2011 PLP 1834 (MLD)

AMIN-UD-DIN KHAN, J.

This appeal has been filed against the eviction order dated 8-7-2006 passed by learned Rent Controller Rahim Yar Khan whereby respondents' application for ejectment was accepted and the judgment/ order dated 3-1-2008 passed by learned Additional District Judge Rahim Yar Khan whereby the appeal of the appellant was dismissed.

2. In ejectment petition filed by the respondents the appellant denied the relationship of landlord and tenant between the parties but the learned Rent Controller framed five issues and tried the same. After full trial learned trial Court accepted the ejectment petition filed by the respondents and the appeal filed by the appellant was dismissed by the learned Additional District Judge.

3. I have noticed that when relationship of landlord and tenant was denied, the learned Rent Controller was bound to frame only one issue with regard to the existence or otherwise of the relationship of landlord and tenant between the parties. Though issue with regard to the existence or otherwise of relationship of landlord and tenant has been framed but unnecessarily other issues have been framed and tried.

4. Learned counsel for the appellant states that the learned Rent Controller has based his findings upon the pleadings in the previous litigation; that the position has altogether changed now; that it has come on record that even ejectment-petitioners/respondents have sold the major portion of that property. He further submits that the "Phar" which is in dispute admittedly is not in the ownership of the ejectment-petitioners nor any property owned by them is adjacent to that "Phar". Learned counsel further submits that previously full shop was in the ownership of the ejectment-petitioners etc. Further submits that the learned local commission has visited the spot and has prepared the site plan; that it is admitted that Allah Ditta ejectment-petitioner is owner of shop at the distance of two shops owned by Tariq Majeed and Fazal Din from the said "Phar". Learned counsel further submits that previously suit filed by said Allah Ditta was dismissed; that it is admitted position that this "Phar" is, owned by Market Committee and it is not allotted to anyone; that AW-1 Allah Ditta admitted the case of the appellant in his cross-examination which has been ignored by both the learned Courts below.

5. On the other hand, learned counsel for the respondents submits that in a previously filed written statement the appellant has admitted that he is paying the rent to Allah Ditta and that on the basis of that admission both the Courts below have rightly passed ejectment order against the appellant.

6. I have heard, learned counsel for the parties and have gone through the record.

7. I have noticed the learned trial Court wrongly framed the issues and has recorded its findings on Issue No.1 on the basis of indirect evidence and interpreted in his own way the documentary evidence in the shape of previous litigation between the parties. As per record and evidence produced by the parties, the position which was at the time of previous litigation has altogether been changed now. There is no direct evidence with regard to existence of tenancy and it was ejectment-petitioners who asserted the relationship of landlord and tenant as onus to prove this issue was on the ejectment-petitioners which they miserably failed to discharge the onus of this issue. Though the ownership of the property in dispute is not required to be proved but at least it was the duty of the ejectment-petitioners/respondents to prove that the possession of this "Phar" has been handed over to the appellant and there exists an agreement of tenancy between the parties. It is not denied by the ejectment-petitioners that most of the portion of Shop No.43 has been sold through registered sale deeds to various persons. It is also not denied by the ejectment-petitioners that no property owned by them is adjacent to the impugned "Phar".

8. Respondent/ejectment petitioner failed to discharge onus to prove issue No.1. He failed to produce reliable, convincing and direct evidence to prove this issue. The findings recorded by both the courts below are result of misinterpretation of documentary evidence on record, therefore, both the courts below reached to a wrong conclusion. I set aside the findings recorded by both the courts below on issues Nos.1 to

3. In the light of what has been discussed above, I accept this appeal and set aside the impugned judgment/orders passed by both the Courts below. Resultantly, the ejectment petition filed by the respondents is dismissed. H.B.T./A-160/L Appeal accepted.