PLJ 2010 SC 910
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Muhammad Akhtar Shabbir &
Syed Sakhi Hussain Bukhari, JJ.
AHMAD ALI alias ALI AHMAD--Appellant
versus
NASAR-UD-DIN and another--Respondents
Civil Appeal No. 917 of 2005 out of CP
117-Q of 2004, decided on 16.4.2009.
(On appeal from the judgment of the High
Court of Balochistan, Quetta
----S. 13--Ejectment application--Rent
controller allowed the ejectment petition--High Court on appeal dismissed the
ejectment petition--Appeal to Supreme Court by leave of the Court--Relationship
of landlord and tenant--Held: Though the Rent Controller is not competent to
determine the question of title of the 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--In case the tenant could not
establish his possession over the property in dispute under the sale, he is not
entitled to protect the same and the relationship of landlord and tenant would
continue to exit. [P. 914] A
----S. 13--Ejectment
application--Relationship of landlord and tenant existed between the
parties--Application of landlord for ejectment of tenant having been based on
default, and the required relationship of landlord and tenant having been
denied by the tenant, he was liable to be ejected straightaway when the
required relationship has been proved in affirmative. [Pp. 914 & 915] B
----S. 13--Ejectment application--In
absence of any evidence to the contrary, owner of property by virtue of his
title would be presumed to be landlord and person in possession of premises
would be considered as tenant under the law--Appeal allowed. [P. 915] C
PLD 1990 SC 382, ref.
Mr. Kamran Murtaza, ASC for Appellant.
Mr. H. Shakil Ahmad, ASC and Mr. Muhammad
Ayaz Khan Swati, ASC for Respondent No. 1.
Respondent No. 2
Ex-parte.
Date of hearing: 16.4.2009.
Order
Muhammad Akhtar Shabbir, J.--This appeal
by leave of the Court is directed against the judgment of the High Court of
Balochistan, Quetta
2.
The facts giving rise to the present appeal are to the effect that Ahmad
Ali/appellant had filed an ejectment application under Section 13 of the
Balochistan Urban Rent Restriction Ordinance, 1959 against the respondents,
stating therein that he being owner of Shop No. A situated at Bus Stand Sirki
Road, Quetta, has rented out the same to Respondent No. 1 in the year 1983 on
monthly rent of Rs. 3000/-; that in the year 1998, he being paralyzed, was not
in a position to collect the rent from the tenant/Respondent No. 1 and the
respondent also did not contact him for payment of the rent. On recovery from
ailment in 2001, he approached Respondent No. 1, asked him to make payment of
the outstanding rent and also informed him that the shop was required by him
for his personal and bona fide need; that when the appellant visited the shop
in question, he found Respondent No. 2 in possession thereof, who told him that
he had been inducted into the shop as a tenant by Respondent No. 1. The
appellant sought eviction on three grounds i.e. default in payment of rent
w.e.f. August/September 1999, the premises being required by him for his
personal bona fide need and subletting of the shop by Respondent No. 1 to
Respondent No 2. The ejectment petition has been resisted by Respondent No. 1
only, who filed rejoinder raising some preliminary objections. He denied the
relationship of tenancy, claiming to be the owner of the shop as purchaser from
the appellant, with a specific stand that there was a business partnership
between the parties and on its termination, the appellant while paying his
share in business had also sold out the shop to Respondent No. 1, who rented
out the same to Respondent No. 2. From the factual controversies appearing from
the pleadings of the parties, the learned Rent Controller framed various issues
and subsequently on 31.8.2002 framed the following additional issue:
"Whether any
relationship of landlord and tenant between the parties exists?"
The Rent Controller, after recording,
appreciating the evidence of the parties, pro and contra, allowed the ejectment
petition, vide his order dated 4.12.2002. The said order had been assailed by
Respondent No. 1 before the High Court of Balochistan, Quetta
3.
Learned counsel for the appellant contended that the shop in dispute had
been allotted/transferred in his favour by the Quetta Development Authority,
vide allotment letter issued in February, 1982; that the cost of the
property/shop valuing Rs.64,792.55 had been deposited by the appellant through
Respondent No. 1, vide deposit receipt dated 16.5.1982; that the Respondent No.
1 had not controverted the document of title in favour of the appellant; that
the appellant had produced three witnesses i.e. Abdul Fateh AW-1, Haji Muhammad
Rahim AW-2 and Riaz Mansoor Shah, Advocate AW-4, in support of his assertions
raised in the ejectment petition.
4.
While, on the other hand, the learned counsel for Respondent No. 1
vehemently opposed the arguments of the learned counsel for the appellant,
contending that there was no relationship of landlord and tenant between the
parties; that the respondent has purchased the shop from the appellant and has
deposited the cost thereof with the Quetta Development Authority, who in that
regard referred to the deposit slip, claiming that the amount was deposited by
him and the receipt thereof has also been produced by him before the Rent
Controller; that there is no written lease/tenancy agreement between the
parties and that the appellant has failed to establish on record the
relationship of landlord and tenant; that the respondent has deposited the
excise tax of the property in dispute from his own pocket; that the appellant
has made no effort to receive the rent of the property in dispute for five
year; that when there is a dispute with regard to the title of the property,
the Rent Controller cannot adjudicate upon the same who can only make a
tentative assessment of the documents on the basis of the evidence and that the
party claiming title/ownership of the property, has to approach the Civil
Court. In support of the proposition, he placed reliance on the case of
Rehmatullah Vs. Ali Muhammad and another (1983 SCMR
1064).
5.
We have heard the arguments of the learned counsel for the parties,
examined the record with their assistance. The appellant has placed on record a
letter issued by Quetta Development Authority, according sanction for the sale
of the shop in favour of the appellant for a cost of Rs.64,792.55
and the said amount has been deposited by him on 16.5.1982. In the record of
the Quetta Development Authority, the said shop is entered in the name of the
appellant. The Respondent No. 1 has not made any effort to get it transferred
in his favour from the Quetta Development Authority. The respondent claimed
that he has purchased the shop from the appellant at the time when the business
partnership between them had been terminated. In this regard, the respondent had
not filed any civil suit against the appellant before any Court of competent
jurisdiction for transfer of the shop in his favour. The respondent has placed
reliance of two deposit slips of the Property Tax i.e. Ex. R-2 and R-3 which
are not a conclusive proof of the ownership or title of the property and only
relate to the payment of tax, which no doubt can be deposited by the occupant
of the shop. The respondent has further placed reliance on a document Exh R-4,
vide which the partnership business between the parties has been terminated but
this document also gives no title to the respondent. This stand of the tenant
had been denied by the landlord, so much so, this
document was not confronted to the appellant while he appeared in the witness
box before the Rent Controller as his own witness. This original document
Exh.R/4 has neither been placed on record nor got exhibited in the evidence and
it was returned to the respondent by the Rent Controller, as such, it has not
been proved according to law. The respondent himself admitted that there was no
writing regarding termination of business between the parties. The
evidence/documents, not made part of the record, cannot be considered by the
Courts. The respondent has also produced oral evidence but failed to controvert
the document of title produced by the appellant with regard to his ownership of
the premises in dispute.
6.
Muhammad Saleem, a Superintendent of the Quetta Development Authority
while appearing as AW-3, brought the record regarding the property in dispute
and verified Exh.A/1, the approval of the sale of the property in favour of the
appellant. The said witness had also appeared as RW3 and admitted the entry of
the shop in dispute in the record of the Quetta Development Authority in favour
of the appellant.
7.
The appellant produced Abdul Fateh AW-1 and Haji Muhammad Raheem AW2,
who categorically deposed in line with each other and stated that the
Respondent No. 1 was a tenant of the shop in dispute under the appellant and
due to paralysis attack on the appellant, they have
been receiving the rent from Respondent No. 1. Affidavits of both the AW-s were
also placed on the record and thereafter they were cross-examined by the
respondent's side but their veracity could not be shattered.
8.
Riaz Mansoor Shah, Advocate also appeared as AW-4, who had issued legal
notice to the tenant for eviction of the premises in dispute. The Respondent
No. 1 denied the tenancy under the appellant, claiming to be the owner of the
property as a purchaser from the appellant but failed to prove the same.
Admittedly, the record shows that the title/ownership over the premises in
dispute vested with the appellant, which had not been
rebutted by the respondent and it is well-settled that once a tenant is always
a tenant. The respondent has neither made any effort before the Quetta
Development Authority for transfer of the shop in his favour nor resorted to
any remedy before the Court of competent jurisdiction against the appellant and
this fact of the case cannot easily be ignored. Though the Rent Controller is
not competent to determine the question of title of the property assuming the
role of a Civil Court
9.
AW-1 Abdul Fateh and AW-2 Haji Muhammad Saleem deposed before the Rent
Controller to the effect that the respondent was tenant under the landlord/appellant
and they have been approaching him for collection of monthly rent when the
landlord was sick and could not walk. Riaz Mansoor Shah, Advocate, AW-4 also
appeared and proved the Legal Notice Ex. A/2, issued to the tenant under the
instructions of the landlord. The respondent had not claimed any animosity
against these witnesses. The landlord has clearly refuted the assertion of the
respondent with regard to the joint business with him and also sale of the shop
in his favour. The possession of the shop in question since the year 1982 is
admitted by the respondent. He has not been able to prove his ownership and
title of the shop by producing some convincing evidence to bring the ownership
of the ejectment petitioner under shadow of doubt. In such circumstances, the
tenant can not legitimately resist maintainability of ejectment petition.
Reliance in this context can be placed on the case of Haji Juma Khan Vs. Haji Zarin Khan (PLD 1999 SC 1101). The
tenant/respondent denied ownership of property on the basis of his share in
business and purchase of the shop. For about three (3) decades having been able
to keep possession on a claim which had been denied by the landlord/appellant,
the respondent was at liberty to file litigation for transfer of the shop in
his favour, but he had not filed any such lis against the landlord to establish
his claim. So on the basis of his un-established claim
he is not entitled to protect his possession at the cost of the appellant as
laid down in case of Iqbal & 6 others Vs. Mst. Rabia Bibi and another (PLD
1991 SC 242).
10.
In the case in hand, we from perusal of record, keeping in view all
facts and statements of the witnesses, find that relationship of landlord and
tenant existed between the parties. Application of landlord for ejectment of
tenant having been based on
default, and the required relationship of landlord and tenant having been
denied by the tenant, he was liable to be ejected straightaway when the
required relationship has been proved in affirmative. Reliance in this respect
can be placed on Rab Nawaz Vs. Haji Muhammad Iqbal
(2003 SCMR 1476), Abdul Hamid and 3 others vs. Syed Abdul Qadir & others
(PLD 2001 SC 49).
In the impugned judgment the High Court
has observed that the tenancy had not been created by the written instrument.
This Court in case of Shajar Islam Vs. Muhammad
Siddique and 2 others (PLD 2007 SC 45) has laid down that tenancy would not be
necessarily created by written instrument in express terms, rather might also
be oral and implied. In normal circumstances, in absence of any evidence to the
contrary, owner of property by virtue of his title would be presumed to be
landlord and person in possession of premises would be considered as tenant
under the law. The evidence produced by the appellant/landlord had not been
disproved by the respondent. The facts of the case of Rehmatullah Vs. Ali
Muhammad and another (1983 SCMR 1064), are not attracted to the present case
because in that case the ejectment application of the respondent therein was
dismissed by the Rent Controller as he failed to establish his title and
ownership over the property, while in the instant case the ejectment petition
filed by the appellant/landlord had been allowed vide order dated 4.12.2002 and
the title of the respondent/tenant in respect of the property in dispute is
under doubt.
11.
Non-payment of the rent of the property in dispute by the tenant is
admitted, as such, he would be inferred as defaulter, so liable to be ejected.
12.
For the foregoing reasons, we allow this appeal. Resultantly, the
impugned judgment of the High Court being not sustainable is set aside, order
of ejectment of the respondent/tenant passed by the Rent Controller dated
04.12.2002 is restored. The respondents are directed to hand over the vacant
possession of the premises to the appellant within sixty days after passing of
this Judgment. No order as to cost. The observation of this Court/determination
of the title/ownership of the landlord, is tentative
in nature and it would not prejudice the merits of the case, if the tenant
approaches the civil Court of competent jurisdiction for determination of his
title over the property.
(M.S.A.) Appeal
allowed.
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