2010 PLP 203 (YLR)

ZUBDA-TUL-HUSSAIN, J.

The parties were litigating before the learned Rent Controller, Lahore, where the writ petitioner Muhammad Sharif filed an ejectment petition against respondent No.1 Mst. Mukhtaran Bibi for her eviction from a residential Quarter No.4 in Property No.S-XXXVIII-S-43. The contention of the petitioner was that the respondent was occupying the said premises against the rent of Rs.250 per month. The respondent, while contesting the ejectment petition, denied her tenancy under the petitioner and claimed her ownership on the basis of her adverse possession on the land since 1947. She also claimed that she erected the disputed house herself.

2. The preliminary issue regarding the relationship of landlord and tenant framed by the learned Rent Controller was decided in the negative and the ejectment petition was dismissed by order dated 30-11-1998. The appeal filed by the petitioner before the learned Addl. District Judge, Lahore was also dismissed through order dated 14-10-2000.

3. The petitioner was non-suited mainly on the ground that the residential quarter was constructed on the State land by the respondent herself and she had never atoned herself as a tenant under the petitioner.

4. The parties produced oral evidence in support of their respective contentions, but the petitioner also relied upon various documents from the record of Excise and Taxation, Department as well as the copy of the statement of the respondent recorded as a witness in a criminal case, wherein she admitted her tenancy under the petitioner. The oral evidence by itself would not be sufficient to determine the issue because it is balanced on both the sides, but it seems that the learned Rent Controller as well as the learned first appellate Court did not appropriately consider the relevant documentary evidence and their findings, therefore, suffer from misreading and non-reading of the evidence.

5. The record and the documents of the Excise and Taxation Department may not be conclusive evidence to establish the relationship of the landlord and the tenant, but at the same time, they are not totally irrelevant at least for the indication of the ownership and payment of the property tax. In any case, the PT-1 Form (Exh.A-10) clearly showed the name of the petitioner as the owner of the property. Thus, these documents clearly discarded the claim of the respondent as owner of the premises. What is still more important was that the respondent herself admitted her tenancy, when she appeared as a witness in the Court of learned Illaqa Magistrate. A copy of her statement is available on record as Exh. A-12. This document is the part of the judicial record and its certified copy, is therefore, per se admissible in evidence.

6. The respondent was duly confronted with this statement. She denied this statement and even her appearance as a prosecution witness, but Exh.A-12 bears also he full particulars of the name of the respondent, the name of her husband and the lace of abode, which is exactly the same, as has been given in the petition as well as the rent petition and it is not denied by the respondent. The admission on part of the respondent, recorded by her before the learned Magistrate, could not be ignored. She had stated in unequivocal terms that she was the tenant under the petitioner Muhammad Sharif. She, no doubt, denied it, but as already stated, this being copy of the judicial proceedings and the particulars of the property with reference to the address of the respondent being the same, there is no justification or plausible reason to discard this statement from the evidence.

7. The findings of the learned Rent Controller as well as the learned first appellate Court are factually and legally infirm and result of misreading and non-reading of the evidence and, therefore, suffer from such substantial legal error because of which the same cannot be maintained. The writ petition is thus allowed. The findings of the learned Rent Controller as well as the learned Additional District Judge, Lahore are set aside and the issue regarding the relationship of landlord and tenant is determined in favour of the petitioner.

8. As the respondent is a tenant under the petitioner, but had denied her tenancy under him, there can be no question of payment of rent. The default is in built in the denial of tenancy. The ejectment petition filed by the petitioner, therefore, stands accepted. The respondent shall hand over the vacant possession of the disputed premises to the petitioner within two months of the date of this order. M.U.Y./M-586/L Petition allowed.