2002 PLP 384 (MLD)

4. Haji Nawab Din, respondent , in support of his case examined Ahmad Ali, Muhammad Ashfaq, as P. Ws. l and 2 he himself appeared as P. W.3. Documentary evidence Exh. P.1 to Exh. P.6 was also produced whereas the appellant examined Mehmood Ali, Raja Muhammad Siddique, Muhammad Sadiq Gill, Raja Banaras Khan as R.Ws. 1, 2, 3 and 5 and he himself appeared as R.W.4. The appellant also produced documentary evidence Exh. S.R.l to R.4, Exh.R.W.4/1 to R.W.4/6. Exh.R.W.5/1 and mark R.W.4/1 to Mark R.W.4/1%.

5. The learned Rent Controller vide impugned order, dated 8‑2‑2000 accepted the application filed by Haji Nawab Din and passed the eviction order against the appellant. The learned Rent Controller accepted the ejectment application on the ground that admittedly one Raja Banaras Khan (previous owner of the disputed premises) executed a sale‑deed (Exh.P.1) and that mere pendency of civil suit would not come to the rescue of the appellant. The learned Rent Controller held that the relationship of landlord and tenant existed between the parties as the appellant being in occupation of the disputed premises became the tenant by operation of law, therefore, the Rent Controller proceeded to decide the issue in favour of the respondent.

6. The learned counsel for the appellant contends that the findings of the learned Rent Controller on the issue of relationship of landlord and tenant is not based on evidence and that the appellant is not tenant under the respondent. According to the learned counsel, the appellant was not inducted in the disputed shop as tenant by the respondent namely Haji Nawab Din who purchased the disputed shop, or by Raja Banaras Khan, the original owner of the land over which the shop is constructed The learned counsel further adds that tenancy does not arise at the sole discretion of the landlord but the same has to be proved under the law. Reliance is place on Ahmed Shah v. Mst. Bibi Sakhian and another (PLD 1990 Lah. 48). It is further added by the learned counsel for the appellant that possession of the appellant is protected under section 53 of the Transfer of Property Act as there is an agreement in writing in favour of the appellant and the transferee is in possession to part performance of the agreement in writing between the parties. Further states that the appellant being the transferee is willing to perform his part of bargain as contained in written agreement and the suit for specific performance has been filed in the Civil Court, which is pending adjudication and the contract has been partly performed by paying the amount and taking the possession. Further it is argued that all rights and liabilities under the contract should arise and be enforced between the parties to the contract.

7. The learned Rent Controller proceeded to hold that the relationship of landlord and tenant existed between the parties on the basis of the sale‑deed dated 1‑3‑1995 (Exh.P.l) in favour of Haji Nawab Din, respondent. In spite of the fact that two witnesses, namely, Ahmad Ali son of Habib Muhammad (P.W.1) and Muhammad Ashfaq son of Khushi Muhammad (P.W.2) were produced by the respondent Haji Nawab Din and he himself appeared as P.W.3, the learned Rent Controller has not discussed their evidence. I myself have gone through the evidence produced by the respondent. P.W.1 Ahmed Ali has simply stated that Nawab Din is the owner of the shop in dispute and the appellant is the tenant under him and that the rate of rent is Rs.3,000 per month. Further stated that appellant has not paid the rent since September, 1995. .In cross‑examination he has. admitted that after receiving the rent Haji Nawab Din used to issue receipt. Muhammad Ashfaq P.W.2 stated that Nawab Din, respondent, is owner of the shop and the appellant is tenant under him. Haji Nawab Din himself appeared and stated that he purchased the shop vide sale‑deed EXh.P.I and the appellant is in occupation of the shop as tenant. He has stated that the appellant has paid the rent for three months after the purchase of them shop by him and thereafter he did not pay the rent. In cross‑examination he has admitted that there is no written tenancy between the parties and that he has not issued any receipt. He further deposed that he had issued two receipts and that he is uneducated. He admitted that he did not know whether the receipts were on blank paper or not. On the other hand, the appellant has produced Mehmood Ali as R. W.1 who stated that the shop is in possession of the appellant, who purchased it from Raja Banaras. He further stated that the electricity meter is in the name of the appellant and the shop was constructed by Sabir Ali appellant. Raja Muhammad Siddique, R.W.2 stated that the appellant is in possession of the hotel and the same has been purchased by the appellant from Raja Banaras. Muhammad Sadiq, R.W.3 stated that Sabir Ali appellant purchased the shop from Raja Banaras and he is continuously in possession of the same for the last 15 years and that the appellant is not tenant of the respondent. Sabir Ali Shaikh, R. W.4, appeared and stated that he has purchased the disputed property from Raja Banaras Khan in consideration of Rs.50,000 and he is in possession of the same as owner. He further deposed that there is electricity connection in the disputed shop in his name and he is paying the bill for the same. In the evidence the appellant was stated that he has constructed the shop by investing Rs. one lac and that he filed a suit for specific performance against Nawab Din, respondent, and that he has come to know that the respondent Nawab Din has obtained the sale‑deed from the original owner through misrepresentation and fraud. He produced electricity bill Exh.R. W.4/ 1‑4.

8. Neither any statement of the witnesses has been discussed by the earned Rent Controller nor the effect of document Exh.R.l and the plaint of suit for specific performance Exh.R.2 and the written statement filed by respondent Haji Nawab Din in Civil Court has been discussed while disposing of the ejectment petition. There is evidence in the shape of electricity bill. Exh.R.W.I/1‑4 which is in the name of the appellant, and in this view of the matter the ownership of the shop viz‑a‑viz the tenancy has become the core issue in this case. No doubt the finding has been recorded by the learned Rent Controller that a Civil Court would not come to his (respondents) rescue, but, to my mind, the learned Rent Controller has not resolved this proposition. Under the law of ejectment, the tenant cannot be protected from ejectment merely impleading the p, agreement to sell in his favour or filing the suit for specific performance unless the sale‑deed is executed in his favour and the agreement to sell has been enforced.

9. To resolve the controversy between the parties, the definition of the word `tenant' as given in the Cantonments Rent Restriction Act (XI of 1963) is reproduced herein:‑‑ "`tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building by him or by any other person on him and includes:‑‑ (i) any person who continue to be in possession of his building after the termination of his tenancy; and (ii) in the event of the death of the tenant; his heirs and successors and after the termination of the tenancy, his heirs and successors who continue to be in possession or occupation of the building. " Relationship of the landlord and tenant w 11 the rent laws including law relating to Cantonment, rent law relating to urban properties in the Punjab, and the Sindh Rented Premises Ordinance, 1979 (Ordinance 8 No.17 of 1979) clearly envisages a bilateral relation arising from contract between the landlord and tenant or from a Statute. Tenancy is not a unilateral relationship. It depended upon the consent of both the landlord and tenant. In case reported as Ghazi Inam Nabi Pardesi and 15 others v. Dr. Maj. Syed Ahmed Hassan and another (PLD 1975 Kar. 530) it is held:‑‑ "(e) Tenancy‑‑‑ Must be proved‑‑‑Cannot be inferred‑Person can (in absence of statutory provision) become tenant with consent of landlord only. " The above stated view has been reaffirmed in case of Ahmad Shah v. Mst. Bibi Sakhian and another (PLD 1990 Lah. 48), where it has been held that:‑‑ "Whenever landlord failed to prove the title of the property in clear terms, Rent Controller being in doubt as to title of the landlord referred the parties to the Civil Court‑"

10. Admittedly there is a written agreement of sale between the appellant and Raja Banaras Khan, previous owner who has appeared in the witness‑box as RWA and got recorded a statement confirming the sale in favour of the appellant. In this view of the matter, the appellant has also the protection of section 53 of the Transfer of Property Act, as he has completed the requirements of section 53 of the Act as there is agreement in writing in favour of the appellant. Whether the appellant is transferee in part performance of the contract and took possession of the property under the agreement and whether the transferee is willing to perform his part of the bargain as contained in writing in the agreement and whether the contract has been partly performed and all rights and liabilities under the contract should arise and be enforced between the parties to the contract are the questions to be decided by the Civil Court, in which the suit for specific performance of the appellant is admittedly . pending. The Hon'ble Supreme Court in case reported as Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) held that:‑‑ "It is riot correct that even if the landlord failed to establish the relationship of landlord and tenant beyond reasonable doubt he would still be allowed the benefit of affirmative finding on the issue. " It is further held in the case of Rehmatullah (supra) that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation, the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment.

11. This view that a person basis his claim on right to receive rent on account of the property, he will have to satisfy the Rent Controller about his title as consistently held by the Hon'ble Supreme Court. See' the case Province of the Punjab through Education Secretary and others v. Mufti Abdul Ghani (PLD 1985 SC 1) and case of Ahmad Shah v. Mst Bibi Sakhian and another (PLD 1990 Lah. 48). As discussed above that merely sale‑deed Exh. P.1 has beer. executed by the General Attorney of Raja Banaras Khan, the original owner, in favour of Haji Nawab Din, respondent, ,is not enough to record a finding in favour of the respondent that there is relationship of landlord and the tenant between the parties. Since there is doubt about the title of the suit shop and the landlord has not been able to establish his position as landlord beyond reasonable doubt on the basis of the evidence produced by the parties, in this view of the matter, the finding recorded by the learned Additional Rent Controller, Walton Cantt. Lahore in his impugned order, dated 8‑2‑2000 is liable to be reversed and it is held that there is no relationship of landlord and tenant between the parties. Haji Nawab Din, respondent herein is advised to first get his title established from the Civil Court before seeking ejectment. For what has been discussed above, this appeal, is accepted; ejectment order, dated 8‑2‑2000 passed by the learned Additional Rent Controller Cantt., Lahore is set aside, the ejectment petition filed by Haji Nawab Din, respondent, under section 17 of the Cantonments Rent Restriction Ordinance, 1963 is dismissed. S.A.K./M.A.K./S‑301/L Appeal accepted.