2015 PLP 1642 (MLD)

ABDUL LATIF KHAN, J.

This Constitutional petition has been preferred against the judgment dated 14-7-2008, passed by learned Addl: District Judge-V, Mardan, whereby the appeal filed by respondents was accepted and the judgment dated 30-4-2007, passed by Rent Controller Mardan was set aside by dismissing the eviction petition of petitioner.

2. Arguments heard record perused.

3. A perusal of record reveals that eviction of respondents was sought by the petitioner from the premises in dispute on the ground of default in payment of rent, personal bona fide need and reconstruction. The respondents denied relationship of landlord and tenant and claimed ownership on the basis of Mutation No. 924 attested on 30-12-1986. A preliminary issue regarding existence of relationship of landlord and tenant between the parties was framed.

4. The respondents have purchased 10 Marlas of land by dint of Mutation No.924 on 30-1-1986 in Khasra No.656, which is situated adjacent to Khasra No.647, falls in one Khatha, wherein Flour Machine has been constructed and is in possession of respondent since long. The petitioner has admitted the installation of Flour Machine in the year 1960 in his cross-examination as P.W.6. It is also admitted that machine was installed by the respondents and is in their possession since then. The petitioner has never objected nor demanded rent at any stage from the respondents during last more than 20 years. There exists no agreement even oral to the effect that rent has been fixed and paid by the respondents to the petitioners. The petitioner failed to prove any evidence that suit premises possessed by respondents, is owned by them. Similarly no cogent evidence has been brought on record to prove the relationship of landlord and tenant between the parties, which is the bounden duty of the petitioner as burden to prove squarely lies upon the petitioner. No proof of demarcation with regard to Khasra Nos.647 and 656 in between the owners of both the properties has been produced.

5. It is also pertinent to mention that no partition has been effected. The petitioner failed to bring on record copy of any partition proceedings. He deposed in his cross-examination that it took place however its copy is not available with him. It has been admitted by the petitioner that respondent has purchased the property measuring 10 Marlas from Mst. Sultan Begum. The dispute between the parties relates to title and the demarcation of land in occupation, between owners of Khasra Nos.647 and 656 and can only be resolved through civil Court and landlord is advised to appear before Civil Court for redressal of grievances and seek ejectment after getting title established by the competent Court.

6. In the instant matter serious disputes of identity of property qua title are involved which do not fall within the jurisdictional domain of Rent Controller as it can only be resolved by the Civil Court. In case of denial of relationship as landlord and tenant, issue being one of jurisdiction be determined first. Wisdom derived in this regard from the judgment of apex Court in case of 'Afzal Ahmad Qureshi v. Mursaleen' reported as 2001 SCMR 1434.

7. It is pertinent to mention that mere bald allegation regarding existence of relationship as landlord and tenant would not be sufficient and instead has to be proved through documentary or trustworthy cogent and convincing oral evidence. In case of failure of landlord to this effect Rent Controller being persona designata has left with no option but to direct landlord to get the title established from competent Civil Court. Relation between the parties has to be proved through direct and convincing evidence, both documentary and oral and mere entry made in record of excise or taxation or other alike documents did not create the relation rather it is to be proved through rent deed and receipts of payment of rent forwarded through proper custody. The Court of appeal has decided the lis pending before it with reasons and application of independent mind which is not open to any exception. For the aforesaid reasons instant petition being without substance stands dismissed. ZC/495/P Petition dismissed.