2018 M L D 1466
[Balochistan]
Before Muhammad Ejaz Swati, J
GHULAM FAROOQ ---Appellant
Versus
DOLAT KHAN---Respondent
F.A.O. No.20 of 2017, decided on 26th April, 2018. Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13---Ejectment of tenant ---Denial of relationship of landlord and tenant by tenant ---Scope -
--Contention of tenant was that he had purchased the demised premises from the brother of
landlord through an agreement ---Eviction petition was dismissed for lack of relationship of
landlord and tenant between the parties ---Validity ---Tenant had failed to establish the authority
of brother of landlord to enter into an agreement and handover possession of demised premises on the basis thereof ---Tenant just to co ntinue his possession had taken the plea of purchase of
premises in question through brother of landlord ---Landlord was owner of demised premises ---
Ownership might not be a determining factor to establish the relationship of landlord and tenant between the parties ---Relationship of landlord and tenant, however, had been established
between the parties ---Tenant was first to vacate the premises in question and then seek his
remedy if he desired so ---Impugned order could not be sustained which was set aside and
eviction petition was allowed ---Tenant was directed to handover the vacant possession of the
premises in question to the landlord within a period of two months subject to payment of monthly rent ---Appeal was allowed in accordingly.
Shajar Islam v. Muha mmad Siddique and 2 others PLD 2007 SC 45 and Abdul Rasheed
v. Maqbool Ahmed and others 2011 SCMR 320 rel.
Munir Ahmed Langove for Appellant.
Shams -ud-Din Achakzai for Respondent.
Date of hearing: 17th April, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---Th e appellant (applicant) has filed an eviction
application against the respondent, wherein it was averred that his premises built on the property
bearing Khasra No. 1412/246, Mohal Chakkul, Mouza Kasi Tappa Saddar -II, Tehsil City
District, Quetta (premises in question) was rented out to the respondent through verbal
agreement against a monthly rent of Rs.2,000/ -. It was averred that since August 2015, the
respondent has failed to make payment of rent and despite several approaches, he failed to tender
the rent, as such has proved himself as bad paymaster. It was further averred that the house/premises in question is mortgaged with United Bank Limited (UBL) Hali Road, Quetta against loan of Rs.567,659/ -, having a large family, the premises in question is required for bona
fide use and occupation of the appellant.
2. The respondent while filing rejoinder to the application specifically denied the
relationship.
3. Out of pleadings of the parties, six issues were framed. The appellant produced AW -1
Haji Zahoor, A W-2 Munawar Khan and AW -3 Muhammad Munir Halqa Patwari and got
recorded his statement. Whereas, in rebuttal, the respondent produced RW -1 Ghulam Murtaza
and RW -2 Muhammad Azeem and got recorded his statement.
4. The learned Rent Controller/Civil Judge -IX, Quetta (hereinafter the "trial Court") initially
vide order dated 31st May 2016 dismissed the eviction application, which was assailed in F.A.O.
No. 14 of 2016 before this Court, which was allowed and the case was remanded for reappraisal of evidence and r e-writing of order in accordance with law after affording opportunity of hearing
vide order dated 28th April 2017.
5. After remand, the learned trial Court vide order dated 11th October, 2017 (hereinafter the
"impugned order") dismissed the eviction applic ation for lack of relationship of landlord and
tenant between the parties.
6. Learned counsel for the appellant contended that the premises in question was rented out
to the respondent at a monthly rent of Rs.2,000/ -. He not only committed default in payme nt of
rent, but also denied the relationship on frivolous grounds; that the evidence produced by the
appellant established the relationship between the parties; that the respondent had taken the plea of purchase of the premises in question from the brother of the appellant namely Ghulam
Murtaza in consideration of Rs.300,000/ - and he had taken possession from him; that the brother
of the appellant had no concern with the premises in question, therefore, the purported agreement has no legal value.
Learned counsel for the respondent contended that the premises in question was
purchased by the respondent from the brother of the appellant in consideration of Rs.300,000/ -,
who handed over the possession of the same; that the agreement Ex -R/1 produced by the
respondent has further been acknowledged by the brother of the appellant RW -1 Ghulam
Murtaza; that no evidence was produced by the appellant to establish the relationship of landlord and tenant between the parties.
7. Having heard the learned counsel for the parties and perused the record. AW -1 Haji
Zahoor in his statement contended that the premises in question and shop were rented out to the respondent at a monthly rent of Rs.2000/ - and the respondent has failed to tender the rent after
August, 2015. AW -2 Munawar Khan in his affidavit has supported the version of AW -1 and
further contended that the premises in question was also mortgaged with UBL, Quetta only of
Rs.600,000/ - and the premises in question was required for personal bona -fide use and
occupation of the appellant. AW -3 Muhammad Munir produced the revenue record as Ex.P/A -1
with regard to premises in question. In cross -examination, he admitted that Ex.P/A -1 was
mortgaged with UBL. The appellant in his statement reiterated the contention as mentioned i n
the eviction application and contended that despite occupying the premises in question as a
tenant, the respondent has failed to tender the rent since August 2015. In rebuttal, the respondent
produced RW -1 Ghulam Murtaza, the brother of the appellant, who in his affidavit stated that he
sold the premises in question to the respondent in the year 2011 in consideration of Rs.300,000/ -
and at present, the respondent is occupying the same as owner. This witness admitted that the
premises in question was trans ferred on the name of the appellant and he had also taken loan
from the Bank. He produced the agreement Ex -R/1 dated 19th October 2015, wherein it was
mentioned that the premises in question was sold to the respondent on 20th October 2011. The purported ag reement Ex -R/1 was executed on 19th October 2015. RW -2 Muhammad Azeem
also stated that the respondent had purchased the house/premises in question from RW -1 in
consideration of Rs.300,000/ -. The respondent in his affidavit contended that he had purchased
the premises in question from the brother of the appellant namely Ghulam Murtaza in the year
2011 in consideration of Rs.300,000/ - and since then occupying the same as owner.
8. The above evidence produced by the parties reveals that the appellant has produced three
witnesses and filed his affidavit in support of his eviction application. Though, AW -1 and AW -2
stated that the premises shop in question were given on rent to the respondent, but no receipt in this respect has been produced. On the other hand, t he respondent produced two witnesses and
filed his affidavit. The main contention of the respondent was that he had purchased the premises in question from the brother of the appellant in consideration of Rs.300,000/ - and at present
occupying the premises in question as owner. The witness produced by the respondent i.e. RW -1,
the brother of the appellant, in his cross -examination admitted as under:
Whereas the respondent admitted as under:
It appears that with regard to sale of the premises in questio n by RW -1 to the respondent,
no lawful authority/power of attorney was produced by the respondent to establish the validity of the transaction in favour of the respondent with regard to premises in question. RW -1 in cross -
examination admitted that the premises in question is not recorded on his name and the respondent in cross -examination also admitted that he has not seen any ownership document on
the name of RW -1. The respondent in cross -examination also stated that the appellant assured
him that he will transfer the premises in question on his name, but no evidence is available in this
respect. It appears that the respondent just to continue his possession has taken the plea of
purchase of the premises in question through the brother of the appellant, but has failed to
establish the authority of brother of the appellant i.e. RW -1 to enter into an agreement i.e. Ex -R/1
and handover possession on the basis thereof. Even otherwise, the eviction application was filed on 23rd November, 2015 and the purported agreement Ex -R/1 was executed on 19th October,
2015, wherein it was alleged that the premises in question was sold in the year 2011. The
respondent has failed to produce any lawful document to justify the authority of RW -1 to sell the
premises in question to the respondent, therefore, the contention of the respondents with regard
to purchase of the premises in question has not been justified nor established on record.
9. Whereas, the ownership of the appellant in respect of premises in question is concerned,
in this respect, AW -2 produced Ex -A/1 indicating that the appellant is recorded owner of the
premises in question, which fact had also not been disputed by the respondent. It is well settled
that ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties. In the instant case the respondent had taken stance to continue his possession of the premises on a plea not recognized by law, in such frivolous circumstances in absence of any evid ence to the contrary the ownership documents can conveniently be
considered for establishing the relationship of landlord and tenant between the parties. Reference
in this respect is to be made to the case titled Shajar Islam v. Muhammad Siddique and 2 others,
PLD 2007 SC 45, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"This is settled proposition of law that a landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties. However, in the normal circumstances in absence of any evidence to the contrary, the owner of the property by
virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily
created by a written instrument in express terms rather may also be oral and implied. The respondent having raised a specific plea that he was in possession of premises in his own right as J&K refugee has not been able to substantiate his assertion through any evidence, oral or documentary and we have examined the record with the assistance of learned counsel for the parties, have found that two Courts subordinate to the High Court, after
scanning the entire evidence in detail, have determined the status of respondent as tenant of the premises."
10. In the instant, since the respondent has taken the plea of purchase of the premises in
question from the brother of the appellant , therefore, he should first vacate the premises in
question and then seek his remedy, if he desires so. Reference in this respect is to be made to the case titled Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320, wherein the Hon'ble Supreme Court of Pakistan observed as under: -
"We have heard both the learned Advocates Supreme Court. It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails."
11. In the aforesaid circumstances, the trial Court has failed to consider the above aspects of
the matter while considering the evidence on record, therefore, the impugned order cannot be
sustained.
In view of the above, F.A.O. No. 20 of 2017 is allowed, the impugned order dated 11th
October, 2017 passed by the lea rned Rent Controller/Civil Judge -IX, Quetta is set aside, the
eviction application is allowed and the respondent is directed to handover the vacant possession
of the premises in question as mentioned in the eviction application to the appellant within a period of two months subject to payment of monthly rent.
ZC/46/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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