' MIAN SAQIB NISAR, J.---The respondent brought an ejectment application against the appellants under section 17 of the Cantonment Rent Restriction Act, 1961, alleging therein that the House bearing No,1194, located in Mohallah Dawood Nagar, Saddar Bazar, Sialkot Cantt. (demised premises) was owned by one Jewan son of Babu Lal, on whose demise, the said house devolved upon his legal heirs, Mst. Sakina Bibi and others; the respondent vide registered sale-deed dated 30-9-1999 had purchased the said house from the legal heirs of the deceased; the house is in possession of the appellants as tenants under the previous owners at the monthly rent of Rs,1,000.
The respondent alleged to have served the appellants with the legal notice about the change of ownership and required them to pay the rent to him, but as no heed was paid by the appellants, resultantly, the respondent brought the ejectment application.
2. The appellants denied the relationship of tenancy and claimed that they are in possession of the house for the last 60 years and have raised the constructions, therefore, neither Jewan nor his legal heirs have any title to the property. In any case, the relationship of tenancy was denied. In order to prove the tenancy, the respondent examined three witnesses. A.W.-1 Sh. Amir Ali is the attorney of the respondent and has deposed that the respondent has purchased the house from the legal heirs of Jewan and the appellants were in possession of the house as tenant under the above said legal heirs at the monthly rent of Rs,1,000. A.W.-2 and A.W.-3 have also deposed to the same fact. In the cross-examinations, all these witnesses have not deposed that the tenancy between Jewan or his legal heirs and the appellants was entered in their presence and if any rent was paid by the appellants to the said legal heirs. Even A.W.-1, the attorney of the respondent, in the cross- examination has stated:-- {{URDU TEXT}} ' The other witnesses of the respondent have not been able to sustain in the cross-examination to prove that the property was rented out to the appellants. Yet the learned Rent Controller, by relying upon the judgment reported as Sain Muhammad Tufail v. Anjuman-e-Darbar-eHussain (1993 M LD 316), has passed the impugned judgment, holding that the respondent has proved to be the landlord of the suit property.
3. Learned counsel for the appellants, by relying upon the definition of the "landlord" given in section 2 (g) of the Cantonment Rent Restriction Act, 1963 states, that under the law, the landlord is bound to prove that the property had been rented out to a person so as to create a relationship of tenancy; a person may be in possession of the property in any other capacity such as licensee and even trespasser, but for the purposes of exercising special jurisdiction under the special law, the relationship and the proof of tenancy between the parties is sine qua non.
4. I have heard the learned counsel for the parties. According to his own case, the respondent does not know as to what tenancy between the legal heirs of Jewan and the appellants was created; if the appellants had ever made the payment of the rent to him. Therefore, the defence of the appellants that they are occupying the house for the last 60 years, may be as the trespassers, cannot be ruled out. In order to achieve the ejectment order, the landlord is bound to prove that the property had been rented out to the tenant. Obviously, there' are two kinds of tenancy, one is contractual tenancy and the other is statutory. It is not the case of the respondent that the present is a statutory tenancy between the parties, because he is stepping into the shoes of an earlier owner. Any contract of tenancy has not been proved, rather in the cross-examination, it is conceded by the A.W.-2, while appearing as a witness of the respondent, that he does not have any A personal knowledge if the appellants are the tenants of the property. None of the previous owners, with whom, the contract of tenancy is alleged, has been examined by the respondent.
' In the light of above, I do not find that the respondent has been able to prove the relationship of tenancy between the Parties and, therefore, in such circumstances, on account of the judgments reported as Rehmatullah 'v. Ali Muhammad and another (1983 SCM R 1064) and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1), the Court below should have dismissed the ejectment application, directing the respondent to seek his remedy by filing a suit for the recovery of the possession, rather than seeking the ejectment under the special law, which has the special application. Therefore, the appeal is allowed and the impugned judgment is set aside, with the result that the ejectment application filed by the respondent stands dismissed.