1995 PLP 303 (MLD)

3. The only issue for determination was whether relationship of landlord and tenant existed between the parties. The respondent apart from himself, examined Rehmat Saeed (P.W.1‑who is Assistant Ward Incharge, Cantonment Area Office of the EA.C., Residual Property and Allied Matters, Peshawar; Allah Rakha Rafiq (P.W.2) who had, inter alia, deposed that the disputed premises which was a garage formed part of his property which he had mortgaged with one Malik‑ul‑Aziz who had inducted the appellants as his tenants. Said Ahmad, General Attorney of Allah Rakha Rafiq (P.W.3) testified to the execution of the registered sale‑deed in favour of the respondent, which according to him, also covered the disputed property. Fazal Baqi, appellant, appeared in the witness‑box and reiterated his claim which he had earlier set up in the written statement.

4. After scrutinizing the evidence adduced by the parties, the learned Rent Controller found the issue in favour of the respondent. This finding was rendered perhaps on the hypothesis that the title of the respondent was pedestalled on a registered sale‑deed which in turn was based on the PTD while the appellants' contention of being the occupants and having deposited rent in the State Bank of Pakistan in pursuance of the order of the Deputy Settlement Commissioner, Peshawar, was of no consequence. Consequently, the learned Rent Controller vide his order dated 17‑12‑1992 ordered the eviction of the appellants.

5. Feeling aggrieved, the appellants have come up to this Court in appeal.

6. Mr. Muhammad Aman Khan, learned counsel for the appellants, has reiterated the contentions before me which he had taken up in the memorandum of his appeal. In this context, he maintained that there was no evidence to substantiate the plea of the respondent that the appellants had ever remained tenants either under Allah Rakha Rafiq or Malik‑ul‑Aziz mortgagee or for that matter the respondent or that they had paid any rent to any one or more of them. According to him, there was thus not an iota of evidence to establish the existence of relationship of landlord and tenant between the parties. The learned counsel vociferously maintained that the learned Rent Controller had not been able to distinguish between the status of the respondent as an owner and landlord. The ownership and land lordship, according to the learned counsel, are two different aspects of the right over a premises.

7. Mr. Abdul Samad Khan, learned counsel for the respondent, on the other hand, placed implicit reliance on the precedent cases of: (i) Umar Din v. Additional District Judge (1986 SCMR 1580) and (ii) Muhammad Rafique v. Muhammad Hanif and others (1988 SCMR 1222) to argue that the question of title could be determined by the Rent Controller himself rather than leave it to the Civil Court and further that the tenant after surrendering the possession of the property to the landlord should establish his title over the disputed property from the Civil Court.

8. In order to reach a proper conclusion on the main controversy over the existence of relationship of landlord and tenant between the parties, certain glaring facts may appropriately be noticed. The respondent's plea in the petition and then reiterated by him in the witness‑box was that "the appellants had been inducted as tenants in the disputed premises by the previous owner in a portion of the house in question ....for residential purposes, at the rate of Rs.1,000 per month". Allah Rakha Rafiq, the vendor of the property in dispute, on the other hand, deposed in the lower Court that the appellants were inducted as tenants in a portion of his house by Malik‑ul‑Aziz to whom the entire property had been mortgaged. He had expressed his ignorance in his cross‑examination whether or not the appellants had executed any rent deed favour of the mortgagee aforesaid: further that the latter had not informed him about the quantum of rent. He was also constrained to admit that the appellants had never paid him any rent; that he had no documentary evident' to show that he had been paying electricity bills for the premises wherein a separate electric meter had been installed by the appellants. As against this, the appellants had vociferously denied the title of the respondent to the premises on a number of grounds including those as follow: one, that the disputed premises did not form part of the property firstly transferred to Allah Rakha Rafiq and subsequently purchased by the respondents; two, that the appellants were not inducted into the premises either by Allah Rakha Rafiq or by Malik‑ul‑Aziz mortgagee or the respondent‑vendee of another contiguous property; third, that they had never paid any rent to any of the aforesaid persons; four, that in pursuance of the order of the Deputy Settlement Commissioner they had deposited the rent right from 1947 till date and; lastly, that they were depositing electricity charges since long.

9. The crucial question falling for determination is whether in the background of the factual aspect narrated in para.8 ante the learned Rent Controller had recorded the finding of fact after, complete satisfaction and that too as a result of opportunity having been afforded to the parties concerned to satisfy him objectively one way or the other. In this context, two very serious questions which ought to have but had not been addressed by the learned Rent Controller one, whether the disputed premises formed part of premises No.CB‑14/G‑14/96/L‑4; and two, whether the appellants had been inducted in the premises as tenants by the respondent or his predecessor‑in‑interest, namely, Allah Rakha Rafiq or by Malik‑ul‑Aziz on payment of rent at Rs.1,000 per mensum. The facts narrated in para. 8 ante which need not be reiterated over again lead to irresistible conclusion that the learned Rent Controller acting under the Act could not validly decide the issue of relationship of landlord and tenant in favour of the landlord particularly when a serious doubt about the propriety of his claim to the title of the disputed property had emerged. In other words, the material brought on record by the tenant has made the claim of the landlord doubtful and in such a situation, the tenant and not landlord should be left/advised to seek remedy in a Civil Court. These two questions were also considered by the Supreme Court in Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064). The answer to the two crucial questions was furnished in the following paragraph of the case cited above:‑‑ Whether it is the forum of Rent Controller or a M Court exercising its appellate or Constitutional jurisdiction, there is no scope for the argument that even if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt he would still be allowed the benefit of affirmative finding on this issue. There is neither any general principle nor the relevant law governing proceedings either before the Controller as a special tribunal or the appellate Court that when a party is required to establish a fact, positively it shall be deemed to have discharged its burden only by obtaining a tentative opinion and not a finding beyond a reasonable doubt. 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 of 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. The learned Rent Controller adopted the right course. But without disturbing the findings of fact rendered by him, the learned first appellate Court notwithstanding expression of doubt regarding the success of the respondent on the issue of title and relationship of landlord and tenant, allowed the eviction application. This with respect, is not in accord with law as discussed above. The High Court has failed to notice it. The appellate and High Court's judgments, therefore, are liable to be set aside." Again at page 1081 of the said report the result in practical terms was summed up thus:‑‑ "The Rent Controller who was dealing with a petition for ejectment of an occupant of a property by a party claiming to be his landlord, a claim which was based on the plea of ownership, should have proceeded to decide all the issues relevant to the said question, which incidentally may also have included a decision on the question of title. This was done by the Rent Controller. If his appellate authority considered that a deeper and a more detailed examination of the last mentioned question was necessary for settling this matter and also found that the title of the alleged landlord did suffer from some doubt, he should in these circumstances, have dismissed the ejectment petition, leaving the appellant before him, to move the Civil Court for a declaration of his title." It would thus be noticed that the Rent Controller can, in a given case even when the landlord has discharged the initial burden in a case involving title, or the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in Civil Court first and if he succeeds then he can again approach the Rent Controller. Similarly, when the tenant has not succeeded before the Controller to create the required `reasonable' doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same.

10. In this view of the matter, I have no hesitation to hold that the respondent herein, who was asserting the relationship of landlord and tenant between him and the appellants on the basis of his title, to the disputed premises should first get his title established in. the Civil Court. If the suit of the respondent succeeds then he would be at liberty to seek the eviction of the` appellants from the disputed premises.

11. In the light of the above discussion, I would accept this appeal and set aside the order of the learned Rent Controller impugned herein. The respondent would, however, be at liberty to get his title established in the Civil Court. In the peculiar circumstances of this case, the parties are left to bear their own costs. A.A./1643/P Appeal accepted.