' NADEEM AZHAR SIDDIQI, J.---Petitioner is aggrieved by the judgment, dated 9-9-2008 passed by the learned First Additional District Judge, Karachi Central passed in F.R.A. No,144 of 2007, whereby he maintained the order of ejectment passed by the learned First Senior Civil Judge, Karachi Central passed in Rent Case No,435 of 2006 filed by the Respondent No,1 against the petitioner.
2. Brief facts of the case are that respondent No,1 filed Rent Case No,435 of 2006 wherein she stated that she is the lawful and exclusive owner House No,R-594, Sector 11-C/1, North Karachi, filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 against the petitioner on the ground of default in payment of rent. The petitioner resisted by the same by filing written statement wherein he denied the existence of relationship of landlord and tenant between the parties. The learned Rent Controller, after recording evidence and hearing the parties, allowed the rent case vide order, dated 30-5-2007. The petitioner filed F.R.A, No, 144 of 2007 challenging the above Order, which was dismissed and the order of eviction of the petitioner was maintained by the learned appellate Court. Hence this petition.
3. I have heard the learned counsel for the parties and have gone through the record and the case-law cited before me.
4. Mr. S.M. Salam Kazmi, learned counsel for the petitioner, mainly contended that the learned Rent Controller as well as the learned Appellate Court travelled beyond the jurisdiction vested in them by deciding the question of existence of relationship of landlord and tenant between the parties as the same falls within the exclusive domain of a civil Court. The learned counsel submitted that the sale-deed and other documents on the basis of which the respondent No,1 is claiming title over the said property are prepared, manufactured and forged documents for cancellation whereof the petitioner has filed a suit which is pending adjudication. He submitted that the respondent No,1 is claiming the said property on the basis of a gift deed executed in her favour by her father Yousuf Hussain who allegedly purchased the same from the alleged original owner of the said property, namely, Raza Muhammad Khan, but the said property was never purchased by said Yousuf Hussain, father of the respondent No,1 from the said Raza Muhammad Khan, who is a fictitious person. He submits that the said property was actually allotted to the petitioner way back on 6-5- 1977. He also submitted that the father of present respondent No,1, namely, Yousuf Hussain, filed Rent Case No,71 of 2005 on the ground of default in payment, personal bona fide need and illegal additions/alterations, which was subsequently withdrawn as he was sure that his misdeeds would come to light. He submitted that since the petitioner was not inducted into the said premises by any one the transfer of property has no relevancy as the petitioner is living of his own in the said property. Finally he submitted that neither there is any tenancy agreement between parties nor any documentary evidence has been produced in this regard to establish the relationship of landlord and tenant between the parties and prayed that the petition may be allowed and the order/judgment of the two Courts below may be set aside and the rent case may be dismissed.
5. On the other hand, Mr. Khursheed Ahmed Qureshi, learned counsel for the respondent No,1/landlady, submitted that there are concurrent findings of fact by the two Courts below and are in conformity with the evidence on record. He submitted that in the year, 2002 the said property was purchased by the father of Respondent No,1 from Raza Muhammad Khan and was paying property tax in respect thereof as well as the electric meter and gas meter were also in his name.
He submitted that while all the title documents produced by the respondent No,1 are duly registered with the relevant Registrar office, the petitioner is only relying on a purported Allotment Order and even that document was not produced before the trial Court. He also submitted that the petitioner, taking advantage of an oral tenancy with the previous owner of the said property, wants to usurp the same. He stated that concurrent findings of facts cannot be overturned in constitutional jurisdiction of this Court. He prayed for dismissal of the petition. In support of his contentions/submissions the learned counsel relied on the following reported judgments:--
(1) Abdul Hameed v. Abdul Rasheed (1981 SCM R 527),
(2) Abdul Razzak v. Muhammad Yasin (1993 M LD 2240),
(3) Fariduddin and another v. Mehboob Ali (1994 SCM R 1485),
(4) Rahmat Khan v. Mst. Hamida (1993 SCM R 1685),
(5) Amir Ahmed v. Irshad Ahmed (1993 CLC 1074), and
(6) Baboo Din v. Nasroo (1995 M LD 1460)
6. There is no cavil with the proposition that a dispute with regard to the ownership and title of a property cannot be decided by the Rent Controller and the same exclusively falls within the jurisdiction of the civil Courts. However, this does not mean that mere denial of relationship of landlord and tenant would result in automatic dismissal of the ejectment application. An ejectment application can only be dismissed on this ground if from the averments made and the documents filed by the parties in the rent case it cannot be ascertained as to whether relationship of landlord and tenant exists between the parties or not.
7. In the, case in hand the respondent No,1 filed Rent Case No,435 of 2006, para. 1 whereof reads as under:-- "That the applicant (respondent No,1) above named has been the lawful and exclusive owner/landlady of the Double Storeyed House No,R-594, measuring 120 sq. Yards, in North Karachi Township, Karachi, having acquired the same through valid Title Deed i,e, Deed of Declaration/Confirmation of Oral Gift of Immoveable Property bearing Registered No,1065, Book No,1, dated 24th February, 2006 and M.F. Roll No,U-7863/3266 of Photo Registrar Karachi, dated 29th March, 2006 executed in favour of the applicant by her father Mr. Yousuf Hussain son of Abid before the concerned Sub-Registrar New Karachi Town, Karachi which property subsequently was mutated in favour of applicant vide Mutation Order, dated 31st May, 2006. And in reply to the contents of the above para. 1 of ejectment application, the petitioner in para.(sic) of the written statement stated as under:-- "That the contents of Para-1 of the main application are vehemently denied. It is respectfully submitted that the applicant in connivance with her husband has manufactured the documents of title. It is respectfully submitted that Yousuf Hussain, who, the present applicant claims to be her father; according to the contents of the main application was very seriously ill and had lost his memory."
8. The above two paragraphs, seen in juxtaposition, clearly show that while the respondent No,1 clearly and in unequivocal terms claims to be the owner of the said property and spells out the manner and method in which she became owner thereof and refers to all the legal and registered title deeds by virtue whereof she has become the owner of the said property. As against this, the petitioner has simply denied the same and, instead of claiming himself to be the owner of the said property and to give the chronological order of the manner in which he acquired the same along with copies of such documents, has simply made an irrelevant statement regarding the ill-health of the father of the respondent No, 1 . Thus, indirectly, he has admitted that the said "Yousuf Hussain, was the owner of the said property from whom the respondent No,1 acquired the same through a registered gift deed. Strangely enough, the petitioner has not filed any title document in respect of the said property before the learned Rent Controller and has thought it prudent to rely on an electricity bill only which, admittedly, is not a title document. Although he had attempted to improve his case by filing a copy of the purported Allotment Order issued by Messrs Power Construction Company, which again, is not a title document. Even if this allotment order was a document issued by a government agency like KDA, CDGK, etc., it would have been given due consideration but an allotment order issued by a private party, without the subsequent documents like payments made to the construction company, lease deed/sale-deed, etc., the same is of no help to the petitioner.
9. It is not the case of the petitioner that this is a case of double allotment where the same plot has been allotted to two persons. In that case the petitioner should have produced receipts of payments made to the said Construction Company and other related documents. On the basis of a single document and that too an allotment order purportedly issued by a private construction company, it cannot be said that the petitioner is the owner of the said property. The petitioner has failed to produce any lease deed, registered sale-deed or any other such document to show that at least he has a claim over the property which requires consideration.
10. So far as the filing and subsequent withdrawal of the rent case by the father of the present respondent No,1 is concerned, there is no bar to the same. It is by now well settled that each party to a litigation has to succeed on the strength of its own case and not on the weakness in the case of the other party. If the petitioner claims that he is the owner of the said property he was bound to produce some cogent documentary evidence to show that he has some valid and subsisting legal right in the said property, which he has miserably failed to do.
11. The constitutional jurisdiction of this Court can be invoked if it is shown that the order is perverse and suffers from some illegality and irregularity. The jurisdiction cannot be used as a substitute of second appeal. Nothing has been demonstrated to this effect.
12. The upshot of the above discussion is that this petition is dismissed and the orders of the two Courts below are maintained. The petitioner is directed to vacate the rented premises and hand over its peaceful vacant possession to the respondent No,1 within one month of the date of this judgment.