JUDGMENT SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---This constitutional petition is directed against an oider dated 21-7-1999 passed by Ch. Shaukat Ali Khan, learned Addl. District Judge, Lahore whereby he maintained the order dated 4-7-1998 passed by Sardar Ahmad Khan Maiken, learned Rent Controller, Lahore, whereby he passed ejectment order against the present petitioners.
2. The facts sheet of the case as borne out of the record is that on 27-2-1994 Faheem Naseem and 7 others being sons, daughter and widovv of late Muhammad Naseem and Muhammad Yameen and Salah ud Din being successors-in-interest of Seth Abdul Samad and Sheikh Shamas-ud-Din, sought the eviction of Mazhar Saeed and Anwar Saeed from the premises (not disputed) by filing an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 alleging that the respondents were inducted in the property as tenant in the year 1983-1984 by their predecessors at the monthly rent of Rs.1500, which the respondents paid uptill 1-1-1993 whereafter they (tenants) defaulted in the payment of /the rent. It is also alleged that a notice raising the demand for the payment of the monthly rent as well as arrears, was sent to the respondents through registered post, which remained un-replied.
3. The ejectment petition was contested by the respondents alleging that the relationship of landlord and tenant did not exist between the parties as they are in occupation of the property in dispute in part performance of an agreement to sell. The respondents, however, admitted that late Muhammad Naseem, Seth Abdul Samad and Shamasud-Din were joint owners of the property in dispute.
4. The learned Rent Controller framed solitary issue in respect of the relationship of landlord and tenant and vide judgment dated 4-7-1998 accepted the ejectment petition and ordered the eviction of the respondents from the rented premises holding that the respondents could not establish any agreement to sell as narrated in their written reply, therefore, their possession over the property was as of tenant. Similar view was expressed in the appeal, preferred by the petitioners before the First Appellate Court, which vide order dated 21-7-1999 was dismissed.
5. This writ petition was decided by this Court vide order dated 20-6-2006 whereby the ejectment petition was dismissed by accepting the constitutional petition. The landlord had assailed, judgment of this Court through Civil Appeal No.1491 of 2006 and the apex Court vide judgment dated 28-12-2010 with the consent of the parties accepted the same and remanded the case to this Court for decision afresh.
6. Before proceedings on the merits of the case, it would be appropriate to state that both the learned counsel for the parties Messrs Muhammad Amin Sheikh and Ghulam Haider Al-Ghazali, Advocates also burdened this file by submitting the synopsis of the case-law in support of their respective contentions.
7. Learned counsel for the petitioners firstly raised point that the respondents failed to establish through evidence that the petitioners were occupying the rented premises as a tenant. He further contended that the solitary statement of the one of the respondents is quite insufficient to discharge the onus to prove the relationship of the parties as landlord and tenant. In this connection, learned counsel has cited the cases of Mst. Wakeelan Begum v. Additional District Judge, Gujranwala and 2 others (2006 CLC 1886), Muhammad Yousaf v. Rana Muhammad Shafi and others (2005 YLR 1627), Haji Faqir Muhammad v. Hazra Tulah (1989 CLC. 252), Shahzadi Begum v. Suleman Khan and 3 others (1993 CLC 1753), Mrs. Kaneez Raza v. Ansar Ali and another (1987 MLD 191), Beejal Mal v. Punaji 1987 CLC 1134, Muhammad Naeem v. Abdul Wahid and others 1999 MLD 1342, Suleman Mashkoor v. Abdul Ghafoor and others (2002 CLC 143), Mst. Roshan Bi and 6 others v. Munawar Hussain Gil (1987 MLD 3263), Afzal Ali v Azhar Iqbal (1997 MLD 2262) and Haji Suleman v. Haji Amin Sakoor Tumbi and another (1982 CLC 1453).
8. The second submission of the learned counsel for the petitioners is in respect of the application of Article 129(j) of Qanun-e-Shahadat Order, 1984 by stating that the best evidence has been withheld by the respondents, therefore, the presumption is that that evidence was not going to support the case of the respondents that is why the same was withheld. In this connection, learned counsel has referred to the fact narrated by the respondents in para 2 of their ejectment petition where it is mentioned that the present petitioners were paying rent against the receipts to the respondents. According to the learned counsel no such receipts were tendered in the evidence, as such the respondents failed to establish that the petitioners were their tenants. In this connection reliance has been placed upon the cases of Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others (2007 SCMR 1884), Lal Khan v. The State (2006 SCMR 1846), Nazim Ali v.
Rashid Qamar and 2 others (2006 CLC 289), Gul Begum v. Muhammad Riaz and another (2006 MLD 480), Ibadullah and others v. Sher Afzal (2006 CLC 666), Mst. Fatima Bibi v. Mst. Kaneez Fatima Bibi (2005 YLR 3089), Munir Ahmad and 6 others v. Muhammad Saddique (2005 MLD 364), Ziauddin Siddiqui v. Mrs. Rana Sultana and another (1990 CLC 645), Sardar M. Iqbal v. The State and another (2003. YLR 147), Mudassar Ahmad v. The, State (2000 PSC 905)(sic), Abdul Ghani and others v.
Border Area Committee and others (1988 MLD 1538), Messrs Eastern Express Co., Ltd. V. Messrs Western India Skin Exporters (PLD 1958 (W.P)
Karachi 355), Manzoor Hussain Khan v. Mst. Asia Begum and 21 others (1990 CLC 1014), Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and Muhammad Hayat v. Wazirzada and others (PLD 1990 Peshawar 45).
9. On the other hand, Mr. Ghulam Haider Al-Ghazali, Advocate, learned counsel for the respondents, while relying upon the cases of Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320), Syed Chan Peer Shah v Muhammad Shafi and 2 others (2010 MLD 302), Abbas Ali Khan v. Mst.
Farhat Iqbal and 2 others (2009 SCMR 1077), Miss Shaista Shams v. Mst. Seema Begum through constituted Attorney and 2 others (PLD 2008 Karachi 424); Mst. Ishrat Khan v. Rauf Ahmad Sheikh and others 2000 MLD 181 and Wazeeruddin v. Khalid Masood (1989 CLC 106) contended that mere agreement to sell, so - mentioned in written reply, does not create any right or title in favour of petitioners unless sale deed is executed or suit for specific performance is decreed in their favour.
He further contended that a notice was sent to the petitioners had been received as per statement of RW.2 but was remained un-replied, thus tantamount to admission of relationship of landlord and tenant. To support this contention, learned counsel has cited the case of Barindra Kumar Ghose and another v. Emperor (7.Indian Cases 359). He has also raised the objection in respect of maintainability of this constitutional petition by submitting that the High Court cannot sit as Court of appeal to decide whether the evidence of the parties was sufficient for upholding the conclusion of the Courts below and the High Court is not obliged to go into the merits of the case de novo and to reappraise and assess the evidence on the question whether relationship of landlord and tenant exists between the parties. In this connection, learned counsel has cited the cases of Messrs Muhammadia Medical Hall Khan Arm Dealers through Khurshid Alam v. Mahmood ul Hassan and 3 others (NLR 1982 SCJ 23) Saifullah Khan alias Buddan Khan v. Addl. District Judge, Kasur (2000 CLC 1951) and Syed Chan Peer Shah v. Muhammad Shafi and 2 others (2010 MLD 302).
10. Parties heard and record perused.
Ti. The' cases cited by counsel for petitioners, have been examined and it is found that principles laid down therein were so settled on the basis of facts which are distinguishable than facts of instant case. In these cases, ejectment petitions were not filed by legal heirs of persons under whom the petitioners of these cases were having title and had right to sue. In this case, admittedly, the respondents are legal heirs of joint owners of the property, and as proved on record, the respondents were paying rent to them (predecessors), thus right to receive rent devolved automatically, upon respondents, when succession of late owners opened. Accordingly, these cited cases are not helpful to the petitioners. The cases referred to in respect of second argument i.e. Application of Article 129 of the Qanun-e-Shahadat Order, 1984 are going to be discussed in ensuing paragraph of this judgment.
12. There is no cavil to the first proposition put forward by the learned counsel for the petitioners that initial onus to establish the relationship of landlord and tenant is always upon the landlord, who has to prove the same through convincing and cogent evidence that particular person is tenant in property. In the present case it is not denied by the petitioners that the respondents are not the legal heirs of late Muhammad Naseem, Seth Abdul Samad and Sheikh Shams-ud-Din through whom the respondents being their successors-ininterests had derived the title of the owners. In such like cases when it is admitted that the respondents are legal heirs and it is not denied in so many words that no rent was paid to late owners of the property, it is not required to establish that they (legal heirs) were also authorized to receive rent from the tenants of the premises as they automatically fall within the definition of landlord as defined in section 2(c) of the Ordinance (ibid). It is sufficient for successors to say that they are the legal heirs of their predecessdrs and are entitled to receive the rent. The respondents in this respect had also sent a legal notice through registered post, the receipt of which is available on the file as Exh.A.3. It is needless to say that the postal receipt enjoys the presumption of truth that the letter sent through it had been delivered to the addressee: This presumption can only be rebutted if that envelope is received back undelivered, which is not the case here, thus it goes to establish that the legal notice sent by the respondents was received as admitted by RW.2. After receiving notice the petitioners had ample opportunity to reply the said notice by taking pleas in respect of alleged agreement to sell, which they raised in their written reply but they failed in this respect. Failure to reply the notice on the part of the petitioners, amounts to admission of the facts narrated in notice, therefore, the petitioners are now.Estopped by their conduct to deny the title B B #tbs B F B G B #the B of landlord...13. It is also very important to note that it is the person who is in occupation of immovable property to establish the capacity in which he is occupying the property in dispute. The petitioners nowhere in their written reply have taken C any specific plea about their title under which they are in occupation of the rented premises. A few lines in a very vague and ambiguous manner have been narrated in the written reply, like the one which is available at page-32 of this petition wherein it is mentioned apparently half-heartedly "that the respondents are occupying the property in their on rights and in part performance of the agreement to sell." D Similar assertion is found in para 2 of the written reply that the petitioners are in occupation of the demised premises in part performance of some agreement to sell. From the perusal of these assertions as well as the statements of RW.1 and RW.2, it is not established as to with whom the petitioners had agreed to purchase the property when that agreement was executed, when sale consideration was paid and in whose presence act was performed.
E All these facts necessarily are to be mentioned in the written reply so that the other party should not be taken by surprise but no such details are available in the written reply of the petitioners. This fact of non-mentioning of particulars of an agreement to sell in written reply is sufficient to repel the contention of the petitioners that they are in occupation of the F property in their on rights and in part performance of an agreement to sell. Further, it is a salutary principle of law that I he who takes a specific plea or asserts a fact, is bound to prove the same by producing convincing and cogent evidence. The opposite party can never be directed to prove the negative fact as it would amount to putting the horse before the cart. It was the petitioners who had taken a specific plea that they were in possession of the rented premises under some agreement to sell and to prove the same positively, thereafter the respondents could be burdened to disprove the specific allegation of the petitioners. The petitioners could never establish tentatively necessary ingredients of alleged agreement. The evidence, in this respect, is quite insufficient to believe existence of agreement to sell in favour of the petitioners. On this point of raising of plea by a person and to prove it, the cases of Mst. Nur Jehan Begum and Manzoor Hussain Khan (Supra) are helpful.
14. There is also substance in the submission of the learned counsel for the respondents that this Court cannot sit as a Court of appeal to decide the question of relationship of landlord and tenant between the parties on the basis of reappraisal of the evidence and to decide the case on merits de novo. It is found that the Courts below after properly appreciating the evidence available with them had rightly concluded that the petitioners are the tenant under the respondents who defaulted in the payment of the rent and were liable to be evicted from the rented premises. This Court concurs with findings of fact recorded by the Courts below.
15. In the circumstances discussed above, this petition having no merits is dismissed..
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