' ALI AKBAR QUERSHI, J.---This first appeal assails the order, dated 20-5-2000 passed by the learned Additional Rent Controller, Lahore Cantt whereby the ejectment petition filed by the respondent was accepted.
2. The synopsis of the facts of instant appeal is, that the respondents instituted an ejectment petition under section 17 of the Cantonments Rent Restriction Act, 1963 to evict the appellants from the property in question on the ground of default and personal need.
3. The application was resisted vehemently by the appellants who while filing the reply, denied the relationship of landlord and tenant on the ground that the property in question was owned by his father namely S Muhammad Yousaf and the rent of the property has never been paid to the respondents. The learned Rent Controller, out of divergent pleadings of the parties, framed the following issue:--
(1) Whether relationship of landlord and tenant exists between the parties?
4. Both the parties led their respective evidence in support of their contentions. The learned Rent Controller finally allowed the ejectment petition and directed the appellant, to hand over the vacant possession to the respondents, hence this first appeal.
5. Learned counsel for the appellant submitted that it was specifically pleaded by the appellants that the respondents have no concern whatsoever with the title of the property and further, the father of the appellant never remained tenant under the landlord ship of the respondent but this aspect of the pleadings has totally been ignored. Next contended, that the appellant through ocular as well as documentary evidence successfully proved that the property in question is inherited by the appellants from their father namely deceased Muhammad Yousaf, who was owner of the property but the learned Rent Controller while dictating the judgment, has failed to take into consideration the material available on the file. Also contended, that the respondents have failed to prove the title of the property in the name of their predecessor-in-interest through any documentary evidence, therefore, the order impugned herein, is perverse and unsustainable in law.
Reliance is placed on Muhammad Naeem v. Abdul Wahid and others (1999 MLD 1342), Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1), Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064), Barkat Ali and another v. Additional District Judge, Lahore and others (1994 MLD 1920), Haji Muhammad Ramzan v. Mian Jamil Shah (PLD 1967 Peshawar 380), Umar Hayat Khan v. Inayatullah Butt and others (1994 SCMR 572) and Sharif Hussain and others v. Hay. Pir Bakhsh and others (1983 SCMR 857).
6. Conversely, Mr. Shahid Mubeen, advocate appeared on behalf of the respondent and submitted that the learned Rent Controller after careful examination of the record has reached to a.
Conclusion, that the property is not owned by the appellants and the predecessor-in-interest of the respondents was owner of the property, therefore, the order, impugned herein, is perfectly in accordance with law. Next contended, that the record of the Cantonment Board pertaining to the suit property is sufficient to prove the title of the respondent and further, the appellant has failed to produce or bring on record any document to prove the title of the property, therefore, the learned Rent Controller has not committed any illegality to pass the order. Reliance is placed on Samiullah v. Mian Muhammad Salim, District Judge, Rawalpindi and others (PLD 1966 (W.P.) Lahore 572), Roshan Din v. S.M. Bardruddin (PLD 1969 Karachi 546) and Abdul Qayyum Ansari v. Salahuddin Qureshi (PLD 1974 Karachi 10).
7. Heard.
8. Upon the perusal of the record, it is found that the respondents filed an ejectment petition on the ground that the property was owned by their predecessor-in-interest namely Ghulam Rasool; that the property was mutated in the record of the Lahore Cantonment Board in the name of Ghluam Rasool; that the father of the appellants was tenant in the suit property; that the appellant paid the rent @ Rs,40 per month till 1-1-1995 but thereafter did not pay on the ground that civil litigation is pending between the parties and the property in question is required for personal use and occupation.
9. The record particularly the documentary evidence placed on the record by both the parties was examined with the able assistance of the learned counsel for the parties wherefrom it appeared that, both the parties have not brought on record the title document of the property. The evidence already available on the file only shows that in the record of the Cantonment Board, earlier the property was owned by the predecessor-in-interest of the appellants and thereafter the same was transferred in the name of the predecessor-in-interest (Ghulam Rasool) of the respondents. On the other hand, the utility connections installed at the premises are in the name of the father of the appellants therefore, both the parties on the basis of the aforesaid documentary evidence claimed their title. On behalf of the respondent, only one witness Wasim Ahmad appeared as A.W.1 and no other witness was produced by the respondents in support of their contentions. It is notable that the respondents have stated in the ejectment petition, that the appellants stopped to pay the monthly rent since 1-1-1995 whereas the ejectment petition was filed in the year, 1998 and between the said period, no effort provided in the law was made by the respondent to recover the rent.
Similar is the position of the appellant who produced only R.W.1. And, no other witness was brought in support of his claim.
10. It is also pertinent to- mention here that both the parties did not summon any witness from the office of the Cantonment Board in support of their contentions. It is not denied that the property in question is controlled and administered by the Cantonment Board, Lahore, therefore, it can safely be held, that the documentary evidence pertaining to the record of the Cantonment Board and other departments have not been proved in accordance with law and the principle laid down by the Hon'ble Supreme Court of Pakistan in a judgment reported as Khan Muhammad Yousuf Khan Khattak v. S. M. Ayiub and 2 others (PLD 1973 SC 160). The relevant portion is at page 164 which reads as under:--
(e) Evidence Act (1 of 1872), sections 47, 67 and 145 and Civil Procedure Code (V of 1908), O.XIII, R.4-- -Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwritings of persons alleged to have signed or written them, even if such documents are brought on record and exhibited without objection.
11. The learned Rent Controller although on the basis of the pleadings of the parties, framed an issue regarding the relationship of landlord and tenant and also recorded evidence of the parties but as appears from the findings of the order, impugned herein, failed to read, discuss and interpret the documentary evidence available on the file. The learned Rent Controller being the trial Court was under legal obligation to discuss each and every 'document brought on record by the parties to solve the controversy of relationship instead of simply referring the said documents. The learned Rent Controller has also failed to render any reasoning or to record any finding regarding the title of the property. Since the learned Rent Controller framed a specific issue of relationship of landlord and tenant, therefore, he was required to form and record definite findings on this issue, which is missing in this case. Thus, it can safely be observed, that the ,findings, impugned herein, are not based on true appreciation of the record, therefore, the learned Rent Controller have failed to decide the issue in accordance with law. Reliance is placed on Muhammad Naeem v. Abdul Wahid and others (1999 MLD 1342), Abdul Hameed v. Muhammad Iqbal and another (2002 YLR 2772), Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064). An observation which is squarely applicable on the instant case recorded in Abdul Majeed represented by Legal Heirs v.
Lufti Siddiqui and 2 others (1987 CLC 455) is reproduced:--
(a) Cantonments Rent Restriction Act (XI of 1963)--- ----Sections 17 and 24---Nullity of original order---Effect on subsequent order---If original order of Court was nullity in law, all edifice built on such order, would also fall and could not be sustained---Non-speaking and very short order on preliminary issue passed by Rent Controller without reasoning, without application of his mind and without taking into consideration evidence and pleas of parties before him, being no order at all in eyes of law, subsequent orders passed by Rent Controller as well as Appellate Courts below based on such basically illegal order, would also not be sustained in circumstances.
12. For the foregoing reasons and observations made on the basis of the record, it deems appropriate to remit the matter to the learned E Additional Rent Controller, Lahore Cantt to decide afresh after providing fair opportunities to the parties to prove their contentions.
13. Resultantly, this appeal is allowed; the order, dated 20-5-2000 passed by the learnedly Additional Rent Controller, Lahore Cantt. Is set aside; the case is remanded to the learned Additional Rent Controller to decide the same afresh in the light of the observations made above.
14. Since, it is an old matter, therefore, the learned Additional Rent Controller is directed to complete the proceedings positively within a period of two months and no unnecessary adjournments shall be given to the parties. In order to save the time, both the parties are directed to appear before the learned Additional Rent Controller on 15-7-2009. No notice parvi shall be issued for appearance of the parties and in case of non-appearance, the learned Rent Controller would be free to decide the matter in accordance with law.