Respondent No. 3, widower of pre-deceased daughter, namely Mst. Shabnam, of Shahzada Muhammad Tarif deceased, who died on 22.12.2002, claiming to be the sole surviving legal heir of Shahzada Muhammad Tarif, his erstwhile father in law, filed the ejectment petition before the Rent Controller, seeking eviction of the petitioner from the questioned house on the grounds of default in the payment of rent from December, 2002 to January, 2004 and his personal need, asserting that the petitioner was tenant under the predecessor in interest of the respondent and now is tenant under him for a period of one year @ Rs. 10,000/- per month. The petitioner resisted the ejectment petition, inter alia, pleading that the respondent is neither legal heir of Shahzada Muhammad Tarif nor relationship of landlord and tenant exists between the parties. Out of the pleadings of the parties, following issues were framed:-- "Issues:.
1. Whether there exists relationship of landlord and tenant between the parties, if so, its effect ? OPA.
2. Relief'.
2. The respondent/ejectment petitioner appeared as AWI, and produced Hafiz Muhammad and Muhammad Mushtaq as AW2 and AW3. Certain documents were admitted in evidence as Ex.Al to Ex.A6. Contrarily, the petitioner appeared as RW1 and produced Abdul Razzaq and Miraj Din as RW2 and RW3. The learned Rent Controller, after hearing the parties decided Issue No. 1 in favour of Respondent No. 3 and passed the ejectment order against the petitioner vide order dated 21.9.2004. Petitioner's appeal against the said order was dismissed by the learned Addl. District Judge, vide judgment dated 22.2.2005, hence the present Constitutional petition.
3. Learned counsel for the petitioner contends that the onus of solitary issue was on the ejectment petitioner, but he could not produce any documentary evidence or sufficient oral evidence to prove the existence of relationship of landlord and tenant. Conversely, the learned counsel for the respondent, while supporting both the order/judgment, states that the respondent is the legal heir of Shahzada Muhammad Tarif, and the petitioner had been paying rent to Shahzada Muhammad Tarif and after his death, the petitioner was a tenant under the respondent, therefore, relationship of landlord and tenant exists between the parties.
4. I have heard the learned counsel and examined the available record. Admittedly, the onus to prove the solitary issue was on the ejectment petitioner to establish that the relationship of landlord and tenant exists between the parties. There cannot be any cavil to the proposition that a person claiming to be a "landlord" of a particular property had to prove through production of documentary or sufficient oral evidence that a particular person is his tenant. If such a person ables to adduce sufficient evidence to prove the said issue, then the other party is required to produce evidence in rebuttal. In the instant case, the ejectment petitioner has only produced postal receipts, copy of legal notice (mark-A) and a copy of sale deed (Ex-A6) in favour of Shahzada Muhammad Tarif. Besides the said documents, the respondent produced two witnesses and appeared as his own witness. The sale-deed does not prove that the respondent is even the owner of the questioned property, as it was executed in favour of Shahzada Muhammad Tarif, ex- father in law of the ejectment petitioner. Even if it be taken that the respondent is the owner of the house, the petitioner cannot succeed as he failed to prove the issue of relationship of landlord and tenant. The expressions "ownership" and "landlordship" convey different meanings under the provisions of Punjab Urban Rent Restrictions Ordinance, 1959, as a person may be the "owner" of the property in question, but he may not be the "landlord" for the purpose of relationship of landlord and tenant and it can be voice versa. In the instant case the respondent has not been able to prove that he is the owner of the property, as the sole document relied upon by the respondent shows that the sale-deed was executed in favour of Shahzada Muhammad Tarif. The respondent has failed to place on record any documentary evidence to show that the petitioner is his tenant.
As regards the oral evidence, the said stereotype evidence cannot be relied upon to non-suit the petitioner.
5. Admittedly, the respondent is not the legal heir of Shahzada Muhammad Tarif, with whose daughter, the ejectment -petitioner was married. Additionally, Mst. Shabnam pre-deceased her father, the property was never transferred in favour of Mst. Shabnam and therefore the respondent cannot claim the property on the grot.nd that Mst. Shabnam was his wife. The respondent was not able to prove the existence of relationship of landlord and tenant between the parties through the documentary and oral Evidence on record, therefore, the onus of Issue No. 1 did not shift to the petitioner to rebut the respondent's evidence. Despite that the petitioner produced certain witnesses. The respondent could not bring on record any evidence to show that the petitioner either remained tenant under Shahzada Muhammad Tarif or under him, as pleaded in the ejectment petition. No cogent proof of payment of rent by the petitioner has been placed on record. Sketchy statements of respondent's witnesses, to the, effect that the rent was paid in their presence, are neither believable nor reliable to hold that the respondent is either "landlord" or "owner" and to pass the ejectment order. Both the Courts have erroneously relied upon the statements of these witnesses. Their statements show that they are friends of the ejectment petitioner and are untrustworthy. Both the Courts have proceeded to pass impugned order/judgment in complete oblivion of the fact that onus of proof was solely on the ejectment petitioner to prove the issue and the respondent was to produce his evidence only in rebuttal.
When the respondent failed to discharge the onus of the solitary issue, the evidence of the petitioner becomes irrelevant.
6. In the above perspective, I have examined both the judgment/order and find that those are not sustainable in law, inasmuch as the evidence of the parties was not properly appreciated, it was misread and wrongly relied upon, and thus I am inclined to set aside both the judgement/order.
7. 'Upshot of the above discussion is that the present petition is allowed and the impugned judgment dated 22.2.2005 and order dated 21.9.2004, passed by both the lower forums are declared to be illegal, without lawful authority and having no legal effect, and thus are set aside.
Resultantly, the ejectment petition, filed by Respondent No. 3 stands dismissed.
7. No order as to costs.