1983 PLP 1779 (CLC)

House No. 1134/B, situate in Mohallah Faqir Abdullah, Dera Ismail Khan City was owned by Faqir Abdul Fazal Khan and his relatives who sold it to the applicant Syed Shabir Hussain Shah through a compromise decree, dated 7th November, 1974 in Suit No. 694/1 granted by the Senior Civil Judge, Dera Ismail Khan, in favour of the applicant. The respon dent Muhammad Hussain was in possession of this house as a tenant on payment of Rs. 12 as monthly rent to the applicant since before the decree granted in favour of the applicant. After the purchase of the house, the applicant demanded rent from the respondent and also sent a notice to him about its purchase but the respondent failed to pay rent of the house to the applicant and was also causing damage to it. The applicant needed the house for his own personal use as well. So he brought an 'application in the Court of Civil Judge/Rent Controller, Dera Ismail Khan on 28th April, 1975 for ejectment of the respondent. The respondent mentioned inter alia in his written statement that there was no relationship of landlord and tenant between the parties, that he had become owner of the suit house by adverse possession of more than 100 years, that the decree of Faqir Abdul Fazal Khan, etc. in favour of the applicant was collusive, illegal, fraudulent and that his predecessors were owners of the suit house and he inherited it from them. He lastly contended that he had never paid rent of the suit house to any person. As the respondent had denied the tenancy regarding the suit house, the learned Senior Civil Judge, Dera Ismail Khan, who was then seized with the matter, framed the following preliminary issues :‑ (1) Whether the relationship of landlord and tenant exists between the parties ? (2) Relief.

2. Subsequently the applicant came to know that the respondent had executed a rent deed in favour of the original owners Faqir Abdul Fazal Khan, etc. and be submitted an application to the Rent Controller on 9th December, 1975 for allowing him to produce the rent‑deed allegedly executed on 8th November, 1965 by the respondent and further evidence to prove it. This application was resisted by the respondent. How ever, the Additional Civil Judge, Dera Ismail Khan who was seized with the matter disallowed the production of the rent‑deed vide order, dated 7th May, 1976 on the ground that the person in whose possession the rent‑deed was alleged to be, was not a party in the application and under section 66 of the Evidence Act, he could not be summoned to pro duce a deed. However, the learned Rent Controller allowed the appli cant to produce secondary evidence regarding the rent‑deed. The parties then produced evidence pro and contra the preliminary issue. The learned Rent Controller decided the preliminary issue in favour of the applicant and held, vide his order dated 27th June, 1978 that the relationship of landlord and tenant existed between the parties and ordered the ejectment of the respondent from the suit house. The res pondent, feeling aggrieved, filed an appeal before the District Judge, Dera Ismail Khan which was accepted on 27th February, 1979 and the order of the learned Rent Controller was set aside and the application of the petitioner was dismissed. This time the applicant, feeling aggrieved filed the present S. A. O.

3. The learned District Judge accepted the appeal of the respondent on the ground that secondary evidence regarding the execution of the alleged rent‑deed was improperly allowed by the learned Rent Controller and that the present appellant had failed to prove his ownership over the suit house. However, the learned District Judge was wrong in holding that the secondary evidence could not be allowed under the Evidence Act and that the applicant should. have summoned the person in whose possession the rent‑deed should have been and ordinarily such persons would be the owners of the house and that it is possible that Faqir Abdul Fazal Khan, being Assistant Commissioner. he might have coerced the respondent to execute the rent‑deed. In so far the contention of the learned District Judge is concerned, suffice it to say that proceedings before the Rent Controller are not strictly governed by the C. P. C. and the Evidence Act, but the Rent Controller can evolve his own procedure provided such procedure does substantiate justice between the parties and does not offend the principle of natural justice. Strictly speaking, the learned Rent Controller was right in holding that the person in who possession the rent‑deed was alleged to be being a third person, could not be called to produce that document. He, therefore, allowed the production of secondary evidence to prove the contents and execution of the rent‑deed. There are many judgments of superior Courts wherein it has been laid down that the Rent Controller is not 4 Court in stricto senso and in this connection reference may be made to Khushi Muhammad v. Khadeja Hakeem and another (P L D 1976 Lah. 99) ; Javaid Iqbal v. Rana Muzaffar Khan (1976 S C M R 229) ; Muhammad Yousaf v. Muhammad Hassan and 7 others (1981 C L C 1181); Abdul Majeed etc. v. Muhammad Aslam (1981 C L C 20) and Punjab Province etc. v. Hafiz Sultan Mahmood (1982 C L C 169).

4. The respondent lead alleged in his written statement that, firstly, he had become owner by adverse possession and, secondly, his ancestor were owners of the suit property and he inherited it from them. So far as the first contention is concerned, it may be stated that if a person alleges adverse possession over any property, then it means that he is not actually its owner but has come to occupy it by some overt act and then sets up a hostile claim against the actual owner. As such it was imperative upon the respondent to have disclosed as who were the actual owners of the suit house against whom he was setting up a hostile title and whose right to obtain possession thereof had extinguished under section 28 of the Limitation Act, 1908. The respondent has not brought an iota of evidence, oral or documentary, on this point. On the contrary, the witnesses produced by him have stated that the suit house is a part of the property situate in the Mohallah of the Faqir Family thereby mean ing Faqir Abdul Fazal Khan, etc. which would show that the suit house was the property of the person from whom the present appellant had purchased it through the said decree. The respondent also failed to pro duce any evidence to prove, that the suit house was owned by his forefathers. None of his witnesses had adverted to this aspect of the matter. Although they have been seeing the respondent living in the suit house but they do not know as in what capacity he was occupying it. The failure of the respondent to prove his ownership or his adverse possession over the suit house would lead only to one conclusion and the same is that he was occupying it was a tenant. The factum of tenancy had bee proved beyond any doubt by the secondary evidence produced by the appellant. The petition‑writer, who is now an Advocate, appeared as witness and stated that he had written the rent deed in respect of the suit house at the instance 'of one Muhammad Hussain in favour of Faqir Abdul Fazal Khan. A copy from the register of the petition‑writer ha also been admitted in evidence and marginal witnesses thereof have also entered the witness‑box to confirm the execution of the said deed. Muhammad Hussain, the executant of this deed, can be no other person than the present respondent because according to his own admission he is in occupation of the suit house since a very long time. In a similar matter, reported as N L R 1981 A C

520. A. Rahman, J. of the Lahore High Court was pleased to hold that the relationship of landlord and tenant existed between the parties. Reliance in this respect can also be placed on Abdul Hameed v. Abdul Rasheed (P L D 1981 S C 762).

5. The learned counsel for the respondent took objection to the admission of secondary evidence in the case at the first appellate stage and also before this Court. But may it be known to him that such a objection could not be taken at the appellate stage. If a party has any objection regarding any document or production of secondary evidence t prove any document, the time for such objection is at the stage when such document is being admitted or the secondary evidence is Will produced before the trial Court. If such an objection is. not raised ad the earliest available opportunity, it would not be allowed at the appellate stage. In this respect, reliance can be placed on the case reported as PLD1968SC140.

6. The net result of the above discussion is that the relationship of landlord and tenant had‑been proved between the patties and the respon dent having denied it had obviously failed to pay any rent to the appel lant. The learned Rent Controller rightly ordered his ejectment from the suit house. This appeal is, therefore, accepted, the judgment, dated 27th February, 1979 of the learned District Judge, Dera Ismail Khan, is set aside and that of the Additional Civil Judge/Rest Controller, Dera Ismail Khan, dated 26th July, 1978 is restored with no order as to costs. The appellant had also filed an application for production of additional Evidence, but this appeal having been accepted, the application had become infructuous and is disposed off accordingly. K.M.A. Appeal accepted.