' MRS. SYEDA TAHIRA SAFDAR, J.---Feeling aggrieved of the order dated 31st December, 2010 of Civil Judge, Zhob, whereby the suit filed by the petitioners was rejected, and order dated 28th February, 2011 of District Judge Zhob, whereby the appeal filed against the order was also refused, the petitioner filed the instant, petition seeking setting aside of both the orders, and remanding the case to the trial court to decided it afresh in accordance with the law. It was contention of the petitioners that both the courts below failed to understand, and appreciate the points involved in the case, and decided the matter in haste. Further, the matter in dispute pertains to factual controversy existed between the parties, but the trial court decided the suit without calling. For the evidence. But, this aspect of the matter was not considered by the appellate court, therefore, needs interference of this court. It is further contended that the courts below while deciding the matter relied on 'findings of the Rent Controller in respect of title of ownership in eviction proceedings. But failed to appreciate the legal aspect of the matter that the issue of ownership cannot be decided in a rent proceedings. Furthermore, the principle of Re judicata was misapplied in the case. It was contended that both the courts below failed to consider the legal and factual aspect of the case, and arrived to the findings, which are contrary to law, thus not sustainable.
2. While arguing the matter the learned counsel for the petitioners was of the view that the property in question is a joint property, while it is in joint possession of the parties. Further, previously the eviction of shop in question was sought, which was allowed by order of the Rent Controller, but this fact does not act as Res judicata, in the proceedings of the instant case before the trial court. It was further his arguments that in view of the relevant raw, the Rent Controller is not competent to decide the title of ownership between the parties. He further contended that the petitioners were condemned unheard, as the proceedings were not conducted in accordance with law. While replying to the arguments of the learned counsel for the petitioner, the learned counsel for the respondent No, 1 was of the view that the Rent Controller is very much competent to decide the title and ownership of the parties before it. It was further his argument that the instant suit was filed without any cause of action. Therefore, rightly rejected by the courts below. Learned counsel relied on: Raja Sher Ahmed v. Muhammad Abdullah and others 1991 SCM R 277/273 Gul Sharbat Khan v. Zareef Khan 2009 M LD 1246 Messrs Young Men's Christian Association (YMCA) through President v. Government of Sindh through Secretary Social Welfare and Women Development Department Karachi and 3 others 2009 CLC 986 3. The petitioners filed a suit seeking declaration of the title of ownership in, respect of the shop bearing No, D/223-A, situated in front of Post Office, Zhob, being their joint property. They sought possession of their respective shares from the shop after its partition. But, in reply respondent No,1 strongly denied the title of the petitioners with contention that the shop is exclusively belonged to him, as it was allotted in his name by the Tehsil Municipal Administrator, Zhob, through PATTA dated 11th June, 1980. With further contention that he previously filed an application seeking ejectment of the tenant from the premises, which was allowed in his favour up to the level of this Court. At present the title of the shop is matter in issue between the parties. The trial court decided the matter through order dated 3rd December, 201Q, and made order to the effect:-- "That plaintiff side has no ownership documents, while defendant No,1 attached patta of shop in question issued in favour of him, the authenticity of said patta/ownership through cancellation is not requested by plaintiffs, without of that he requests of declaration and partition is not possible, therefore in present form of plaint the plaintiff have no cause of action, hence instant plaint is hereby rejected and status-quo order dated 19-10-2010 is also called back.
' Being aggrieved of the order, an appeal was preferred, which was decided through order 28th February, 2011, by District Judge Zhob, whereby the order of the trial court was upheld. The appellate court completely based its findings on fact that "on issue regarding ownership of the shop in question has already been decided by the court of Rent Controller vide judgment dated 17th April, 2009 and on asking a question to the fact that when the issue has been decided by the court of competent jurisdiction, can be reopened but there was no reply from the learned counsel for the appellants."
4. The bare perusal of both these orders reveals that both the courts below without framing of the issues recorded findings, and decided the matter, while relying on the documents, which are yet to be established by the parties after producing their respective evidence. It is a clear error on the part of the courts below. In present case the issue in hand is that whether the property in question is a joint property, and owned by the parties. It is a factual controversy, which can only be decided on the basis of oral and documentary evidence produced by the parties. As far as the proceedings before the Rent Controller is concerned, it has no restraining effect on proceedings pending before a court of general jurisdiction for determination of title of ownership. Because the proceedings pending before the Rent Controller working under provisions of Balochistan Urban Rent Restriction Ordinance VI, 1959 has restricted jurisdiction as provided therein. The preamble of the Ordinance provides the matters, which are to be dealt under the Ordinance. The preamble reads as under:-- "WHEREAS, it is expedient in the public interest to restrict the increase of rent of certain premises within the limits of urban areas and the eviction of tenants there from in Province of (West Pakistan); "
Therefore, in view of the same the proceedings initiated under the Ordinance is restricted between the persons litigating under the title of landlord and the tenant, in respect of rented premises. The term Land Lord is defined in section 2(c) of the Ordinance, which reads as under:- "Landlord; means any person for the time being entitled to receive rent in respect of any building or rented land whether that on his own account or on behalf of for the benefit of any other person, or as a trustee, guardian, receiver, executor or administer for any other person, and includes a tenant, who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under landlord.
In view of the same the term landlord is used in a wider sense. It may include the owner of the premises, but it also extends, and includes any person, who is entitled to receive the rent. Therefore, the landlord may not be the owner of the property and he only derives title of landlord being authorized by the owner to act on his behalf. Therefore, keeping in view the relevant law, the Rent Controller has restricted C jurisdiction, and can declare the title of the parties, only to the extent of, existence of title of landlord and tenant. But, no declaration to the extent of the title of ownership of property can be made in rent proceedings. Rather, declaration to the effect can only be made by a court of general jurisdiction in a suit filed under provisions of the Specific Relief Act, as done in present case. Both the courts below have made error while holding that the ownership of respondent No,1 has been decided by the Rent Controller in eviction application filed by him.
Therefore, no further relief can be granted, and case is hit by principle of Res judicata.
5. In view of the above discussion both the courts below not only erred in law but also erred in facts and the orders made are contrary to law, thus not sustainable. In view of the above discussion the orders dated 3rd December, 2010 passed by Civil Judge Zhob, and order dated 28th February, 2011 passed by District Judge Zhob, are hereby set aside. The case is remanded to the trial court for proceedings with the matter, after framing of issues and calling of evidence in accordance with law.
No orders as to costs.