' SYED SAJJAD HASSAN SHAH, .J.--- Haji Muhammad Tahir, the petitioner called in question while invoking the Constitutional Jurisdiction of this Court, the propriety and validity of the judgment and decree passed by the learned Additional District Judge-XI, Peshawar, dated 17-11-2009, whereby the judgment and decree passed by learned Rent Controller, set aside and the appeal of the respondent was accepted and rejected the ejectment petition filed by the petitioner with the direction to first obtain declaration of his ownership rights with respect to the disputed shop and then may move for ejectment of the respondent.
2. Briefly stated facts of the case are that present petitioner/ landlord (hereinafter called petitioner) filed an ejectment petition against Khalid Pervaiz and another the tenants/respondents, (hereinafter called the respondents) seeking the ejectment and recovery of rent since May, 2004 till the decision of the application, regarding the shop detailed in caption of the ejectment petition.
The petitioner sought the acceptance of his application on the grounds that shop is the ownership of Mst. Masooda Sultan and the petitioner is landlord of the suit property. The respondents in occupation of same is as tenant on payment of monthly rent as Rs,2000. The respondents have failed to pay the monthly rent since May, 2004 till date. The respondents contested the application by filing their written reply. The learned Rent Controller in the light of divergent pleas of the parties framed the preliminary issue that whether the relationship of landlord and tenant existed between the parties and the court has the jurisdiction to entertain the petition. Both the parties led their evidence in support of their respective stance. The learned Rent Controller seized of the matter, accepted the application and passed the decree for ejectment of the respondents.
3. The learned counsel for the petitioner contended that petitioner is the landlord of the demised premises and Mst. Masooda Sultan is the owner, the respondents in occupation of the disputed shop as tenants on payment of rent as Rs,2000 p.m., to this effect the petitioner has produced the rent receipts executed by respondents regarding the payment of rent of suit shop. To rebut the claim of the petitioner, the respondent No,1 relied upon an unregistered sale deed, same is fake and fictitious document. The respondent No,1 has no concern with the demised premises. Another shop being occupied by Iftikhar Ahmed (the respondent in connected writ petition). He further argued that the judgment passed by learned appellate court is in sheer violation of the law and the material available on record, in this respect the judgment passed by the learned Rent Controller founded on the cogent and convincing material available on record, thus, prayed for acceptance of the writ petition and for setting aside the judgment & decree passed by the learned appellate court.
4. The learned counsel appearing on behalf of the respondent vehemently contended that the judgment . And decree passed by the learned appellate court is in accordance with law, not suffering from any legal defect and based upon the valid and reliable material, whereas, the learned Rent Controller while deciding the rent petition failed to refer in support of his judgment any legal or valid document. The respondent No,1 purchased the present shop as well as another disputed shop vide unregistered sale deed executed by Mst. Hafiza Sultan and four others in his favour, therefore, the respondent No,1 being co-sharer in the suit premises cannot be ejected from the suit shop. The judgment passed by learned Rent Controller is suffering from conjecture and surmises, thus, prayed for the dismissal of present petition.
5. The arguments of the learned counsel of the parties considered and record of the case perused.
6. Viewing the available material, the submissions of learned counsel of the parties and the judgments passed by the learned courts below, it transpired that the learned Rent Controller while deciding the matter has placed reliance upon the rent receipts showing the respondent No,1 as tenant of the suit shop. It is quite evident from the perusal of the rent receipts that these are pertaining to shop without showing any specification, location and identification. Moreso, regarding the payment of rent monthly receipts have not been produced. The receipts were confronted to the respondent No,1 in his cross-examination, who has flatly denied his signature and execution of said receipts. In such eventuality the petitioner was under legal duty to have proved the execution of the said receipts, on failure to prove the same, it can be safely concluded that those receipts are not sufficient to establish the relationship of landlord and tenant between the parties to suit. The petitioner has failed to provide rent deed executed between the petitioner and the respondent No,1 in order to prove the valid tenancy, in as much as the petitioner bas failed to lead even oral evidence in order to establish the relationship of landlord and tenant. On the other hand the respondent has relied upon an unregistered sale deed in his favour in support of his possession.
The owner of the demised premises received a sum of Rs,9000 as sale consideration, and respondent No,2 inducted into possession of the suit property as tenant on payment of monthly rent.
6-A. On preponderance of evidence of both the parties, a legitimate and lawful conclusion can be drawn that the petitioner could not prove the preliminary issue regarding the existing of relationship of landlord and tenant. The learned District Judge while deciding the appeal rightly set aside the finding of learned Rent Controller after undertaking the review of entire material on the record, which cannot be interfered with by this court, as without determination of ownership the question of tenancy of the demised premises cannot be decided, therefore, referred the petitioner to have proved his title by filing a suit in the Civil Court. In this regard reliance placed upon a case titled Rehmat Ullah v. Ali Muhammad, reported as 1983 SCM R 1064, wherein, it was observed that:-- "In a case like the present when the appellate authority of the Rent Controller was of the view that the respondent herein, who was claiming to be the landlord on the basis of ownership but this claim did suffer from some doubt, the proper course for the appellate authority was to have decided the issue of the existence of the relationship of landlord and tenant against him, but at the same time permitted him to get his titled established in a Civil Court adding that he can again move for ejectment of the occupant from the property in question if the same is found by the Civil Court to belong to him. An ejectment petition as decided in these terms would entitle the alleged landlord to re-agitate the matter before the Rent Controller again and the decision of the Rent Controller taken earlier by him would not constitute res judicata or preclude him from re-agitating the matter before him once again."
7. The result in practical terms accordingly may be summed up as follows:--- "The Rent controller was who dealing with a petition for ejectment of an occupant of a property by a party claiming to be his landlord, a claim which was based on the plea of ownership, should have proceeded to decide all the Issues relevant to the said question, which incidentally may also have included a decision on question of title. This was done by the Rent Controller. If his appellate authority considered that a deeper and a more detailed examination of the last- mentioned question was necessary for the settling this matter and also found that the title of alleged landlord did suffer from some doubt, he should in the circumstances, have dismissed the ejectment petition, leaving the appellant before him, to move the Civil Court for declaration of his title."
8. A similar question was under consideration of august Supreme Court the findings returned while placing reliance upon a case titled "Rehmat Ullah" (supra) the dicta laid-down in a case title Umer Hayat Khan v. Inayat Ullah Butt and others, reported as 1994 SCM R 572, wherein, it was held that:--- "In the circumstances of the case, the issue regarding existence of relationship of landlord and tenant could not have been properly adjudicated upon without resolution of the controversy as to the ownership of the house to be got vacated from the respondent. The civil court is the appropriate forum for determination of such a dispute. The High Court, therefore, justifiably set aside the order of the Appellate Court and left a choice for the appellant/landlord to have a recourse to the civil court to establish his title."
9. In the instant case the landlord/ petitioner has totally failed to produce any legal document or oral account of evidence in support of his version about the title of Mst. Masooda Sultan, in such circumstances the issue of relationship of landlord and tenant decided by the honourable Judge of the Karachi High Court after extensively, visualizing the proposition as involved for discussion in the instant case reliance placed upon a case titled Syed Aijaz Hussain v. Azeem Ullah, reported as 1984 CLC 2908, wherein, it was held that:- "On merits, on the issue regarding the relationship of landlord and tenant between the parties, the respondent had given evidence and in support thereof he had examined one Juma Shah. The appellant examined himself. There is no evidence in writing to show that relationship of landlord and tenant existed between the parties. There is neither any tenancy agreement nor is their any evidence in writing about the payment of rent by the appellant to the respondent in the shape of a money order, counter file of any receipt, any letter from the appellant, any notice by the respondent to the appellant or any other document. There is only the testimony of the respondent and the witness, Juma Shah. The oral testimony of the appellant in this case is not sufficient in law to base a finding that the relationship of landlord and tenant existed between the parties. Both the parties have been claiming ownership of the property in question and the question of title is still not finally decided and a revision filed by the appellant is still pending. In so for as the document is concerned both the parties have produced documents for establishing their title to the property. As observed earlier, the question of title is not required to be determined in the present proceedings and as such no observation is being made about the strength of these documents."
10. This court not supposed to enter deep into controversy as this is the job and vocation of the lower Tribunal and appellate court. The jurisdiction so vested in Tribunal below, deciding a matter within the purview of the special law cannot be pre-empted by this court while hearing the writ petition. Reliance placed upon a case titled PLD 1981 SC 46, wherein, it was observed that:-- "In our view the jurisdiction of the High Court to interfere in matters of the kind involved in the present case is a very limited one and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statues or has fail to follow the law relating thereto as laid-down by the superior courts."
11. In view of the above discussion the judgment and decree passed by learned appellate authority is in accordance with law not suffering from any illegality or jurisdictional error thus, maintained being lawful.
12. This petition is hereby dismissed as being without any substance.