1. ' ABDUL QADIR MENGAL, J.--- This civil revision under section 115, C.P.C. Has been preferred against the order dated 25-5-2009, passed by the learned Rent Controller/Judicial Magistrate, Zhob, whereby the learned Judicial Magistrate allowed the eviction application, directing the appellant and respondent No,2 to vacate the Shop No,G/210-A by handing over its possession within two months to respondent No,1 including paying the outstanding amount to respondent/ applicant from 2007 till the decision.
2. Brief facts leading to file present revision petition are that applicant/respondent No,1, Haji Abdullah Jan son of Sultan Muhammad, through agreement dated 16-2-2004 gave on rent a Shop No,G/210-A to respondent No,2, Muhammad Yousaf son of Zareef Khan, on monthly rent of Rs,5,500 (five thousand and five hundred) for a period of six (6) years, commencing from February, 2004 till February, 2010. It was held in that agreement that Muhammad Yousaf would not be ejected if he would pay rent of the shop regularly, however, if he on his own free-will leave the shop, then he would hand over the vacant possession to respondent No,1, Haji Abdullah Jan son of Haji Sultan.
2. ' The respondent No,2, Muhammad Yousaf son of Zareef Khan, on account of said agreement, took the possession of the shop being tenant of owner/landlord. However, in the year 2005, Muhammad Yousaf, respondent No,2, handed over the possession of the said Shop No,G/210-A situated at Jamia Masjid Road, Zhob, to petitioner Haji Hussain Khan and his son on account of closing his business to pay rent onwards to respondent No,1, Haji Abdullah Jan, the landlord, who carrying business out of the country at Dubai. The respondent No,1 on his returnl'ng demanded the vacant possession his shop whereupon, petitioner Haji Hussain Khan and his son denied the payment of rent to the owner claiming that they had purchased the rented shop from him the respondent No,1 Abdullah Jan the owner of the shop, as such, there is no any relationship between them as landlord and tenant.
3. ' Confronting the position, the respondent No,1, Haji Abdullah Jan, filed ejection application against respondent No,2, Muhammad. Yousaf son of Zareef Khan and petitioners Haji Hussain Khan and Najeebullah on the ground that his tenant, Muhammad Yousaf, illegally violated the provision of the tenancy agreement executed between them and he without informing him, sublet the Shop No,G/210-A.
4. ' After filing the ejection/application before the Rent Controller/Judicial Magistrate, Zhob, the learned trial Court proceeded in the matter and directed the respondents to file their rejoindeRs, The respondent No,2, Muhammad Yousaf, admitted the execution of the agreement and so as also stated that, actually, while on the closure of his business, petitioner, Haji Hussain Khan, contacted him and asked him that he having close relations with respondent No, 1/applicant, Haji Abdullah Jan, as such, on that he handed over the possession of shop in question, he regretted that he on account of misunderstanding did not get any permission from the landlord/applicant, Haji Abdullah Jan, while the petitioners/respondents Haji Hussain Khan and Najeebullah denied all the claim of respondents and got plea that they through the agreement dated 3-3-2004, had purchased the disputed shop from the respondent No,1/applicant, Haji Abdullah Jan.
5. ' The Rent Controller, after perusing the pleadings of the parties, framed the following issues for the disposal of the matter:---
(i) "Whether the applicant has rented out Shop No,C/210-A. Situated at Jamia Masjid Road, Zhob, to respondent No,1? (0.P.A)
(ii) Whether respondent No,1 had sublet the shop in question to respondent No,2 and 3? (0.P.A)
(iii) Whether respondents No, 2 and 3 had purchased the shop in question from applicant? (0.P.A)
(iv) Whether the instant application is maintainable in presence of sale agreement? (0.P.A)
(v) Relief? (0.P.A.)"
6. ' However, on the conclusion of the matter, the learned trial Court passed the impugned order, against which, the present appeal.
3. I have heard Mr. Abdul Ghani Mashwani, Advocate for petitioners, Mr. Samad Khan Mandokhail, Advocate, was heard for respondents. After hearing both sides, I have also perused the record of the case. It may be pointed out that at the trial, applicant/respondent No,1 has produced support of his contentions two (2) witnesses, AW-1, Zareef Khan son of Juma Khan and AW-2, Sultan Jan son of Multan, and then has recorded his own statement, whereas, Muhammad Yousaf son of Zareef Khan, respondent No,2, also recorded his statement admitting the claim of the applicant that he had got the shop through an agreement from the applicant, Haji Abdullah Jan and retained the shop with him for about eighteen (18) months, whereafter, he wound up his business. In the meanwhile, Haji Hussain Khan, petitioner, contacted him and told him that he had settled the affairs of the shop with the owner, and requested him to hand over him the shop, as onwards he would himself pay the rent. The respondents Nos.2 and 3, while denying the relationship with applicant/landlord as a tenant, have stated that they had purchased the Shop No,G/210-A from applicant/respondent No,1, but he, with conspiracy and collusion with the respondent, Muhammad Yousaf son. Of Zareef Khan, has filed present application for vacation. The petitioners produced two
(2) witnesses, Haji Galla Jan RW-1 and Doulat Khan RW-2, and then, recorded their statements in support of their contention.
4. Learned counsel for petitioners mainly contended that there is no relationship of the landlord and the, tenant between the parties, which in the present matter, question of the title was involved, as such, Rent Controller had no jurisdiction to entertain and decide the matter. In this connection, learned counsel relied on PLD 1973 Quetta I, which reads as follow: "(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13-Proceedings under S.13 can only be taken if relationship of landlord and tenant established-Landlord claiming party, in occupation of his property , to be .a trespasser and unauthorized occupant-Controller has no jurisdiction to pass order of eviction.
7. ' There can be no gainsaying the fact, that a Rent Controller can proceed with an application under section 13 of the Rent Restriction Ordinance, only if he finds that a relationship of landlord and tenant subsists. In case of a dispute between the parties on that score, he has to decide it as a preliminary issue. Where the case of the landlord all along was that the opposite party was an unauthorized occupant it was held that the Rent Controller had no jurisdiction in the Matter and the order passed by him was a nullity and liable to be set aside."
8. ' Learned counsel also produced in support of his contention 2004 SCMR 738 that if question of title is involved in any matter, then, such question is not to be determined by a Rent Controller. Learned counsel in this regard also relied upon YLR 2005 page 1383.
9. ' The counsel for respondents contended that actually, respondent No,2 Muhammad Yousaf in violation of the section 13(2)(ii) of the Balochistan Urban Rent Restriction Ordinance, 1959, has sublet the shop in question to petitioners without any written consent of the landlord, as such, on account of the same, he is liable to hand over the possession of the shop in question along with the outstanding amount, which he has not paid for that period. Learned counsel further argued that the so-called agreement is unregistered and unstamped, as such, same is inadmissible in evidence and the learned counsel again relied upon 2005 SCMR 843, wherein the honourable Supreme Court specifically has held, the relevant portion is reproduced herein below:--- "In the instant case no written consent of the landlord was either pleaded or proved. The landlord having not consented in writing can rightly challenge the subletting which, in the instant case, is rather admitted. On this score alone tenants were liable to he ejected and the learned High Court should have avoided the interference in the concurrent findings and that too under Article 199 of the Constitution."
10. ' After hearing the counsel for the parties and perusing the record of the case, admittedly, the applicant/respondent No,1, Haji Abdullah Jan, has successfully proved his relationship as a landlord with Muhammad Yousaf, from whom, the petitioners have got the Shop No,G/210-A being sublet.
11. The evidence shows that petitioners have failed to rebut the contention of respondent No,1, Haji Abdullah Jan, and respondent No,2, Muhammad Yousaf, that there was no relationship of landlord and tenant between them, so as petitioners also have failed to rebut the fact that they had not got the shop in question, from Muhammad Yousaf respondent No,2, on account of his subletting. The so-called agreement shows that same is fictitious document, perhaps, hurriedly prepared to desist the claim of respondent No,1 Haji Abdullah Jana The RW-I Haji Galla Khan, and RW-2 Daulat Khan only have stated that the petitioners had purchased the shop from applicant, Haji Abdullah Jan, in consideration of Rs,15,000 (Rupees fifteen lacs only) on 3-3-2004, out of which, Rs,10,000 (Rupees ten lacs) was paid in cash and it was agreed that on return of respondent No,1, Haji Abdullah Khan, from Dubai on 3-2-2005, further Rs,3,000,00 (Rupees three lacs) would also to be paid and it was also held the remaining Rs,2,000,00 (rupees two lacs) would be paid at the time of transfer or the mutation entry of the shop, however, none of the R. Ws.' have stated about the possession or transfer of the shop, as to where and when the same was taken place. This so-called agreement seems to have not been attested at all, nor same has been stamped properly. Again, the evidence of Haji Galla Khan, who is a marginal witness of the document, shows that he never visited Zhob in the month, in which, the agreement of sale stated to have been executed.
12. ' Anyhow, now, while adverting to the arguments of the learned counsel for petitioner, it may be pointed out that same having no force. While considering the circumstances of the present case, a Rent Controller is not bound in every case to dismiss the ejectment petition of landlord on the reason that title of landlord has been challenged or any party has claimed that there is no relationship of landlord and tenant. It is duty of the Rent Controller to properly evaluate material, which has come in evidence or has been brought on record. The quoted authorities of the learned counsel for petitioners having no any relevancy in the present matter, as here in the instant case, respondent No,2, Muhammad Yousaf, and even petitioners had admitted this fact that ownership of the shop in question originally belonged to applicant/respondent No,1, whereas, through evidence, it has come on record that petitioners have got the possession of the disputed shop from the tenant, Muhammad Yousaf. It again may be observed that in the present matter, question of title was not involved, but actually, findings of the Rent Controller were related to the relationship of landlord and tenant, in which, it has fully been established that Muhammad Yousaf, being tenant of the applicant/respondent No,1, Haji Abdullah Jan, violated the provisions of section 13(11) of the Balochistan Urban Rent Restriction Ordinance 1959, and without permission or written consent, has transferred or sublet the shop in question to petitioners, and petitioners were not allowed to make redundant or emasculate the law of Rent Restriction Ordinance to raise any fictitious or concocted claim for non-existence of relationship with landlord as a tenant. Admittedly, the provision of Balochistan Urban Rent Restriction Ordinance, 1959, actually relates hierarchy of resolving civil nature of disputes and any ancillary or offshoot of any tenancy agreement in respect of a title or relationship could be seen. And resolved in respect of that tenancy agreement, however, any distant, intricate and complicated question of title or any question of illegally grabbing property seems involved, not related to the tenancy agreement then, Rent Controller having no jurisdiction to independently try the question and give any finding related to the same, because it is the only civil Courts, which entertain such disputes, after proper probe and evidence decide the matter.
13. ' Hence, in the above discussed circumstances, present revision petition has no any(?) force as learned Rent Controller has not exercised a jurisdiction, which has not been vested in it by law or has failed to exercise his jurisdiction so vested in him or he has not exercised his jurisdiction, illegally or with material irregularity. Thus, this civil revision petition is hereby dismissed.