2016 C L C 609
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD IBRAHIM ----Appellant
Versus
NIAZ MUHAMMAD ----Respondent
F.A.O. No.81 of 2012, decided on 16th November, 2015.
West Pakistan Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13, 2(c) & 2(i) ---Ejectment of tenant ---Default in payment of rent ---Personal bona fide
need of landlord ---Denial of relationship of landlord and tenant by tenant ---Contention of tenant
was that he was owner of demised premises and he had filed a suit for specific performance ---
Eviction petition was accepted by Rent Controller ---Validity ---Initial burden was on the landlord
to establish his title as landlord, besides ownership of demised premises ---Landlord was bound to
prove status of tenant as of tenant ---Evidence must exist that demised premises was in fact
owned by the landlord which was rented out to the tenant and landlord received rent of the same -
--Once a tenant was always a tenant but landlord had to prove the status of tenant to seek
evict ion---Nothing was on record to prove that landlord was owner of the demised premises ---
Landlord had failed to prove that tenant had paid rent of the demised premises to him ---
Existence of mutation entries in the record -of-rights in favour of landlord were not sufficient in
eviction proceedings as he had failed to establish relationship of landlord and tenant ---High
Court observed that parties should approach a court of competent jurisdiction to establish title in
their favour to enable them to seek eviction or possession as the case might be ---Impugned
judgment passed by the Rent Controller was set aside and ejectment petition was dismissed ---
Appeal was allowed in circumstances.
Province of Punjab v. Abdul Ghani PLD 1985 SC 1; PLD 1996 Quetta 296 No judg ment
available on referred page; 1999 SCMR 2058 No judgment available on referred page;
Kamaluddin v. Syed Muteebullah 2012 CLC 341; CLC 2012 Balochistan 890 No judgment
found on the referred page and Liaqat v. Allah ud Din 2012 CLC 1104 ref.
Rehmatulla h v Muhammad Ali 1983 SCMR 1064 rel.
Wali Khan Nasir for Appellant.
Behlol Khan Kasi for Respondent.
Date of hearing: 13th November, 2015.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The appellant Muhammad Ibrahim assailed
judgment dated 25th October 2012 of Rent Controller/Civil Judge -II, Quetta whereby the
eviction application filed by the respondent was allowed, and the appellant was directed to hand
over the vacant possession of t he premises in question to the respondent within a period of thirty
days.
2. Brief facts of the Case, as collected from the record, that the respondent claimed himself
to be the recorded owner and landlord of a house (house in question) situated at Haji Noor
Muhammad Dehwar Street, Quetta constructed on the landed property situated in ward No.29
Tappa Urban No.2 Tehsil City District Quetta, total measuring 20395 square feet. The house in
question was asserted to he constructed on the land came in the shar e of Muhammad Amin father
of Niaz Muhammad (present respondent). The application was with the facts that the house in
question was initially rented out nearly thirty years back to Noor Muhammad, father of the
appellant. The appellant stepped in his shoes o n his death, and gained the status of tenant at
monthly rent of Rs.1500/ - (Rupees fifteen hundred only) per month. The eviction was sought on
the ground of default in payment of rent from May 2009, and requirement of house for the
bonafide use of his (land lord's) son.
3. The appellant, whose status was described as tenant, in rejoinder raised several objections
on maintainability of the eviction application, while denied existence of relationship of landlord
and tenant between the parties. The appellant c laimed his status as of owner of the house in
question, asserted to be purchased from one Baz Muhammad son of Abdul Majeed in the year
1994 in sum of Rs.300,000/ - (Rupees three hundred thousand only). An amount of Rs.150,000/ -
(Rupees one hundred fifty tho usand only) was paid at the time of transaction, while the
remaining amount was agreed to be paid at the time of effecting of mutation entries in his
(appellant's) name. Execution of an agreement between the two was also asserted. The title of the
responde nt Niaz Muhammad and his father Muhammad Amin in respect of the house in question
was denied, while the ownership of Baz Muhammad was asserted, who rented out the house in
question initially to his father, and on death tenancy devolved on him (appellant).
4. The trial court framed issues on 03rd December 2011 to the effect:
"1. Whether there exists relationship of landlord and tenant between the applicant and
respondent?
2. Whether applicant is entitled for the relief claimed for?
3. Relief?
The a pplicant (respondent) Niaz Muhammad produced three witnesses, and recorded his own
statement to substantiate his case. In rebuttal the appellant produced six witnesses and also
recorded his own statement. The trial court vide judgment dated 25th October 20 12 determined
existence of the relationship of landlord and tenant between the parties, thus there was an order
for eviction of the appellant from the house in question within a period of thirty (30) days.
5. Learned counsel for the appellant was of the view that the main issue was of existence of
relationship of landlord and tenant between the parties, which was not properly dealt with by the
trial court. It was contended that the fact was ignored that the house in question never owned by
the applicant/ landlord, while the fact of pendency of the suit for specific performance filed by
the appellant was also not duly considered. It was further contended that according to the
revenue record only an area of 700 Sq.Ft entered in the name of the applicant (res pondent)
through inheritance, which negated the plea taken by the applicant. He further stated that the
utility bills showed existence of water and gas connection in the names of the appellant and his
father, an affirmation of his right, but the documents produced were not properly assessed. The
findings were without assigning any reason, thus of no legal effect. The learned counsel placed
reliance on:
PLD 1985 SC 1 Province of Punjab v. Abdul Ghani.
PLD 1996 Quetta 296 No judgment available on referred page.
1999 SCMR 2058 No judgment available on referred page.
CLC 2012 Balochistan 341 Kamaluddin v. Syed Muteebullah
CLC 2012 Balochistan 890 No judgment found on the referred page.
CLC 2012 Balochistan 1104 Liaqat v. Allah ud Din.
The learned counsel requested that the case be remanded for the purpose of recording further
evidence for a valid decision.
6. In reply the learned counsel for the respondent was of the view that the respondent was
sole legal heir of Muhammad Amin, the pr evious owner, thus a valid title devolved on him. It
was asserted that Muhammad Amin, father of the respondent, and Baz Muhammad were step
brothers. While the entries recorded in the revenue record were corrected, but inadvertently
instead of inheritance t he transaction was described as sale. It was contended that Baz
Muhammad sold out all of his property in the area, but neither the appellant nor his father
Muhammad Amin sold out any property in the area, thus this fact established a valid title in their
favour.
7. The facts as collected from the eviction application and its reply that Niaz Muhammad
claimed himself to be the owner and landlord of house in question, which was described through
its boundaries:
"On the eastern side of the house in question is a house, western side is a house, northern
side is house and on the southern side is Haji Noor Muhammad Dehwar Street."
While describing his (respondent's) title, a property consisting of 20395 Sq.Ft was referred while
contending that the house in qu estion was constructed by Muhammad Amin, father of the
respondent (applicant), on an area of the referred land came in his share. The exact measurement
of the house in question neither mentioned in the main eviction application, nor brought on
record throu gh evidence. Nor the share of Muhammad Amin was described in specific terms. In
view thereof the basic requirement was to establish existence of the house in question on referred
land, and status of Muhammad Amin as of shareholder, and the fact that on par tition house in
question devolved in share of Muhammad Amin, who rented it out to the appellant's father.
8. The initial burden was on the applicant/landlord (respondent) to establish his title as of
landlord beside owner ship of the house in question wi thin the meaning of Section 2(c) of the
Balochistan Urban Rent Restriction Ordinance, 1959. He was required to further establish status
of the appellant as of tenant within the meaning of Section 2(i) of Balochistan Urban Rent
Restriction Ordinance, 1959. Thus for the purpose there must be some evidence that the house in
question was in fact owned by the respondent Niaz Muhammad, and rented out either to the
appellant or to his father, and he (respondent) received the rent during all these years. The
witnes ses appeared for the applicant (respondents) Muhammad Ishaq Applicant's Witness No.1
(AW -1), Muhammad Qasim AW -2 though stated about the ownership of the respondent of the
house in question, and the statues of the appellant as tenant therein, but none of t hem witnessed
the occasion when the house in question was rented out either to the appellant or to his father or
any rent was paid by the appellant to the respondent during all these years. Thus their statements
were mere assertions without describing any specific occasion. It was noted that none of the
witnesses were resident of the area; rather they resided in Saranan and Pishin respectively. No
resident of the locality, where the house in question was situated, appeared to affirm existence of
relationshi p of landlord and tenant between the parties.
9. On the other hand the appellant was with the assertion that the house in question was
rented out to his father by one Baz Muhammad, and on death of his (appellant's) father
Muhammad Noor in 1987 the tenancy devolved on him (appellant), and in 1994 he purchased the
house in question from said Baz Muhammad. The utility bills produced and marked as an Ex -R/2
and Ex -R/3, were in the names of Muhammad Ibrahim and Noor Muhammad. Further, to
establish the sa le transaction between him (appellant) and Baz Muhammad, respondent witness
No.5 (R.W -5) Gul Muhammad the Petition Writer, appeared and produced the agreement
executed between Baz Muhammad and Muhammad Ibrahim as EX -R/4. This agreement
described the status of Baz Muhammad as owner of the house. The extract from the Revenue
record produced as Ex -R/5 and Ex -R/6 showed entries in the name of Baz Muhammad as owner.
While RW -6 Naeem Shehzad described himself to witness the sale transaction between the
appellant and said Baz Muhammad.
10. In view of the narrated facts this Baz Muhammad was the most important witness to
unearth the reality, but he never appeared before the court, nor either of the parties made any
effort to compel his attendance. The respondent i n his affidavit mentioned nothing about Baz
Muhammad, but during course of cross -examination only stated that while Baz Muhammad was
step brother of Muhammad Amin, father of the respondent. The appellant though admitted
tenancy of Baz Muhammad, but not abl e to produce any specific evidence to establish that he
entered into some sale transaction with Baz Muhammad, and on basis thereof gained the status of
owner.
11. It is an established principle that once a tenant always a tenant, but in the described
circumstances the initial burden was on the respondent (applicant) to establish his status either as
of owner or of landlord of the house in question, to enable him to seek for eviction of the
appellant. There was no document which could describe his (respond ent's) status as of owner of
the house in question. There was even no specific oral evidence stating payment of rent to the
respondent by the appellant, or any other act on part of the appellant which determined his status
as of tenant of the respondent. I n addition there was nothing on the record to disclose ownership
of Muhammad Amin, father of the respondent, of the questioned house, or any rent was ever
paid to him (Muhammad Amin) by the appellant or his father as his tenant. The only rent receipt
produ ced before the trial court, marked as Ex -A/2, also of less help to the respondent, as none
appeared to affirm the payment in his presence, and issuance of receipt to the appellant by the
respondent. There was also no witness in whose presence the rent was ever demanded by the
respondent (Niaz Muhammad) and denied by the appellant (Muhammad Ibrahim).
12. In view of the described circumstances the existence of some mutation entries in the
Record of Rights in the name of the respondent, was of less benefit t o the respondent in eviction
proceedings, as unable to establish his status as of landlord and status of the appellant as of
tenant in the questioned premises. In the stated circumstances it is always advisable for the
parties to approach a court of compet ent jurisdiction to establish a clear title in their names to
enable them to seek for eviction or possession, as the case may be, of the house in question. The
trial court was not right to place reliance on the mutation entries, in absence of the evidence
which could connect the parties with the house in question, in their status of landlord and tenant.
The Honorable Supreme Court already determined the principle in like case in judgment
recorded in case Rehmatullah v Muhammad Ali, reported in 1983 SCMR 106 4. It was held by
their lordships:
"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 title 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
case it would not be appropriate to evaluate the situation by observing that the decision
on question of title was only t entative. 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 title established before seeking
ejectment. The decision of main issue depends directly on the decision regarding title in
the present case."
In view of the above discussion the appeal is hereby allowed. The judgment of the trial court
dated 25th. October 2012 is hereby set aside. Consequen t thereto the eviction application filed by
the respondent Niaz Muhammad stands dismissed. There shall he no orders as to costs.
ZC/10/Bal. 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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