P L D 1988 Lahore 239 (PLP)

The petitioner Mian Fazal Elahi has moved this Constitutional petition praying therein that the order passed by respondent No.1, learned Additional District Judge, Sheikhupura, dated 18-3-1987 may be declared without lawful authority and of no legal consequence.

2. Briefly stated, the facts of the case are that the petitioner is the owner of property bearing No.B 25/E situate at Jandiala Road, Sheikhupura, which property is adjacent to the premises of Rice Mills owned by him and is in occupation of respondent No.2 Muhammad Ramzan as a tenant at a monthly rent of Rs.200. According to the petitioner, the respondent No.2 committed default in payment of the rent and as such, the petitioner filed an eviction petition against him under section 13 of the Urban Rent Restriction Ordinance, 1959, for his ejectment from the property in question vide Annexure B. Respondent No.2 contested the proceedings by filing a written reply and denied the existence of relationship of landlord and tenant between the parties vide Annexure C . Out of the pleadings of the parties, the learned Rent Controller framed two issues and the material issue in the case was whether there exists relationship of landlord and tenant between the parties. The petitioner in order to prove the issue between the parties, produced three witnesses including himself. Apart from the oral statements of the witnesses, the petitioner produced a copy of mutation No.307, a copy of Excise and Taxation record of record of rights alongwith a copy of which documents are available the property, a copy of the sale deed in favour of the petitioner on record vide Annexures D, E, F and G .However, in rebuttal thereof, Respondent No.2 appeared himself as R.W.1 and also produced two more witnesses namely; Ali Muhammad (R.'W.2) and Haji Zafar All GI.W.3) alongwith the documents consisting of a copy of grounds of revision, a copy of the plaint, a copy of the statement of the petitioner made by him before the learned Civil Judge, a copy of the report of the Local Commissioner and two copies of the electricity bills. These documents are available on the record as Annexures J, K, L, M, N, and 101, respectively. The learned Rent Controller after considering the evidence produced by the parties, proceeded to pass an order dated 22 1986 that there existed relationship of landlord and tenant between the parties. Respondent No.2 feeling aggrieved of the order passed by the learned Rent Controller, went in appeal which was heard and accepted by the learned additional District Judge, Sheikhupura, vide his judgment dated 18 1987. The learned appellate Court mainly relying on the contradiction in the statement of Beer Din (P.W.1) and the statement of the petitioner himself as P.W.3 came to the conclusion that the respondent was not a tenant under the petitioner. It was further observed by the learned appellate Court that the respondent tenant was in possession of the property in question for the last about 25/30 years. It was further observed that the petitioner gave the possession of the property in question to the respondent freely with the object of achieving the pleasure of Allah Almighty. Thus, the learned appellate Court concluded his judgment by observing that it is not proved that the respondent got the possession of the property in question as a tenant from the petitioner as such, there was no relationship of landlord and tenant between the parties.

3. Learned counsel for the petitioner contended that there is ample evidence on record to show that the petitioner being the exclusive owner of the property in question, rented out the same to the respondent as ' a tenant. Learned counsel stated that documentary evidence coupled with the oral evidence produced by him has proved beyond doubt that he is the owner of the suit property and that the respondent is a tenant under him. It is next argued that the respondent himself filed a civil suit in which the petitioner took the plea that the respondent was his tenant and suit filed by the respondent was dismissed. Learned counsel took the plea that the civil suit of the respondent was dismissed wherein the petitioner made a statement that the respondent was his tenant and it was never challenged by the respondent before any Court of law. Learned counsel submitted that this circumstance coupled with other evidence will amply demonstrate that the respondent is a tenant under him. Learned counsel stated that the well reasoned judgment based 'On evidence of the learned Rent Controller has been set aside without any legal justification by the learned Additional District Judge. Learned counsel stated that the Appellate judgment is based on mere conjectures and surmises and that the documentary evidence produced by the parties has not at all been considered by him. In reply to the arguments of learned counsel for the petitioner, learned counsel for the respondent submitted that there is nothing on the record to show that the property in question was rented out to the respondent by the petitioner. Learned counsel stated that the finding of fact arrived at by the learned Appellate Court cannot be assailed in the Constitutional jurisdiction of this Court. Learned counsel stated that it was the bounden duty of the petitioner under the mandatory provision of West Pakistan Urban Rent Restriction Ordinance, 1959, to have proved that the property in question is held by the respondent as a tenant under the petitioner. Therefore, the learned counsel stated that the expression "landlord" and "tenant" as defined in the Rent Restriction Ordinance, 1959, shall be missing from the case in hand. Learned counsel further submitted that it is proved by him by production of cogent evidence that the. respondent is not a tenant under the petitioner. 4. 1 have heard learned the record very carefully. Beer Din P.W.1, Anwar Hussain counsel for the parties and have perused I have gone through the statements of P.W.2 and Mian Fazal Elahi P.W.3 wherein it is categorically stated that the writ petitioner Fazal Elahi is the owner of the disputed property. This ocular account provided by these witnesses is duly supported by documentary evidence produced and relied upon by the petitioner vide Exhs. A/l, A/3 and A

14. Annexure D at page 18, Annexure E at page 20, Annexure F' at page 22 and Annexure G at page 23 are respectively the copies of Jamdbandies, assessment record and sale deed which documents in turn have proved beyond doubt that the petitioner is the owner of the disputed property. These documents have heavily been relied upon by the learned Rent Controller to conclude that the petitioner is the owner of the property in question. However, the learned Appellate Court has not at all clearly held as to what is the position of this documentary evidence in law and its effect vis vis the parties. Additionally, the statement of the petitioner produced and relied upon by the respondent which statement was made by the petitioner before the learned Civil Court, will amply explain the position of the petitioner over the property in question. The statement of the petitioner, a copy of which has been placed on record at page 36, will show that the petitioner did take the plea before the Civil Court that the respondent was his tenant and that the petitioner will take steps in accordance with law for the ejectment of the respondent from the property in question. It was further undertaken by the petitioner that he will not forcibly evict: the respondent from the suit property. On the basis of this statement of the petitioner, the learned Civil Judge vide his order dated 20 1985 proceeded to dismiss the suit of the respondent. An observation made therein was that the respondent is satisfied. From the plain reading of the statement of the petitioner as well as the order passed by the learned Civil Court on 20 1985, it is clear that by implication the respondent conceded that he was a tenant under the petitioner. The petitioner did make a statement right in the presence of the respondent that the respondent was his tenant and that the respondent did not raise any objection whatsoever on the vivid statement made by the petitioner about the tenancy of respondent. In my view, the whole object of respondent No.2 in filing the civil suit vide Annexure K at page 33, was that the petitioner should not eject the respondent by taking the law in his hands. Therefore, after the institution of the suit and its dismissal thereafter, the respondent cannot under law be permitted to take a turn and to take the plea at this stage that the petitioner is not his landlord and that he is not his tenant under him. In my considered view, this evidence coupled with the other documentary evidence and the oral evidence, was enough to hold that the petitioner is the landlord and the respondent is a tenant under him. The learne6l, appellate Court has failed to consider this aspect of the case. Under the provisions contained in the West Pakistan Urban Rent Restriction Ordinance, 1959, the petitioner was able to prove that he being the owner of the property in question was in fact the landlord and that the respondent was his tenant and as such, the finding given by the learned Rent Controller was wholly justified in law as well as in evidence produced by the parties. The learned appellate, Court, in my view, traveled beyond his jurisdiction in upsetting the well reasoned judgment of the learned Rent Controller. If the learned appellate Court had considered the documentary evidence as refer to above, coupled with the oral evidence produced by the petitioner and the respondent, in its judicial perspective, he would not have come to a conclusion like the one he has arrived at vide his judgment dated 18-3-1987. The mere fact that the respondent instituted a civil' suit against he petitioner before the Civil Court and that the petitioner made a declaration before the Civil Court that the respondent plaintiff was his tenant in the property in question, was enough to show the status of the respondent in the property in question. If really he was not a tenant under the petitioner, he could not be satisfied with the statement of the petitioner wherein reference has been made that the respondent was his tenant and further that his own suit was dismissed on his satisfaction. This evidence is sufficient to hold that the respondent was a tenant under the petitioner in the property in question and, therefore, the case in hand is covered by clause (c) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1950, that the petitioner is the landlord and the respondent is the tenant.

5. The upshot of the above discussion is that the impugned judgment passed by the learned Additional District Judge Sheikhupura. dated 18-3-1987 is declared to be without lawful authority and of no legal consequence. Resultantly the petition succeeds and is allowed leaving the parties to bear their own costs. The respondent Muhammad Ramzan is allowed four months time to hand over the vacant possession of the property in question to the petitioner. A.A./F-54-L Petition accepted.