' SH. AZMAT SAEED, J.---SAO 3 of 2010 arises from the appellate judgment dated 11-1-2010 through which the learned Additional District Judge Gujranwala accepted the appeal of respondent Ghulam Dastgir against the order dated 26-1-2007 of the Rent Controller Guj ranwal a .
2. Precisely the relevant facts for the adjudication of the lis at hand are that respondent filed an ejectment petition under section 13 of the Urban Rent Restriction Ordinance 1959 against the appellant with regard to the premises in question. The appellant entered appearance and contested the suit by inter alia denying the relationship of landlord and tenant. Upon divergent pleadings of the parties, issues were framed, and both parties led their respective evidence thereon, whereafter the Rent Controller seized of the lis vide order dated 26-1-2007 dismissed the ejectment petition holding that no relationship of landlord and tenant existed inter se the parties.
Being aggrieved, respondent filed the appeal which was accepted vide appellate order of the learned Additional District Judge Gujranwala dated 11-9-2008, which was challenged before this Court through SAO No,95 of 2008 whereby the impugned order dated 11-9-2008 was set aside and the case was remanded to the first appellate court. And in post remand proceedings, after hearing the parties, the appeal was accepted through the appellate impugned order dated 11-1-2010.
Hence, this SAO.
3. It is contended by the learned counsel for the appellant that there was no relationship inter se the parties as has been correctly held by the learned Rent Controller. Adds that in fact in view of the admitted documents on record it is clear and obvious that the appellant is in occupation of the property as a mortgagee. In this behalf he has referred to Exh.A8, and has contended that the learned Judge of the first appellate court has erred in law by relying upon the oral evidence in presence of documentary evidence.
4. Learned counsel for the respondent has controverted the contentions of the learned counsel for the appellant by contending that the appellant was the tenant as is obvious from Exh.A7 and therefore, has retained the same status. Subsequent document Exh.A8 does not change the nature of the status of the appellant nor absolves him from the payment of rent. And the mere fact that the appellant has filed a civil suit does not in any manner effect the jurisdiction of the Rent Controller.
5. Heard. Record perused. The premises in question consists of a shop and a godown. It is an admitted fact between the parties that at one point of time the shop in question was rented out to the appellant by the respondent, and in this behalf Exh.A7 was scribed. While it is the case of the appellant that he surrendered the possession to the respondent and subsequently acquired the possession of the shop and the godown as a mortgagee in terms of Exh.A8. On the other hand it is the case of the respondent that possession continued without any interruption. However, the execution of Exh.A8 is not denied. In the facts and circumstances, there are two documents on the record Exh.A7 which is a rent deed, while the latter document is Exh.A8. It is equally clear that Exh.A7 and A8 do not pertain to identical property as Exh.A8 includes godown in addition to shop. Exh.A8 and its contents are admitted inter se the parties with neither its execution nor its contents denied by the respondent. Perusal of Exh.A8 reveals that loan had been advanced by the appellant to the respondent and to secure the same the possession of the premises in dispute had been given with a covenant that upon repayment of loan, the appellant will hand over the possession of the property to the respondent. There is a specific recital that possession had been handed over under the said document Exh.P8. There is no ambiguity in the documents which speak for itself. Exh.A8 contains all the ingredients of a mortgage as defined by section 52 of the Transfer of Property Act.
In the above circumstances is clear that the appellant has the possession as a mortgagee in terms of Exh.A8 and not as a tenant, therefore, the Rent Controller rightly held that relationship of landlord and tenant did not exist inter se the parties. The appellate impugned dated 11-1-2010 order impugned herein does not reflect judicial application of mind, correct appreciation evidence on record and the law applicable thereto, hence, is declared not sustainable in law and accordingly set aside with the result that order of the Rent Controller dated 20-1-2007 is restored. In terms indicated ibid.