2020 Y L R 1764
[Balochistan]
Before Muhammad Ejaz Swati, J
FAYYAZ AHMED and 2 others ---Appellants
Versus
MUHAMMAD AZAM ---Respondent
F.A.O. No. 27 of 2019, decided on 6th November, 2019.
Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13---Ejectment of tenant ---Default in payment of rent ---Denial of relationship of
landlord and tenant ---Oral tenancy --- Scope --- Tenants challenged the order of Rent
Controller whereby they were directed to vacate the rented premises ---Contention of tenants
were that relationship of landlord and tenant did not exist between the parties and that the
landlord had not produced any tenancy agreement or rent receipt ---Validity ---Ownership of
the house in question was proved by landlord through production of mutation entries and utility bills ---Tenants had failed to produce any title document to support their possession
over the premises in question, therefore, Rent Controller was competent to determine the relationship of landlord and tenant ---Landlord had specifically pleaded that written
agreement was not executed due to close relationship with the tenants ---Owner of the
property, in absence of any evidence to the contrary, was presumed to be of the landlord and the person in possession of the premises wa s considered as tenant under the law ---Tenancy
was not necessarily required to be created by a written instrument in express terms rather it could also be oral and implied--- Conduct of the tenants was sufficient to hold them
contumacious defaulters of rent ---Eviction of tenants by the Rent Controller was amply
justified and warranted no interference by the High Court ---Appeal filed by tenants was
dismissed.
Ahmed Ali alias Ali Ahmed v. Nasar ud -Din and others PLD 2009 SC 453 and
Makhan Bano v. Haji Abdul Ghani, PLD 1984 SC 17 rel.
Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 fol.
Mehmood Ali Batti for Appellants.
Abdul Hameed Khan for Respondent.
ORDER
MUHAMMAD EJAZ SWATI, J. ---The respondent/applicant filed an eviction
application against the appellants (respondents) in respect of house, constructed upon two
pieces of land bearing Khasra Nos.2109, 2107, 2000, measuring 0 rod 4 poles, mutation No.154 and Khasra Nos.2127, 2111, 2110, 2107, 2000, mutation No.156, measuring 0 rod 3 pole (total 0 rod 7 pole), situated at Mohal Karez Inayat Khan, Mouza Kasi, Tappa Kasi, Tehsil and District, Quetta (Muncipal No.10- 9/4267 Arbab Ghulam Ali Road, Kocha Haji
Abdul Aziz, Killi Debba, Quetta ). It was the case of the respondent that the half portion of
the above mentioned house, constructed upon two rooms and a bath room etc. after erecting intervening wall (premises in question) was rented out to the father of appellants Nos. 1 and 2 (respon dents) namely Sher Muhammad and due to close relationship, no rent deed was
arrived at between the parties. The premises in question was required on the ground of personal, bona fide use and occupation of the respondent (applicant) in good faith and defaul t
in payment of rent from January 2014.
2. The appellants (respondents) while filing rejoinder to the eviction application
specifically denied the relationship of landlord and tenant between the parties.
3. Out of pleadings of the parties, following issues were framed:
1. Whether there exists any relationship of landlord and tenant between the parties?
2. Whether respondents Nos.1 and 2 are bad paymaster?
3. Whether the demised house is required to applicant for his personal bona fide use?
4. Whether the ap plicant is entitled to the relief claimed for?
5. Relief?
4. The respondent (applicant) produced eight witnesses and recorded his statement. In
rebuttal appellants (respondents) produced five witnesses and thereafter appellant No.1 namely Fayyaz Ahmed bein g attorney recorded his statement on behalf of the appellants
(respondents).
5. The learned Rent Controller/ Civil Judge -V, Quetta ('the trial Court') vide judgment
and decree dated 15th June 2019 ('the impugned judgment and decree') allowed the eviction application and directed the appellants (respondents) to handover the vacant possession of
the demised house to the extent of half portion to the respondent (applicant) within a period of 60 days of passing the order and further to pay monthly rent of demis ed house to the
respondent (applicant) at the rate of Rs.3500/ -, from January 2014 till handing over the
vacant possession.
6. The learned counsel for the appellants contended that the appellants by way of filing
rejoinder to the eviction application speci fically denied the relationship of landlord and
tenant between the parties; that the learned trial Court has failed to decide the issue No.1 with regard to relationship and the findings rendered in this respect reflect misreading and non- reading of evidenc e; that no agreement with regard to tenancy between the parties has
been produced, nor payment of rent had been established through any cogent evidence; that an affidavit of previous owner namely Sultan Muhammad was also filed by the respondent to substant iate the issue of relationship of landlord and tenant, but he was not produced, thus,
an adverse inference could be drawn against the respondent in view of Article 129(g) of the
Qanun- e-Shahadat Order, 1984; that a Civil Suit in respect of title of the pre mises in question
is pending against the respondent and in absence of establishment of relationship of landlord and tenant, the learned Rent Controller had no jurisdiction to adjudicate the matter and it was the case to be decided by the Civil Court, there fore, the impugned judgment could not be
sustained and liable to be set aside.
7. On behalf of the respondent Messrs Abdul Hameed Khan and Manzoor Ahmed Khan,
Advocates filed their power, which is taken on record.
8. Learned counsel for the respondent Mr. Abdul Hameed Khan, Advocate contended
that the appellants are close relatives of the respondent, therefore, no tenancy agreement arrived at between the parties and there was verbal tenancy between the parties; that respondent through documentary and oral e vidence besides relationship of landlord and
tenant also proved the remaining issues, therefore, findings of the learned Rent Controller is based on proper appreciation of the evidence; that the mutation entries with regard to premises in question also est ablishes the relationship of landlord and tenant between the
parties; that mere denial of relationship by the appellants without producing any cogent evidence cannot be taken into consideration unless they could justify their possession over the property i n question.
9. Having heard the learned counsel for the parties and perused the record. The
appellants from the inception of the proceedings specifically denied the relationship of landlord and tenant between the parties regarding which issue No.1 was fram ed. The
respondent in support of its case produced eight witnesses including documentary evidence.
AW-4 Hameedullah Patwari, produced mutation entries related to the premises in question as
Ex.A/4 and 4- B. The documents related to connection of Gas was pro duced through AW -5
Muhammad Ishaq as Ex.A/5 while AW -6 Muhammad Yasir, Junior Clerk WASA, produced
documents / bills of water charges and AW -7 produced legal notice issued to the appellants
as Ex.A/7 -A.
10. The appellants / respondents produced documentary evidence with regard to Gas
meter connection as R/2 -A, which indicates that it was on the name of appellant Faiz Ahmed
son of Sher Muhammad with different address, which has no nexus with the premises in question. The appellants also denied the relationsh ip of landlord and tenant on the basis of
Civil Suit filed by Muhammad Siddique against the respondent and produced the same as Ex.R/4 -A and an application under Order XXXIX Rules 1 and 2, C.P.C. as Ex.R/4 -B. The
above documentary evidence merely indicates that Muhammad Siddique has challenged the
title of the respondent with regard to premises in question and filed a suit for cancellation of mutation entries. During arguments it was admitted by both the learned counsel for the parties that the suit filed b y Muhammad Siddique was dismissed by the trial Court and an
appeal is pending before the Additional District Judge -III, Quetta. Be that as it may, the fate
of the above appeal will take its legal course between the concerned parties and the same aspect can not enhance the contention of the appellants to deny the relationship of landlord
and tenant between the parties.
11. The perusal of evidence produced by the parties indicate that the respondent is
admittedly owner of the house in question and in this respect mutation entries had been
produced, which aspect of the matter has neither been rebutted by the appellants nor any sufficient evidence has been produced to justify their possession in any lawful capacity. The documents related to utility bills produced by the respondent / landlord might not be
conclusive evidence to establish the relationship of landlord and tenant, but at the same time,
the utility bills are not totally irrelevant, as the said connection required proof of ownership /
allotment letter / Fard and No Objection Certificate (NOC) from the owner if the land or
premises is leased or rented. The combined effect of the above evidence particularly mutation entries of the premises in question produced by the respondent establish the relationship o f the landlord and tenant between the parties. The contention of the learned
counsel for the appellant that in case of complicated question of title, the learned Rent Controller lacks jurisdiction under the Rent Restriction Ordinance, 1959, is not tenable,
because if the tenant fails to produce any title document to support his possession over the premises in question, the Rent Controller, or the Appellate Court are competent to determine the relationship of landlord and tenant between the parties. Referenc e in this respect is to be
made to the case of Ahmed Ali alias Ali Ahmed v. Nasar ud -Din and others (PLD 2009 SC
453), wherein, at page No.458, it was observed as under:
"Though the Rent Controller is not competent to determine the question of title of th e
property assuming the role of a civil Court, but if the tenant fails to produce the documentary evidence to support his title over the premises in dispute, the Rent Controller can determine the relationship of landlord and tenant between the parties."
12. The other contention of the learned counsel for the appellant that in absence of
tenancy agreement or rent receipt, the mere mutation entry / ownership is not determining factor to establish the relationship of the landlord and tenant between the parties , is also not
relevant, as the respondent in the eviction application had specifically pleaded that due to close relationship with appellants tenancy was oral and in such circumstances by virtue of ownership documents, issue No.1 had been proved. Reference in this respect is placed on
case titled Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45, wherein, it was 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 having 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."
13. In the instant case, the appellants without having any title documents in their favour,
had challenged the title of the respondent and such conduct of the appellants is sufficient to
hold the appellants as contumacious defaulter of rent and on such contumacious denial, their
eviction would appears to be amply justif ied and warrants no interference by this Court in
appellate jurisdiction.
Reference in this respect is to be placed on the case titled Makhan Bano v. Haji Abdul
Ghani PLD 1984 SC 17, wherein, the Hon'ble Supreme Court observed as under:
"The futility of his efforts to take up a dispute over title of the property, abandoning it at a crucial stage and withholding rent on that account for over 10 months showed an element of contumacy and persistency in the misconduct."
In view of the above FAO No.27 of 2019 is dismissed. The parties are left to bear
their own cost, however, three months time is granted to the appellants to handover the vacant possession of the premises in question and to pay monthly rent to the respondent, as directed by the learned Rent Con troller. In case of default, the appellants are liable to be
evicted forthwith.
SA/162/Bal. Appeal dismissed.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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