1990 PLP 1529 (CLC)

Dilawar Hussain for Appellant. Maqsoom Hussain Rizvi for Respondent. The appellant Bahadur Ali is in occupation of a House No.LCA‑5‑8/12, Alama lqbal Colony, Mahmoodabad, Karachi. The respondent Raja Fazal Hussain filed Rent Case No.2092/79, before VIth Controller, Karachi on 24‑3 1979 for eviction of the appellant on the ground that the house belonged to him and he had let it out to the appellant at the monthly rent of Rs.30 which he had refused to pay from June, 1976 onwards. The appellant resisted the eviction application, contending that he had purchased the house from one Muhammad Din in March, 1965 and he was occupying it under his own title of ownership. The respondent filed his own affidavit and that of one Muhammad Yousuf. He also examined KMC Surveyor Syed Moinuddin. The appellant filed his own affidavit. Both tie parties also filed some documents. The learned Controller held, by his order, dated 8‑5‑1984, that the appellant was occupying the house as tenant of the respondent and that he had made default in payment of rent from June, 1976, and directed that he should hand; over vacant possession of the house to the respondent within 60 days. The appellant has preferred this appeal against that order. The learned counsel for the appellant has urged that the appellant was occupying the house in his own right as the owner, having purchased it from Muhammad Din by an agreement dated 3‑3‑1965 filed in evidence. He has contended that the respondent has based his claim of ownership on the basis of entries in Excise and Taxation Department and the learned Controller has erroneously accepted those entries as conclusive evidence of ownership in favour of the respondent and gave findings in his favour. According to him, entries in Excise and Taxation Department do not constitute conclusive evidence of title of ownership. He has urged that the evidence on record did not establish that the respondent was owner of the house and there was relationship of tenant and landlord between the appellant and the respondent. He has placed reliance on the cases reported in P L D 1967 Pesh. 380; 1982 C L C 116; P L D 1985 SC 1; 1986 .C L C 1613 and 1987 C L‑ C

148. On the other hand, the learned counsel for the respondent his contended that there is ample evidence on record that the respondent is the owner of the house and he had let it out to appellant and the appellant had not paid the rent and he was therefore liable to be ejected. He has relied upon that cases reported in 1981 S C M R 527; P L D 1981 Kar. 85 and 1982 C L C 1448. It is evident from the pleadings of the parties that there is dispute on respect of title of ownership over the house. The respondent's case is that the premises was in his possession since 1956 and he had constructed the house thereon and he had been paying K.M.C. taxes, Property taxes, etc. and it stood entered in his name in the Survey Record and he has produced some of the receipts of K.M.C. taxes and Property taxes, etc. The appellant's claim is that he had purchased the house from one Muhammad Din in the year 1965 by way of Sale Agreement He has filed in his evidence a photostat copy of the agreement. He has also filed photostat copies of some of the applications made by him to the artial Law Authorities alleging harassment by the respondent. The nature of dispute is such that the question of title could not be determined by the learned Controller in the ejectment case. Moreover, there is no clear evidence that the appellant was put in occupation of the house by the respondent as a tenant. Mere title of ownership does not prove relationship of landlord and tenant between the supposed owner and the occupant of the premises unless there is tangible evidence that such relationship was established by an agreement or by operation of law. In the instant case, there is no evidence of agreement of tenancy between the parties except the oral word of landlord and one witness Muhammad Yousuf refuted by the appellant. Since the matter involved dispute in respect of title over property, the learned Controller should have directed the parties to get the question of title decided by the competent Civil Court rather than having passed the order of ejectment on the basis of few documents tending to support the claim of title of respondent in the absence of concrete evidence to the relationship of tenant and landlord between the parties. In the case of Province of Punjab v. Mufti Abdul Ghani P L D 1985 SC 1, relied upon by the learned Counsel for the appellant, it was held that a person ascertaining his claim as landlord on the basis of ownership of property has to prove his title to get himself adjudged as landlord. In the instant case, the respondent's claim of ownership rests on the entries in the records of K.M.C. and Excise and Taxation Department in respect of payment of taxes. In the case Abdul Hameed v. Abdur Rasheed (1981 S C M R 527), relied upon by the learned counsel for the respondent, Supreme Court did not interfere with the concurrent findings of two appellate Courts below to the fact that there was evidence to the existence of relationship of tenant and landlord between the parties. But in the case the evidence on record does not bear out that there existed relationship of tenant and landlord between the parties. In the case Haji Muhammad Ramzan v. Mian Jamil Shah P L D 1967 Pesh. 380, it was held by a learned Single Judge that entries in Excise and Taxation Register and Register of rent maintained by the landlord were irrelevant in enquiry to the relationship of landlord and tenant. In a case Muhammad Anwar v. Mst. Nafeesa Begum (P L D 1981 Kar. 85), the occupant of the house was held to be the tenant of the person claiming to be the landlord in absence of specific plea of non‑existence of relationship of landlord and tenant. In the instant case, the appellant had taken the plea from the very beginning that he was not occupying the house as the tenant. In a case Molvi Muhammad Tufail v. Abdur Rehman and others (1982 C L C 1448), it was held by a Single Judge of the Lahore High Court that the question of title over property raised before Rent Controller could be determined by him. But a contrary view has been taken by a learned Single Judge of this Court in a case Mst. Fatima v. Mst. Hanifa (1986 C L C 1613), wherein it has been held that the dispute over relationship of landlord and tenant requires determination by Civil Court. Same view was propounded in the case M/s. Mehran Shoes v. Muhammad Ismail and others (1987 C L C 148). I am of the view that much depends upon the pleadings of the parties as regards the question of relationship of tenant and landlord and to determine whether the dispute is of the nature as it needs determination by the Civil Court or it can conveniently be decided by the Controller. It follows from the facts discussed above and the views adopted in several cases referred to above that the dispute in respect of the title over the disputed house is of such a nature that it could not be determined by the learned Controller exercising special jurisdiction under the rent laws but it needs g determination by a Civil Court of competent jurisdiction. Accordingly the appeal is allowed, the impugned order is set aside and the Rent Case No.2092/79, this appeal has arisen from, is dismissed. In view of legal implications mentioned above, no order is made for costs. AA/B‑161/K Appeal allowed.