2007 CLC 1106 (PLP)

FAZAL-E-MIRAN CHAUHAN, J.

Brief facts of the case are that; respondent No.1 Shahan Masih, tiled an ejectment petition against the petitioner regarding Property No.428-K, Q-Block Sarai Dhobian Model Town Extension Scheme, Lahore, in which, the petitioner tiled her written statement denying the relationship of landlord and tenant. Issues were framed. Respondent No.1 produced three witnesses in his support, whereas, the petitioner also produced three witnesses. The learned Rent Controller dismissed the ejectment petition vide order, dated 11-6-2004. Feeling aggrieved, respondent No.1 filed an appeal before the learned Additional District Judge. During pendency of appeal, an application under Order XLI, rule 27, C.P.C. for permission to produce the certified copies of survey of property was filed, which was accepted vide order, dated 16-1-2006, and is being impugned through this writ petition.

2. Learned counsel for the petitioner states that; on 10-10-2000, suit for specific performance was filed by the petitioner seeking performance of agreement to sell, whereas, the ejectment was filed by respondent No.1 subsequent to that on 11-6-2004. There was no relationship of landlord and tenant between the parties and the ejectment petition was rightly dismissed by the learned Rent Controller. The petitioner was in possession of the house on the basis of agreement to sell. No rent was ever paid by the petitioner to respondent No.1 admitting him to be the landlord of the house, in question. The learned Additional District Judge erred at law by allowing respondent No.1 to produce a document (Survey Report) that she is a tenant in the property, in question. This document was not exhibited nor the petitioner was ever confronted with the said document to admit or denied that any such statement was made by her before the Survey Team admitting the tenancy. Further states that; the record of Excise and Taxation or any entry made is not relevant to establish the relation of landlord and tenant, when the same is specifically devoid by the petitioner. The learned lower Appellate Court has not considered the evidence led by the petitioner. In this respect, reliance has been placed on the subject: (i) Gul Dad Khan v. Rahim Shah PLD 1978 Kar. 19, (ii) Phool Muhammad v. S. Hassan Arif Fatmi and 4 others 1981 CLC 1719, (iii) Abdur Rehman and others v. Abdul Qadir and others 1998 CLC 401, (iv) Karachi Transport Corporation through Secretary and others v. Mukhtar Begum and others 1998 SCMR 809, (v) Muhammad Lehrasab Khan v. Mst. Aqeela-un-Nisa and 5 others 2001 SCMR 338 and (vi) Mst. Nek Bibi and 8 others v. Mst. Maryum Begum and 5 others 2003 MLD 702.

3. Conversely, learned counsel for respondent No.1 argued that; the admitted facts of the case are that respondent No.1 is owner of the property. The petitioner was put in possession by respondent No.1. The alleged agreement to sell dated 5-1-2000 was denied by respondent No.1, whereas, the survey was conducted by the Property Tax Department on 2-8-2000. The statement of the petitioner, being possession of the property, was recorded by the Survey team, wherein she stated that she is in possession as a tenant under respondent No.1, whereas, respondent No.1 by producing the certified copy of the survey report, discharged its burden and the onus shifted on the petitioner to prove otherwise. Further states that; evidence of respondent No.1 as A.W.1, it was specifically stated that the petitioner had not paid the rent since January, 2000 and by producing Survey Form as additional evidence, produced on record, the petitioner is tenant of respondent No.1. Since, the petitioner failed to prove or discharge the burden in rebuttal was rightly ordered to vacate the premises by the learned lower Appellate Court.

4. I have heard learned counsel for the parties, perused the impugned judgment and the evidence on record. A.W.1 admitted that the rent was not paid in his presence. His main stress was on the Survey Form, alleged to have been filed by the petitioner. A.W.2 Saddique Masih is a relation of respondent No.1, who stated that: whereas, in the affidavit of it was written as under: Respondent No.1 himself appeared as A.W.3. On the other hand, R.W.1 and R.W.2 supported the version of the petitioner/tenant R.W.3. She denied that she was put in possession as tenant or she had paid the rent to respondent No.1. She claimed the possession on the basis of agreement to sell. She denied her signatures on the form submitted to the Survey Team. The learned Rent Controller proceeded to hold that respondent No.1 failed to prove the relationship of landlord and tenant and dismissed ejectment petition. The main stress of respondent No.1 was on Survey Form, alleged to have been signed by the petitioner but he failed to produce the record of Excise and Taxation Department to prove the document and the learned Rent Controller rightly held that respondent No.1 failed to prove his case. It is settled law that any entry made in Excise and Taxation record do not prove ownership of rented premises or relationship of landlord and tenant between the parties. Reliance is placed on Mst. Johan Ara and others v. Dad Muhammad and others 1989 ALD 352(2).

5. For what has been discussed above, this writ petition is allowed; impugned judgment, dated 16-1-2006, passed by the learned lower Appellate Court is set aside and the order, dated 11-6-2004, passed by the learned Rent Controller is restored. Ejectment petition stands dismissed. F.B./P-9/L Petition allowed.