2022 PLP 1987 (CLC)

ROZI KHAN BARRECH, J.

The appellant Sher Muhammad son of Abdul Samad assailed the judgment dated 08.10.2018 ("impugned judgment") passed by Civil Judge-III/Rent Controller, Quetta, (hereinafter "rent controller"), whereby the Eviction Application No.03 of 2015 filed by the respondents was accepted and the appellant was directed to handover the vacant possession of the house built on the land bearing Khewat No.211, Khatooni Nos.408 to 412, Khasra No.5 Qitas, measuring 1039 sq ft, situated in Ward No.52 Tappa No.3, Mujahid Street, near Kasi Graveyard City District Quetta ("disputed property") to the applicant/respondents within forty five days.

2. Brief facts leading to the filing of the instant appeal are that the respondent (landlord) namely Malik Muhammad Jaffar Kasi filed the aforesaid eviction application under section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter "the Ordinance, 1959") against the appellant/tenant Sher Muhammad (tenant) for his eviction from the disputed property mainly on the ground of default and personal requirement. When put on notice by the rent controller, the appellant/tenant contested the application inter alia, on the ground that there is no relationship of landlord and tenant between the parties. In view of the allegation and assertion of the parties, the learned Rent Controller framed the following issues: "

1. Whether the exists relationship of landlord and tenant between the parties concerning the house bearing Khewat No.211, Khatooni Nos.408 to 412, Khasra No. 5 Qiras, measuring 1039 sq ft, situated in Ward No.52 Tappa No.3, Mujahid Street, near Kasi Graveyard City District Quetta?

2. Whether the applicant is entitled for the relief claimed for?

3. Relief?" After framing of issues, the trial court directed the parties to produce their respective evidence, which was recorded and finally the eviction application filed by the respondent/landlord was accepted vide impugned judgment dated 08.10.2018 and the appellant/tenant was directed to vacate the disputed property within forty five days, which is now impugned by the appellant/tenant by filing the instant appeal.

3. I have heard arguments of the learned counsel for the parties, gone through the record of the case and perused the relevant law on the subject as well.

4. The main controversy between the parties is whether there exists a relationship of landlord and tenant between them. It was claimed by the appellant that he is tenant of Abdul Raziq (RW-4) and he is in its occupation since long. However, he himself failed to establish his claim through any cogent and confidence inspiring evidence. It is an admitted fact that in order to establish his claim RW-4 filed an independent suit for declaration, which has been dismissed by the Civil Judge on 12.05.2018, which was not challenged before the appellate court and it attained finality. On the contrary the respondent/landlord in order to establish his claim over the demised premises beside producing mutation entries of the disputed property Ex.P/A-1, which is in the name of the respondent. The appellant/tenant failed to place a single piece of documentary evidence showing that the disputed property has ever been occupied by him as the owner nor any agreement to sell could be brought on record and the appellant also failed to produce any sufficient evidence to justify his possession in any lawful capacity.

5. The contention of the learned counsel for the appellant that in case of complicated question of title, the learned Rent Controller lacks jurisdiction under the Rent Restriction Ordinance, 1959, is not tenable, because if the tenant fails to produce any title document to support his possession over the premises in question, the Rent Controller, or the Appellate Court are competent to determine the relationship of landlord and tenant between the parties. Reference in this respect is to be made to the case of Ahmed Ali alias Ali Ahmed v. Nasar-ud-Din and others (PLD 2009 SC 453), wherein, at page No.458, it was observed as under: "Though the Rent Controller is not competent to determine the question of title of the property assuming the role of a civil Court, but if the tenant fails to produce the documentary evidence to support his title over the premises in dispute, the Rent Controller can determine the relationship of landlord and tenant between the parties."

6. The other contention of the learned counsel for the appellant that in absence of tenancy agreement or rent receipt, the mere mutation entry / ownership is not determining factor to establish the relationship of the landlord and tenant between the parties, is also not relevant, as the respondent in the eviction application had specifically pleaded that appellant is occupying the disputed property as a tenant at monthly rent of Rs. 3000/- payable in advance on 5th of each succeeding month through oral agreement w.e.f. year 2002.

7. The provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 do not contain any condition that agreement of landlord and tenant must be in a particular form, it may even be verbal. Agreement mentioned in provision of Section 13(2)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959, has been interpreted as any type of agreement without any insistence on formalities. Verbal agreement of tenancy has always been accepted as an agreement under the provisions of law. In this respect reliance is placed on a case titled as Shajar Islam v. Muhammad Siddique PLD 2007 Supreme Court

45. Relevant portion therefrom is as under: "This is settled proposition of law that a landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties. However, in the normal circumstances in absence of any evidence to the contrary, the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily created by a written instrument in express terms rather may also be oral and implied. The respondent having raised a specific plea that he was in possession of premises in his own right as J&K refugee has not been able to substantiate his assertion through any evidence, oral or documentary and we having examined the record with the assistance of learned counsel for the parties, have found that two Courts subordinate to the High Court, after scanning the entire evidence in detail, have determined the status of respondent as tenant of the premises ".

8. Existence of relationship between the parties would imply acceptance of title of landlord, as such, whenever a tenant denies that title and it is established that he is a tenant, he would forfeit his tenancy having become a trespasser and liable to be ejected forthwith. Tenants have to stand on their own legs and are required to discharge onus of proof placed on them. In the instant case the appellant denied relationship of landlord and tenant, thus the burden of proof heavily shifted on him to prove his title or locus standi for retaining the premises in question with him more importantly in which capacity? Appellant though in his written reply had challenged ownership of the premises in question, but failed to prove the same through oral or documentary evidence. If a tenant denies relationship of landlord and tenant, tenancy is automatically terminated and he is liable to eviction. The trial court, after assessment of the facts, circumstances and the evidence available on record, has rightly accepted the application; therefore, the impugned judgment dated 08.10.2018 passed in Eviction Application No. 03 of 2015 is just and proper being well reasoned. Besides, the learned counsel for the appellant/tenant has also failed to point out any illegality, irregularity, infirmity or perversity in the impugned judgment warranting this Court to interfere in it. Thus, in view of what has been stated and discussed herein above, the appeal is, accordingly, dismised MQ/66/Bal. Appeal dismissed.