' MALIK SAEED EJAZ, J.--- Through this second appeal, Syed Nawab Shah/appellant has challenged order dated 29-11-2006 passed by the learned Rent Controller, D.G.Khan, whereby ejectment petition filed by Mst. Farheema Altaf/respondent for vacation of shop was accepted and judgment dated 23-1-2007 passed by the learned Additional District Judge, D.G. Khan, whereby the appeal filed by Syed Nawab Shah/appellant against the order of learned Rent Controller was dismissed.
2. Brief facts of the case, according to ejectment petition filed by petitioner/respondent Mst.
Farheema Altaf, are that she purchased the disputed shop from her sister Mst. Kaneezan Rehman on 29-1-2004 and informed that fact to the defendant Syed Nawab Shah through notice. Further alleged that through oral' agreement the monthly rent was fixed as Rs,3000. Prior to this sale a rent agreement had been executed between sister of the petitioner and the respondent. It is also alleged that from the month of October, 2004 onward the respondent had committed default in payment of rent; that shop in question was in a dilapidated condition and the respondent wanted to re-construct the same, therefore, she needed the property for the purpose of its reconstruction as well as for personal need. Hence the respondent filed ejectment petition, which was accepted and the appeal preferred by the appellant was also dismissed, hence this SAO.
3. Arguments from both the sides have been heard at length and perused.
4. The property in question was owned by Mst. Kaneezan Rehman, who sold the same to her real sister when tenancy was in existence under rent deed, which was executed for a period of five years. Admittedly, no notice under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was given by the purchaser/present landlady to the appellant against whom both the courts below have passed ejectment order. At the first round, the Rent Controller decided three issues against him, which are reproduced hereunder: ISSUES:
(1) Whether the relationship of landlord and tenant exists between the parties? OPA
(2) Whether the respondent is wilful defaulter from the previous six months? OPA
(3) Whether the petitioner bona fide in personal need of suit property? OPA ' All the issues were decided against the appellant, who went in appeal before the learned District Judge, who set aside the order of the learned Rent Controller to the extent of latter two issues i.e, relating to default in payment of rent and personal need but order passed by the Rent Controller was sustained to the extent of issue No, 1 . The appellate Court while passing the impugned order observed that since the appellant has denied the relationship of landlady; as such she is entitled for ejectment.
5. The crucial point which need to be considered is relating to issue No,1 which required the landlady/respondent to prove the existence of tenancy between the parties qua the demised premises. As per averments in the ejectment petition, Mst. Kaneezan Rahman, the sister of the respondent was owner/landlady of the suit property and the tenancy between her and the appellant was created through, lease agreement dated 19-7-2004 (Exh.R-1/A) for a period of five years and during subsistence of this lease agreement, the respondent alleged that she had purchased the said property from her sister through agreement to sell on 29-1-2004 and on the basis of which new tenancy through an oral agreement was allegedly created between the respondent and the appellant and monthly rent was settled from Rs,2,700 to Rs,3,000 which tenancy was to commence w.e.f, 29-1-2004.
6. At this juncture, it is significant to note that had any agreement to sell has been executed on 29- 1-2004 as alleged by the respondent, the lease agreement (Exh.R1/A) dated 19-7-2004 regarding the same premises could not have been executed between Mst. Kaneezan Rehman (ex-landlady) and the appellant for a period of five years. The appellant rightly denied the tenancy as alleged by the respondent in her ejectment petition as no tenancy could have been created between the respondent and the appellant as the respondent had failed to prove the same. She did not either produced/tender any agreement to sell dated B 29-1-2004 for establishing her contention that she had purchased the demised premises from her sister namely Mst. Kaneezan Rehman and she created new tenancy through an oral agreement. On the other hand rent agreement Exh.R-1/A clearly shows that till 19-7-2004 Mst. Kaneezan Rehman (ex-landlady) was showing herself to be the owner of the demised premises when she executed the said document in favour of the appellant. Similarly, it is not undeniable that respondent purchased the demised premises under the registered sale-deed (Exh.R-9) dated 29-11-2004 and no notice for the change of ownership was given to the appellant by the respondent even after the execution of sale-deed. Thus, the respondent was neither empowered to claim herself as owner of the demised premises w.e.f, 29-1- 2004 nor had right to claim the appellant as her tenant on the basis of B alleged agreement to sell dated 29-1-2004. Admittedly, she did not rely upon the tenancy existing between Mst. Kaneezan Rehman (ex-landlady) and the appellant and all the rights ensuing therefrom and instead dubiously designed a new tenancy to make her claim plausible. There is no cavil with the proposition that the question of tenancy carries certain advantages and must be proved by evidence on a very high order and it cannot be proved by mere oral evidence. Mere assertion of respondent as regards alleged new oral tenancy when she had no title cannot be accepted to establish the same. The respondent has neither produced nor proved the execution of agreement to sell in her favour nor proved the fact that the alleged agreement clothed her with right to recover the rent and seek eviction of the tenant. There is absolutely, no other evidence to prove the said tenancy or recovery of any rent thereunder and, as such, I am constrained to hold that the respondent has miserably failed to establish her contention as regards oral tenancy allegedly incepted on 29-1-2004 and the appellant had rightly denied the relationship of landlord and tenant under the alleged tenancy.
7. It is settled law that the party can only succeed according to what was alleged E and proved.
Reference in this respect is made in 2005 SCJ 474(sic) and 1980 CLC 2056. As such the appellant has rightly denied his relationship as tenant with the respondent on the basis of oral tenancy as alleged in the ejectment petition.
'Subsequently, when the appellant was aware of the execution of the sale-deed, he admitted the respondent as landlady under the tenancy agreement executed between the previous owner i.e, Exh.R-1/A and the rent deposited by the appellant under the term of existing rent agreement was also withdrawn by the respondent after completing the round of litigation up to this court in Writ Petition No,7032/05 titled Mst. Farheema Altaf v. Rent Controller and the appellant.
8. It is also an admitted fact that finding of Rent Controller against issues Nos.2 and 3 were reversed by the first appellate court who while passing an order dated 23-1-2007 observed that appellant was neither wilful defaulter nor the demised premises was required by the respondent for her personal need and after knowing this fact, respondent did not file any appeal against such findings. As such, she had accepted the same. Now question which also needs to be decided is that whether mere denial of relationship of landlord and tenant is a ground for ejectment when the tenant conunits no default for the payment of rent. From the bare reading of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 I am of the considered view that mere denial of relationship of landlord and tenant is no ground for an ejectment and whenever ejectment order is passed on the ground of denial of such relationship, the courts firstly declare the tenant as defaulter and the tenant normally claims to be the owner of the demised premises and does not pay the rent against such plea. But, in the instant case, the appellant has not been declared defaulter and the ground for personal need of the respondent was not accepted by the first appellate court and respondent did not file the appeal against the findings of both the issues i.e, issues No,2 and 3. As such, passing an order for ejectment of the appellant merely on the basis of issue No,1 is illegal and not warranted by law. In my G view, mere denial of relationship between the landlord and tenant is not at all the ground for an ejectment unless and until the tenant commits default in payment of rent.
9. In the instant case, it is also observed that the appellant denied the relationship as tenant with the respondent on the basis of which she claimed a rent at the rate of Rs,3000 per month on the basis of oral tenancy as alleged by her in the ejectment petition which tenancy agreement could not be proved by the respondent and a the later stage the respondent agreed to receive the rent from the appellant on the basis of existing written rent agreement which was executed in between ex-landlady and the appellant. Similarly, the appellant also admitted the respondent as landlady at later stage when she drew the rent already deposited by the appellant in the court.
10. in view of the above discussion, fact and circumstances, I am not inclined to accept the finding recorded on issue No,1 by both the learned courts below and accordingly the same are reversed and set aside and the said issue is decided in negative.
11. Consequent upon the above discussion, this second appeal is accepted and the ejectment petition is dismissed leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.