2012 C L C 341
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
KAMALUDDIN and 2 others ----Appellants
Versus
Syed MUTEEBULLAH ----Respondent
First Appeal from Order No.80 of 2009, decided on 28th November, 2011.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)
---S. 2(c) ---Term "Landlord", meaning and scope ---"Landlord" in S.2(c) of West Pakistan
Urban Rent Restriction Ordinance, 1959, was used in a very wide sense ---Person may be
owner of the property, but he may not have attained title of landlo rd, or a person may be
landlord, but may not be owner of the property, subject to the condition that he is entitled to
receive the rent ---Ownership is to be seeti t' o that extent only.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 2(c)(i), 13 & 15 ---Application for ejectment of tenant ---Relationship of
landlord and tenant ---Tenants denied existence of relationship of landlord and tenant and
claimed to be lawful owners of the premises in question ---There being complete denial of
existence of tenancy on the part of the tenants, before going into merits of the case, first
point, which was needed to be decided was the existence of relationship of landlord and
tenant between the parties ---Rent Controller, without first deciding said issue, allowed
ejectment application and directed tenants to hand over vacant possession of the premises
to the landlord ---No specific evidence was available before the Rent Controller to establish
the fact that premises in question was ever rented out to tenants in terms as asserted by
landlord in the ejectment application ---Serious doubt existed in respect of ownership of the
landlord in respect of property in question in view of revenue entries ---Rent Controller
should have disallowed the ejectment appli cation and ordered the parties to get established
their title from a court of competent jurisdiction ---Findings arrived at by the Rent
Controller, were without basis and being erroneous, were set aside ---Impugned judgment of
Rent Controller was set aside a nd ejectment application, was dismissed.
Pervaiz v. Amir Aziz 2005 CLC 594, and Mst. Wakeelan Begum v, Additional District
Judge, Gujranwala 2006 CLC 1866 ref.
Rehmatullah v. Ali Muhammad 1983 SCMR 1064 rel.
Ms. Syeda Tehmeena for Appellants.
Abdul Nasir Kakar for Respondent.
Date of hearing: 25th May, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J --- The appellants feeling aggrieved of the judgment
dated 17th August, 2009 of Rent Controller/Senior Civil Judge, Pishin, whereby the
application fi led by the respondent Syed Muteebullah, seeking eviction of them from the
disputed premises, was allowed, and they were directed to hand hover vacant possession of
the premises to the respondent, with further direction for payment of due rent amounting to
Rs.9900 (Rupees nine thousand and nine hundi'ed) to the respondent, preferred instant
appeal. The appellants assailed the order on the grounds that the Rent Controller made .a
serious error while accepting the document pertaining to the Revenue Record, whi ch was
admittedly in the name of several persons, and witness Qanoongo has clearly admitted that
Tatima ( J ) was made. Further, despite the fact that the respondent completely failed to
establish existence of the relationship of landlord and tenant betwee n the parties, as no
document was produced in • respect of the 'same. Furthermore, the Rent Controller failed to
consider the suggestions made to the witness Ahmed Jan that some document of tenancy was
executed between the parties, which was never produced by the respondent during course of
trial. And if the respondent was in possession of any. document relating to the tenancy, and it
was not produced before the court an adverse inference was required to be drawn against the
respondent/ landlord, which has not-been done by the Rent Controller, thus made an error.
Further, there are instances of misappreciation of material, and evidence on record, while the
documents placed on record were not considered in their true perspective. It is further their
contentio n that as the relationship of landlord and tenant was not established, therefore, there
was no occasion for payment of rent or eviction on ground of personal bona fide use, and
subletting. It has been prayed that the judgment dated 17th August, 2009 be set aside, and
eviction application filed by respondent be dismissed.
2. Learned counsel for the parties were heard and record was perused. The learned counsel
for the appellants strongly contested the findings of the trial court termed them being
erroneous , and contrary to the material on record. It was his argument that there is no
evidence about existence of tenancy between the parties, as no agreement, and no rent receipt
was produced, nor any witness appeared, in whose presence the rent due was paid. Th us, in
absence of the evidence it has been wrongly concluded by the trial court that relationship. of
landlord, and tenant exists between the parties, and on denial the appellants are liable for
eviction. In reply the learned counsel for the respondent ass erted that the respondent has
proved his ownership in respect of the property.in question, as no ownership exists in favour
of appellant No.1, this fact also establish the ownership of the respondent. It is further his
contention that in the given circumst ances there was no need of documentary evidence; rather
specific oral evidence was enough to prove the case of the landlord. He relied on decisions
made in cases titled as Pervaiz v. Amir Aziz, reported in 2005 CLC page -594, and Mst.
Wakeelan Begum v. Addi tional District Judge, Gujranwala reported in 2006 CLC (Lahore)
page -1866.
3. From perusal of the record it is apparent that respondent Syed Muteebullah filed an
application under section 13 of the Balochistan Urban Rent Restriction Ordinance, A959,
(Ord inance -VI of 1959), thereby claiming himself to be the owner and landlord of property
bearing Khewat/Khatooni No.17/25, situated at Mohal Mouza Karez Bazar Kohna, Tappa
Saddar Surkhab, Tehsil and District Pishin, consisting of. an area of 3000 square feet. It was
his case that the property in question was rented out to appellants Nos.1 and 2 on 1st October,
2006, after raising construction of two rooms, at the rate of Rs.1100 per month. It has been
claimed that the appellants Nos.! and 2 are ,bad paymaster, as they have failed to pay rent
since 1st October, 2006. Further, the appellants Nos.l and 2 without prior permission of the
landlord constructed a shop on property in question: Furthermore, the two rooms, and
courtyard of the disputed premises were suble tted to appellant No.3 on higher rent by
appellants Nos.1 and 2. In addition the tenants/ appellants Nos.1 and 2 demolished the wall at
western side of the courtyard without permission. The eviction was also sought on ground of
personal bona fide use, and occupation of premises in question, as the respondent/landlord
wants to start business of fruit and vegetable in it. In reply the appellants denied existence of
relationship of landlord and tenant between the parties, rather appellants Nos.1 and 2
adversel y claimed to be. lawful owners of the premises in question which is in their
possession as such. Though they admitted letting out two rooms to appellant No.3, but with
contention that ownership vests with' them. The appellants further denied the personal b ona
fide use of respondent/landlord. They prayed for dismissal of the application being without
merits. Seven issues were framed on 18th March, 2008 by the trial court, while the
respondent/landlord produced four witnesses to establish his case, and got re corded his
statement through attorney Hazrat Shah. While in rebuttal the appellants produced three
witnesses, and present appellant No.1 Kamaluddin recorded statement of his own, and also
for appellants Nos.2 and 3. The trial court after completion of evid ence, recorded findings
through judgment dated 17th August, 2009, which is presently impugned before this court.
4. As there was complete denial of existence of any tenancy on the part of the appellants,
therefore, before going into merits of the case, t he first point, which was needed to be decided
is the existence of relationship .of landlord and tenant between the parties. It is to be noted
that the trial court has not framed Issues Nos.l and 2 properly, rather only one issue to the
effect:
Whether a ny relationship of landlord and tenant exists between the applicant Syed
Muteebullah and respondents Nos.1 and 2 Kamaluddin and Mustafa in respect of property in
question?
was required to be framed. Rather, the trial court while discussing legal objectio n "A", which
pertains to the matter of existence of relationship of landlord and tenant between the parties
arrived to the conclusion that the respondent is the owner, and landlord, while the appellants
Nos.l and 2 are his tenants in premises in question. While deciding the issue the trial court
mostly relied on the facts appeared in cross -examination made to respondents' witness No.2
(RW -2), which is an error. Rather the initial burden was on the applicant/present respondent
to establish his title of landl ord in respect of property in question through positive evidence.
Whereafter, grounds urged for eviction would be considered. Though both the parties are
claiming their right as owner.of property in question, but while dealing With the matter under
Rent La ws, the status of the person seeking eviction is to be .established as landlord
irrespective of his title of being owner, as the matter rest between landlord and tenant.
Section 2(c) of Ordinance -VI of 1959 the term "landlord" is defined as:
"2(c) "Landl ord" means any person for the time being entitled to receive rent in respect of
any building or rented land whether on his own account or on behalf or for the benefit of any
other person, or as a trustee, guardian, receiver, executor or administrator for a ny other
person, and includes a tenant, who sublets any building or rented land in the manner
hereinafter authorized and every person from time -to time deriving title under a landlord."
6. The term landlord used in the provision is in a very wide sense. Therefore, in view of the
definition a person may be owner of the property, but he may not have attained title of
landlord, or a person may be a landlord, but may not be owner of the property subject to the
condition that he is entitled to receive the rent . The ownership is to be seen to this extent
only. In present case both the parties are claiming ownership in respect of the premises in
question, and both of them produced certain mutation entries from the Revenue Record to
establish their claim. But, in addition the respondent has to establish his title of being
landlord, and that he being owner rented out ,the premises to the respondents Nos. 1 and
2/present appellants Nos.1 and 2 on 1st October, 2006 at monthly rent of Rs.1100. If he
succeeded to establi sh his title of being landlord, the question of default, alteration without
permission, subletting, and personal bona fide use will be matter of consideration. The
respondent mostly stressed on Revenue Record produced by AW -3 .and AW -4. But two
private wit nesses were also produced. Syed Nazar Ali, who appeared as applicant's witness
No.1 (AW -1) though stated that applicant Muteebullah is owner of the property in question,
which was rented out to respondents Nos. 1 and 2/present appellants Nos. 1 and 2. He
showed himself to be present at the time when plot in question was rented out to the
petitioner No.1 Kamaluddin. It was further his statement that he never saw any writing in
respect of existence of tenancy between the parties. While the second witness AW -2 Syed
Abdul Hameed in his affidavit affirmed the contention of the respondent/ landlord taken in
main application, but during course of cross -examination he stated that his nephew Syed
Muteebullah, present respondent, told him that he has rented out the pr operty in question to
respondent No.l. The statement of this witness based on information provided to him by the
respondent, thus amounts to hearsay. The remaining two witnesses are representatives of
Revenue Department who produced extract from the Revenu e Record as Exh. A/ 1 and
Exh.A/2. The only purpose for producing these witnesses are to establish title of 'ownership
in favour of Syed Muteebullah/present respondent. The respondent while appearing before
the court ,through attorney though filed his affi davit in confirmation of the contents of the
application filed by him, but during course of cross -examination he stated that no document
was executed between him and appellants Nos.l and 2 in respect of inception of the tenancy.
In rebuttal the appellants Nos. l and 2 also tried to establish their title of being owner, they
produced three witnesses. They also relied on mutation entry existed in name of respondent
No.1 in Revenue Record. But it is to be noted that it was suggested to respondents' witness
No.3 Syed Abdul Musavir by the applicant/landlord that some agreement of tenancy executed
between the parties, and Kamaluddin appellant No.1 has illegally occupied the premises.
Both the suggestions are contrary to the plea taken by the respondent/landlord in his eviction
application. From the perusal of this set of evidence it is apparent that there is no specific
evidence before the court to establish the fact that the premises in question was ever rented
out to appellants Nos. 1 and 2 in terms, as asserted by respondent in his eviction application.
Rather keeping in view the revenue entries there is serious doubt in respect of ownership of
the respondent in respect of B property in question. In the circumstances it was advisable for
the Rent Controller to di sallow the application, and advise the parties to get established their
title from a court of competent jurisdiction. In such like situation a complete guideline is
provided by honourable Supreme Court while deciding a petition titled as Rehmatullah v. All
Muhammad, reported in 1983 SCMR -1064. It has been held therein:
"It has already been held that when the decision of the issue _regarding relationship of
landlord and tenant depends solely and not only incidentally on the question of the
ownership and ti tle to the property and it will not be possible for the Controller to decide the
case without deciding. the basic question involved regarding title, then in such like cases it
would not be appropriate to evaluate the situation by observing that the decisio n on question
of title was only tentative. It has also'been observed that the requirement of the relevant law
contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the
question of relationship of landlord and tenant against the tenant when the landlord has not
been able to establish his position as landlord beyond reasonable doubt. In that situation the
proper course for the Rent Controller would be to decide the issue against the landlord and
advise him to first get his titl e established before seeking ejectment. The decision of maul
issue depends directly on the decision regarding title in the present case."
It is further observed by their lordships that: ---
"It may, however, usefully added that any Tribunal or statutory Authority exercising quasi -
judicial functions when required to determine any question, which, under the law, it has the
authority to determine should decide all the questions arising before it and thereby spare the
parties from the ordeal of rushing from one forum to another. The findings recorded by such
Tribunals on the questions adjudicated by it, subject to correction or alteration by the
Appellate or Constitutional forum are final and on the general principle of res judicata are
not open to be re -agitated before a Civil Court. Thus, the findings recorded by the Tribunal of
limited jurisdiction like the Rent Controller would also be final, if they are given on the
merits of the plea raised before it and will operate as res Judicata. ' However, in the ev ent
where the Rent Controller feels that a complicated question requiring a protective inquiry
would be necessary for deciding a particular question such as for instance whether a party
claiming to be the owner of a property and is therefore the landlord o f the person occupying
it, cannot in view of the demands of the law to decide questions of the existence of the
relationship of landlord and tenant expeditiously by undertaken by him; he can observe that
such a question be decided by a Court of general jur isdiction, namely the ordinary civil Court
and this finding should be specifically recorded by him in his Order. "
7. Keeping in view the above discussion, and verdict of honourable Supreme Court in
absence of any specific evidence from the side of the r espondent/landlord to establish his title
being of owner as well as of landlord of premises in question, therefore, the findings arrived
by the trial court are without basis, and erroneous, thus liable to be set aside. The parties are
at liberty to establi sh their title through court of competent jurisdiction.
In view of the above discussion the appeal is hereby allowed. impugned judgment 'dated 17th
August, 2009 of Rent Controller/ Senior Civil Judge, Pishin is set aside. The eviction
application filed b y the respondent Syed Muteebullah shall stand dismissed.
No orders as to costs.
H.B.T./158/Q Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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