PLJ 2024 Quetta 26
Present : SARDAR AHMAD HALEEMI , J.
MUHAMMAD TAHIR etc. --Appellants
versus
RASHEED KHAN and others --Respondents
F.A.O. Nos. 65, 66, 67, 68, 69 of 2021, decided on 1.11.2022.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959) --
----Ss. 13 & 15--Eviction application --Dismissed --Denial of relationship of landlord and tenant --
Red entries in record of rights --No tenancy agreement --Non -producing of any receipt regarding
payment of rent by appellants --Pendency of litigation between parties --Concealment of material -
-Stance of appellant is contrary to record --Burden of proof --It is a settled principle of law that a
person may be an owner, but not a landlord--Mere existence of mutation entries is name of
appellant has no relevancy with eviction proceedings --The findings of trial Court on each issue
are laconic and no illegalities and irregularities have been found in impugned orders and decrees
to warrant interference by High Court in appellate jurisdiction--Appellant has failed to produce
any receipt with regard to payment of rent being paid by respondents to him --There is nothing on
record to show or prove relationship between landlord and tenant and parties --Appeals
dismissed. [Pp. 29 & 31] A, B, C & D
1983 SCMR 1064, 2004 SCMR 126, 2001 SCMR 1434 &
2001 YLR 2915 ref.
Mr. Gulzar Khan Kakar , Advocate for Appellant.
None appeared for Respondents.
Date of hearing: 3.10.2022.
JUDGMENT
Through this judgment, I propose to decide FAO Nos.65, 66, 67, 68, and 69 of 2021, as a
common question of facts and law is involved in all these appeals, arising out of orders dated 30.10.2021 (hereinafter “the impugned Orders”) passed by learned Civil Judge, Sariab/Rent Controller, Quetta, (hereinafter “the trial Court”) whereby the eviction applications filed by the appellants have been dismissed.
2. The brief facts of the instant appeals are that the appellant filed eviction applications against
the respondents before the trial Court with the averments that he entered into a sale agreement
with the legal heirs of late Muhammad Irsahd i.e. Qamar Shahzad. Mst. Khalida Parveen, Mst.
Kosar Irsahd, Mst. Asima Irshad Ali and Babar Irsahd dated 30.12.2016 in respect of property
bearing Khasra No. 281 -24 measuring 0 Rod 24½ pole (approximately 6640 sqft) situated at
Mahal and Mouza Khushkaba Takhtani, Tappa Kachi Baig- 1. Tehsil City District Quetta
(consisting upon five units/houses) and got mutated the same in his name vide Mutation No.
4598 dated 03.03.2017. It was avered in the eviction application that since the respondent (s)
was/were in occupation of the above unit/house as tenant(s) of previous owner i.e. late
Muhammad Irshad at a monthly rent of Rs. 7500/ - as such they were apprised about the change
of ownership. According to the appellant, the rent of house/unit was mutually enhanced from Rs. 7500/ - to Rs. 10000/ - w.e.f. January 2017 and the respondents were also asked to execute fresh
rent agreements. As per the appellant, the respondents neither executed any rent agreement nor paid the agreed enhanced monthly rent of the house/ unit in question w.e.f. February 2017 thus,
defaulted, and as such, aforesaid eviction applications were filed.
3. The respondents contested the eviction applications on legal as well as factual grounds by
filing rejoinder to the eviction application with the contention that they denied the relationship of landlord and tenant and claimed that the late Muhammad Irshad sold out the property in dispute
to one Nadeem Sohail (respondent in FAO No. 68/2021) who has sold the same to one Abdul
Ghani (respondent in FAO No. 67/2021) who has further sold it out to one doctor. The mutation entry effected in favour of the appellant was also disputed by the respondents on the ground that there were red entries in the record of rights in respect of the property in question and succession application of the legal heirs were also pending before the Court of Civil Judge -III, Quetta.
4. Out of divergent pleadings of the parties, the trial Court framed the following issues:
1. Whether there exists any relationship of landlord and tenant between the applicant and
respondent?
2. Whether the applicant is entitled to the relief claimed for?
3. Relief?
5. In the first place, the trial Court after framing issues, heard the arguments of the parties on
issues and dismissed the eviction applications vide order dated 16th February 2018, however,
this Court vide order dated 27th August 2019 remanded the cases to the Rent Controller with the
direction to decide the fate of dispute between the parties after recording evidence.
6. After remand of the matter by this Court, the trial Court directed the parties to adduce their respective evidence. On conclusion of the evidence, and after hearing the parties, the trial Court dismissed the eviction applications vide orders and decree dated 30th October 2021 (hereinafter
“the impugned order and decree”). Hence, these first appeals against the orders.
7. Learned counsel for the appellant contended that the appellant has proved the relationship of landlord and tenant, which was not properly appreciated by the trial Court/Rent Controller; the respondents were tenant of previous owners i.e. late Irshad Ahmed; the property in question devolved in the name of legal heirs of deceased’s Irshad Ahmed and the tenancy rights also
devolved; the appellant purchased the property in question from the legal heirs of deceased’s
Irshad Ahmed, and entered in his name as owner in the revenue record; the evidence produced by the appellant proved the relationship of landlord and tenant. The findings of the Rent Controller/trial Court were not based on the wrong conclusion; therefore, the impugned judgments are not maintainable. Learned counsel for the appellant placed reliance in the case of
Muhammad Ibrahim v. Niaz Muhammad 2016 CLC 609, Abdul Qayyum and 8 others v. Abdul
Ghaffar and 2 others 2015 MLD 605 and Fazal Raziq v. Haji Sher Zaman and 2 others 2016
MLD 121.
8. Learned counsel for the respondent controverted the contention put forth by the learned
counsel for the appellant and stated that the appellant tried to establish his relationship on the basis of title/revenue record; civil litigation is pending adjudication before the Civil Court between the previous owner and respondent Sohail Ahmed; the appellant concealed material facts; the previous owners have also failed to substantiate the relationship of landlord and tenant; the Rent Controller/trial Court rightly concluded that the appellant has failed to prove the relationship; finally prayed for dismissal of appeals.
9. After hearing the arguments of the learned counsel of the parties perused the record with their
able assistance.
10. In the first place, the burden was on the appellant/landlord to establish his relationship of the
landlord, besides ownership of the property in question. Perusal of the statement of AW -1
reflects that the property in question was rented out by his deceased father to the respondent and one of the respondents Sohail Ahmed being Manager collected the rents of the property in
question, however, during cross -examination he admitted that he could not produce any receipt
whatsoever regarding the payment of rent. AW -1 could not specify the date, time, and place on
which he received the rent for the property in question. Admittedly, there is no tenancy
agreement between the parties or with previous owners.
11. It is a settled principle of law that a person may be an owner, but not a landlord. The pivotal
question for determination before the Rent Controller/trial Court is that of the relationship
between landlord and tenant. Reliance in this regard is placed in the case of Rehmatullah v. Ali
Muhammad 1983 SCMR 1064. It was held as under:
“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 cases, it would not be appropriate to evaluate the situation by observing that the decision
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 title established before seeking
ejectment. The decision of main issue depends directly on the decision regarding title in
the present case.”
12. Similar view has been taken in the case of Anwar Khan v. Abdul Manaf 2004 SCMR 126.
The relevant para is reproduced as under: -
“It is worth mentioning here that at this juncture that the question of title has no
relevancy in the proceedings in rent case as the pivotal point needs determination would be the relationship of landlord and tenant which would be the only determining factor because a tenant has absolutely no legal right to raise any objection regarding the partition of property or the manner in which it was so made as it would have no substantial effect on the factum of his tenancy and his status would remain as tenant”.
13. Moreover, the record depicts that the father of AW -1 died in the year 2012 and the legal heirs
of the deceased’s Irshad Ahmed/previous owner Mst. Khalida Parveen and Qamar Shazad filed a
complaint under Sections 3, 4, 5, and 7 of the illegal Dispossession Act, 2005 against Dawood Khan, Naseem Kakar, Majeed, Sher Khan, and Wahid Bakhsh against illegal occupants/tenants in the property in question. Consequently, they got possession from their illegal occupants/tenants vide order dated 20.05.2013 (Ex.P/5- P). The stance of the appellant is contrary
to the record that the respondents are in occupation of the property in question as a tenant since the time of the late Irshad Ahmed i- e father of the previous owner. Further, one of the previous
owners appeared as AW- 1 deposed in his statement before the Rent Controller/trial Court that his
father rented out the property in question to the respondents and collected the monthly rent through his Manager Sohail Ahmed, whereas contrary to the record. The record is silent that who inducted the respondents as a tenant in the property in question after obtaining possession of the property in question from the previous tenant in the year 2013.
14. That ownership alone has no nexus with regard to the relationship of landlord and tenant. On the basis of ownership documents, the jurisdiction of the Rent Controller/trial Court cannot be invoked. Reliance is placed in the case of Afzal Ahmed Qureshi v. Mursaleen 2001 SCMR 1434, wherein it is held as under:
“In absence of relationship of landlord and tenant between the parties the question of
disputed title or ownership of A the property in dispute is to be determined by a competent Civil Court as such controversies do not fall within the jurisdictional domain of the learned Rent Controller. It is wellsettled by now that “the issue whether relationship, of landlord and tenant exists between the parties is one of jurisdiction and
should be determined first, in case its answer be in negative the Court loses seision over
lis and must stay his hands forthwith”. PLD 1961 Lah. 601 (DB). There is no cavil to the proposition that nonestablishment of relationship of landlady and tenant as envisaged by the Ordinance will not attract the provisions of the Ordinance. In this regard we are fortified by the dictum laid down in 1971 SCMR 82. We are conscious of the fact that "ownership has nothing to do with the position of landlord and payment of rent by tenant
and receipt thereof by landlord is sufficient to establish relationship of landlord and
tenant between the parties”.
15. The statement of the appellant reveals that he even did not know the names of the tenants and that nothing in the record to establish the relationship of landlord and tenant between the parties,
in this connection, the mere existence of mutation entries is the name of the appellant has no
relevancy with the eviction proceedings. The findings of the Rent Controller/trial Court on each
issue are laconic and no illegalities and irregularities have been found in the impugned orders
and decrees to warrant interference by this Court in appellate jurisdiction.
16. Furthermore, the record reveals that the appellant has failed to produce any receipt with
regard to the payment of rent being paid by the respondents to him. In this regard, the burden of proof is on the shoulders of the appellant to have established either through documentary or unimpeachable oral evidence that the respondents were/are his tenants. In the instant case, there is nothing on record to show or prove the relationship between the landlord and tenant and the
parties. Reliance is placed on the case of Mashkoor Ahmed alias Mashkoorussain through Legal
Heirs and others v. Abdul Gi -lafoor and 4 others , 2001 YLR 2915, wherein it was held as under:
“In the above perspective, under the law, a person, who asserts himself as the landlord of
the building and claims that a particular person is tenant under him has to establish either through documentary or unimpeachable oral evidence that the particular person is his tenant. In the instant case admittedly, there is no documentary evidence on record to prove the relationship of landlord and tenant and the parties are in consensus on the said position and under the circumstances, both the parties are falling back upon the oral evidence produced by them.”
The case laws relied upon and referred to by the learned counsel for the appellant are distinguishable from the facts and circumstances of the instant matters.
For the above reasons, the appeals are dismissed.
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