' ATTAULLAH KHAN, J.---The petitioners through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, have prayed to declare the Judgment and Decree dated 12-12- 2005 passed by District Judge, Bannu and Judgment and Decree dated 16-6-2005 passed by learned Rent Controller, Bannu respectively, as illegal and without lawful authority.
2. The background is that the petitioners filed an ejectment petition against the respondents Nos.1 and 2 under section 13 of the Rent Restriction Ordinance, 1959 for the ejectment of the respondent No,1 from the suit shop on the ground of personal need and default of payment of rent. According to the petition, the petitioners are owners on the basis of inheritance mutation No,164 dated 29-3- 1996 to extent of 2-1/2 Sarsai per petitioner. It is alleged in the petition that the respondent No,1 is tenant on monthly payment of rent Rs,4,000 and since November, 2001 respondent No,1 remained defaulter. It is also alleged that the disputed shop is required by them for personal need. They sought for ejectment of respondent No,1 on the basis of personal need and default.
3. The petition was contested by the respondents by filing their written reply. In the written reply respondent No,2 has taken the plea that he is co-owner in the suit property and no relation of tenant and landlord exists between them. On this the trial Court framed the following preliminary issues:--
(1) Whether the relationship of landlord and tenant exits between the parties?
(2) Relief.
4. After recording evidence, the learned trial Court answered issue No,1 in negative and the petition was accordingly rejected vide order dated 16-6-2005.
5. The said judgment was challenged in appeal before learned District Judge, Bannu, who vide Judgment dated 12-12-2005, has dismissed the same.
6. Learned counsel for both the parties heard and record on file perused. In the light of which our discussion is as under.
7. It is contended by learned counsel for the petitioners that the findings of both the Courts below are void of legal sanctity and unlawful because relation between the parties tenant and landlord exists and both the Courts have reached to a wrong conclusion that the respondent No,2 has become co-owner in the suit property and no such relation exists between them.
8. On the other hand, learned counsel for the opposite party argued that one of the respondents after purchase of share in the disputed shop is co-owner and being so his relationship between the parties is not that of tenant.
9. The moot question in this case is that whether the respondent No,2 is co-owner and if he is accepted as such whether he remains tenant or not.
10. Record further reveals that originally the petitioners sued respondent No,1 under the Rent Restriction Ordinance, 1959 for ejectment. It is further disclosed that during the course of proceedings respondent No,2, namely, Rafiullah Khan applied for impleadment in the trial Court on basis of his co-ownership as he allegedly purchased share through registered deed No,167/1, dated 22-3-2002 vide order dated 11-9-2004. The learned trial Court allowed the application of respondent No,2 and made him as respondent No,2 in the petition and then the case was fixed for further proceedings. Record further reveals that on 13-10-2004, the trial Court allowed the petitioner for amendment in the petition and amended petition was filed, showing the respondent No,2 as party in the panel of respondents.
11. The Judgment of the learned trial Court dated 16-5-2005 reveals that the Court has decided the issue of title of respondent No,2 relating to a portion of suit property. After holding so the learned trial Court is of the opinion that: "When we come to the question of status between the parties it is important that the respondent No,2 become owner in the disputed shop through registered deed and he has given possession and his real brother respondent No,1, is in possession of the shop. As it is well-settled law that co- owner cannot be ejected unless partition is made."
12. On the above findings the Court held that the relationship of landlord and tenant does not exist.
In this case two facts emerged. One is regarding title and the other is regarding tenancy of respondent No,2. As far as title of respondent No,2 it relates to a portion of suit property. In this case the dispute was regarding ejectment of the respondent No,1 from the disputed shop and not regarding title nor it could issue because the matter in hand is under Rent Restriction Ordinance, 1959 which purely relates to tenancy. Legally Rent Controller has no power to decide the title. So the findings of the learned trial Court that respondent No,2 has become co-owner in the disputed shop and he cannot be ejected unless partition took place, is not within jurisdiction of Rent Controller because as stated above the question of title is not within the jurisdiction of Rent Controller under Rent Restriction Ordinance, 1959. Secondly, this finding is conflicting with the plea taken by the respondent No,1 in his written reply and in the evidence recorded in that Court.
13. Para. 4 of the written reply discloses that the respondent No,1 has paid Rs,2366 to the petitioners and since January, 2000 he is in possession of the suit property as mortgagee. In this para. Respondent No,1 has admitted his tenancy under the petitioners and also payment of rent. In the statement before the Court as D.W.4 he has also admitted that he obtained the shop on rent. In this way the learned trial Court has confused the tenancy of respondent No,1 and the title of respondent No,2 in rent case filed under section 13 of the Rent Restriction Ordinance, 1959, which is not allowed by law.
14. Consequently, we hold that both the impugned judgments are not in accordance with the relevant law, therefore, these are set aside by accepting the writ petition in hand and remand the case back to the learned Rent Controller, Bannu for decision afresh after hearing arguments of learned counsel for the parties, leaving the parties to bear their own cost.