' MALIK SAEED EJAZ ,J.---Brief facts are that private respondent on 8-11-1995 filed an Ejectment petition against the petitioner, alleging that House No,91 ward No,6/ Muslim had been given to the petitioner on monthly rent of Rs,100 but he defaulted in payment of rent, did not pay the utility bills and that said premises was also required by the respondents for their own residential purposes.
The said ejection petition was resisted by the present petitioner by way of filing written reply, denying relationship of landlord and tenant between him and the respondents. After full trial, the learned Rent Controller vide order dated 22-5-1997 dismissed the said Ejectment Petition on the ground that respondents could not prove the relationship of landlord and tenant between them and the petitioner. However, on appeal filed by the respondents the learned Additional District Judge vide judgment dated 29-2-2000 reversed the findings of the learned Rent Controller, and as such A accepted the Ejectment Petition of the respondent. Hence, this writ petition.
2. Learned counsel for the petitioner submits that petitioner claiming himself to be co-sharer in the disputed premises agitated the matter which ultimately decided by the apex Court. This fact has not been disputed by learned counsel for the respondents. It is further contended that the respondents had failed to prove the alleged relationship of landlord and tenant, as such, the learned Rent Controller had rightly dismissed the Ejectment Petition, which order was wrongly upset in appeal through the impugned order.
3. On Court query, learned counsel for the respondent admits that during lengthy civil litigation between them and the petitioner, they never alleged the petitioner to be a tenant under them and for the first time through Ejectment Petition, the petitioner was shown to be their tenant, under the disputed premises. Learned counsel on the basis of "Muhammad Siddique v. Abdul Razzaq" (1998 SCM R 349) and "Abdul Hameed v. Abdul Rasheed" (1981 SCM R 527) contends that despite failure on the part of the respondents to prove relationship of landlord and tenant, the petitioner is to be considered as tenant by operation of law.
4. Heard. Record perused.
5. It is admitted position that not a single receipt for payment/receipt of the alleged rent was placed on the record by the respondents. Similarly, no rent deed has been alleged to have ever been executed in this regard and ejectment of the petitioner was sought on mere oral assertion that he was in possession and had been paying the rent. It is also admitted position that PTD of the alleged rented premises was issued in the name of Muhammad Islam and after his death his legal heirs which include respondents as well as wife of the petitioner, have become owners and similarly the present petitioner himself is also stated to be real brother of said Muhammad. Islam, and he is residing in the premises as member of the family. As such, there appears considerable force in the contention of the learned counsel for the petitioner that there does not exist any relationship of landlord and tenant between the parties. The contention of learned counsel for the respondents that petitioner would become tenant by operation of law, cannot be given weight for the reason that throughout the civil litigation right from 1986 till decision of the apex Court in the year 2004, the respondents never alleged the petitioner as a tenant under them, whereas, tenancy could neither be created nor claimed merely on the basis of someone's possession over the property. No doubt a tenant is always liable to be ejected if he denies his relations as tenant with the landlord, but primarily it is duty of the landlord to establish his status first by proving the existence of tenancy and if no such relations had ever existed then no ejectment petition is maintainable under the Rent Restriction Ordinance, meaning thereby the landlord cannot absolve himself of his liability to prove his status as landlord. Similarly, the landlord shall be obligated to prove the creation of tenancy with the tenant against whom he intends to initiate ejectment proceedings.
6. In the instant case the petitioner is admittedly real brother of respondent's husband and he is residing in the alleged rented premises since long as a family member of the respondent and prior to the institution of the ejectment petitioner he claimed himself to be the co-sharer of the house on the basis of a claim of his father through which the alleged rented premises was got allotted by his, real brother in his own name. However, his claim was not accepted up to apex Court and the civil litigation in this regard came to an end. In the whole civil litigation starting from 1986 till 2004, the present respondent had never declared the petitioner as her tenant. The learned counsel on Court query, admitted this fact. The crux of the matter is that respondent instead of adopting civil remedy to eject the petitioner from his unlawful possession, opted wrong forum of Rent Controller. As such, her application was rightly rejected by the learned Rent Controller, whereas, the lower appellate Court, passed the impugned order by ignoring the above factual as well as legal aspect of the case. As such, this writ petition is allowed, the impugned judgment of learned Additional District Judge is set aside and that of the learned Rent Controller is restored.