universally accepted fact that every building on a plot is constructed by the owner of the plot, unless there is evidence to the contrary.
21. The Appellate Court has also made following startling observation at page 13 of the impugned judgment and page 53 of the Court's file;
"It is also necessary to mention here that all the tenants/appellants have not disputed their status as a tenant but they claimed that they are originally tenant of Haji Khuda Bux...."
22. This observation by the Appellate Court is yet another example of deviation from the well-established principle of law that oral evidence cannot displace documentary evidence and that documentary evidence is to be given preference over the oral evidence. In this connection reference could be made to the principle laid down by honourable Supreme Court in the case of Meher Khan and others v. Mst. Basaee and others reported in PLD 2008 Supreme Court 512, by holding as under;_
"The long-standing entries in the Revenue Record specially in the Register of Record of Rights do carry presumption of the truth and cannot be controverted by mere oral evidence unless proved otherwise by sufficient and convincing evidence as laid down in the case of Hakim Khan v. Aurangzeb and another (1979 SCMR 625), Sundar Singh v. Chhajju Khan (AIR 1934 Lahore 309) and the Evacuee Trust Property Board and others v. Haji Ghulam Rasool Khokhar and others (1990 SCMR 725)"
As stated above, even the learned counsel for respondent No.2 conceded that the attorney of the petitioner has produced certain documents which show that the petitioner is the owner of the said plots; however, the Appellate Court is relying on oral evidence of the tenants to dislodge the finding of the Rent Controller which is based on documentary evidence and which was even conceded by learned counsel for respondent No.2. If this practice is allowed to continue then every tenant will conveniently deny relationship of tenant and landlord with his actual landlord and will setup any person as his landlord and thus deny the actual landlord of his right to enjoy his property.
23. There is also no cavil to the proposition that Rent Controller has no jurisdiction to decide question of title of a property and make any declaration with regard to ownership of a property as this is the domain of the Civil Court. However, it is within the domain of the Rent Controller to determine the issue as to whether there exists relationship of landlord and tenant between the parties in a rent case and, in fact, exactly same direction was given by this Court vide order dated 14.08.2008 passed in C.P. No. S-202 of 2007. As stated above, as per section 2(f) of the Ordinance of 1979 "(f) "landlord" means the owner of the premises and also includes a person who is for the time being authorized or entitled to receive rent in respect of such premises. From this definition, it is crystal clear that, in fact, priority has been given to 'owner' of the property and at the secondary stage it has been added, "and includes a person who is for the time being authorized or entitled to receive rent". In this view of the matter if either of the parties succeeds to prove that he/she is the 'owner' of the property in question, then he would be surely termed as "landlord" of the premises. In the instant case the petitioner has produced documentary evidence in support of his title / ownership in respect of the property in question.
24. Another, rather most significant, point in the instant case is that after passing of the aforesaid remand order dated 14.08.2008 by this Court in C.P. No.S-202 of 2007, respondent No.2, Mst. Saleem Khatoon, had filed F.C. Suit No.Ni1/2011 (Re- Mst. Saleem Khatoon v. Mohammad Ramzan and others) wherein the main relief sought by her was as under;_ "a. Declaration to the effect that plaintiff is owner in possession of properties bearing Nos.IA/27-B and IA/128-A and shops constructed thereon known as Kerio Market in Jhol Town, Taluka Sinjhoro Distt: Songhar and entries in the name of defendant No.1 (i.e. petitioner Mohammad Ramzan) in Revenue OR in the Record of Defendant No.5 if any are null and void abinitio effecting the title of plaintiff and need to be cancelled."
25. Learned Senior Civil Judge, Sanghar vide order dated 18th July, 2011 rejected the plaint in the said suit under Order VII, Rule 11, C.P.C. It would be advantageous to reproduce hereunder relevant portions from the said order;_
"Mr. Bhatti for the plaintiff contended that there is dispute over ownership between plaintiff and defendant No.1 over the title hence, the plaintiff filed the present suit for seeking such declaration and cancellation, hence, the suit of the plaintiff is very much maintainable and is not barred by law."
"In absence of title documents the plaintiff has no locus standi to file the present suit, the suit of the plaintiff is barred under section 42 of Specific Relief Act and barred by Articles 91 and 120 of Limitation Act."
26. The said order of the Civil Court was challenged by respondent No.2, Mst. Saleem Khatoon, by filing Ist Civil Appeal No.81 of 2011 which was also dismissed by the Appellate Court vide judgment dated 11.01.2013. Certified copies of the plaint in the aforesaid suit, Order passed by the trial Court, memo. of Appeal as well as order passed by the Appellate Court have been placed on record by learned counsel for the petitioner along with his Statement dated 06.12.2013.
27. From above, it is crystal clear that it has already been decided by a Civil Court of competent jurisdiction that respondent No.2, Mst. Saleem Khatoon, is not the owner of the property in question. It would also be pertinent to point out that not only in these proceedings but also in the plaint of the aforesaid suit filed by respondent No.2, she has clearly admitted that in the revenue record the property in question is entered in the name of petitioner Mohammad Ramzan. It would be advantageous to reproduced hereunder para 6 of the plaint in the aforesaid suit:
"6. That though suit properties are Evacuee properties but defendant No.1 (petitioner Mohammad Ramzan) by misrepresentation and fraud got suit properties entered in his name in Taluka Form No.II vide Serial No.11 in respect of property No. 128/A and Ser No.82 in respect of property No.IA/27-B in the year 1974 in collusion with defendants Nos. 4, 5 and 6."
28. Respondent No.2, Mst. Saleem Khatoon, being aggrieved by the documents of title / ownership produced by the attorney of the petitioner has already approached competent Civil Court by initiating civil proceedings which have already ended against her and in favour of petitioner Mohammad Ramzan, therefore the petitioner cannot be deprived to enjoy the fruits of his property.
29. As regards the contention of the counsel for respondent No.2 that since there is dispute as to the relationship of landlord and tenant and as to the real owner of the demised premises, therefore, learned Rent Controller cannot decide the same as the said issue with regard to title of an immovable property is to be decided by the Civil Court only, suffice it to observe that from a bare perusal of Order dated 14.10.2008 passed in C.P. No. S-202 of 2007 passed by this Court, it transpires that learned Rent Controller was directed by this Court to frame issue with regard to relationship of landlord and tenant between the parties and as to who is the landlord of the premises. In such view of the matter, the learned Rent Controller was bound to follow the orders of this Court. Therefore, the Rent Controller was fully justified in holding an inquiry with regard to the above issues. In fact, the Rent Controller has not decided the title or ownership of the property in question but he has simply declared Petitioner Mohammad Ramzan to be the landlord of the property in question and held that there exists relationship of landlord and tenants between him and the tenants of the property in question on the basis of documents relating to ownership / title of the petitioner already available in the revenue record which were also challenged by respondent No.2 in civil proceedings which ended against her.
30. Learned counsel for the respondents has placed reliance on a number of reported judgments of the superior Courts in support of his submissions / contentions. However, the same do not advance his case as the facts of the cited case are distinguishable from the facts of the instant case, thus they are rotally irrelevant.
31. So far as the law laid down in the case of Mudasir Illahi (supra) is concerned, I am in total agreement with my learned brother Shahnawaz Tariq, J (as his lordship then was) that a petition cannot be treated as a second appeal. However, this Court in exercise of its extra-ordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is not debarred from examining the judgments of the Courts below to reach a conclusion as to whether the same suffer from any infirmity or illegality and whether there is any misreading or non-reading of the evidence produced by the parties before the Courts below. In the present case, in view of above discussion, I am of the view that the order of the Rent Controller was based on proper appreciation of evidence while the impugned judgment delivered by the Appellate Court in the appeals preferred by the respondents, suffers from infirmity and illegality as well as misreading of evidence, therefore, the petitioner was competent to challenge the same before this Court by filing Constitutional Petition.
32. The upshot of the above discussion is that the present petitions are allowed and the impugned judgment dated 16.12.2011 passed by Additional District Judge, Shahdadpur in Rent Appeals Nos.1 to 16 all of 2011, is set aside. Consequently, the Order dated 14.05.2011, passed by learned Rent Controller in the Rent Cases filed by the petitioner, is restored and upheld. Since ample time has lapsed during this litigation, therefore, the tenants / respondents are directed to vacate the demised premises in their respective possession within six months from the date of this judgment and hand over its vacant and peaceful possession to the petitioner / landlord. However, this will be subject to deposit of regular rent in the concerned Court by respondents No.1/tenants, failing which eviction proceedings may be initiated against them without any further notice to them.
Office to place copy of this judgment in all other connected matters.
MH/M-107/Sindh Petition allowed.