' MRS. SYEDA TAHIRA SAFDAR, J.--- The appellant Ibrar Hussain feeling aggrieved of the judgment dated 24th November, 2008 of Rent Controller/Civil Judge-I Quetta, whereby the eviction application filed by him was refused, has filed the instant appeal. The appellant challenged the judgment on grounds that the trial court failed to appreciate the facts and circumstances of the case in true perspective, and based its findings on misreading, and non-reading of the evidence.
Further, the trial court also failed to appreciate the fact that the respondent No,2 Mst. Qamar Begum had no independent status in respect of the premises in question, rather in fact she derived her status from respondent No,1, who was tenant of the appellant in the disputed premises. 'It was further contended that this fact was not properly appreciated that a sale transaction was lawfully effected between him (appellant), and respondent No,1 the previous owner of the premises in question, therefore, a valid title passed on him (appellant). Therefore, in the state of facts respondent No,2, being wife of respondent No,1, derived her title as tenant in premises in question.
The appellant contended that presently respondent No,1 had already left, the premises and started residing with his second wife due to some matrimonial dispute, but respondent No,2 along with her children is still residing therein. Therefore, in the circumstances the tenancy did n( cease, rather devolved on respondent No,2. But these facts were not properly appreciated by the trial court, rather a contrary view had been taken, which is contrary to law, and facts, thus liable to be set aside. It was further contended that the trial court failed to appreciate that the denial of existence of relationship of landlord, and tenant between the parties on the part of respondent No,2 was mala fide; therefore, she was liable to be evicted forthwith from the disputed premises, but the trial court failed to exercise the jurisdiction vested in it. Furthermore, findings on each and every issue were not recorded, therefore, the impugned judgment is non speaking, as such failed to fulfil the legal requirement, therefore, liable to be set aside. It was prayed that the impugned judgment be set aside, and the eviction application filed by him be allowed as prayed for.
2. It is apparent from the record that notices were duly served on both the respondents, despite the same only respondent No,2 appeared to contest the proceedings, but there was no representation on behalf of respondent No,1, who was proceeded against ex parte through order dated 12th October, 2009.
3. The learned counsel for the parties were heard at length. It was argument of the learned counsel for the appellant that the property in question was purchased by the appellant, while an agreement was also executed between him, and respondent No,1 on 12th December, 2003.
Whereafter an agreement of tenancy was also executed between them on 13th June, 2004. It was further his argument that there was sufficient evidence on record, whereby it was established that a valid title had been devolved on the appellant on basis of the sale transaction, therefore, there was no occasion for respondent No,2 to deny the title of the appellant, for which she was required to be penalized as provided in law. It was further his argument that respondent No,1 failed to appear before the trial as well as this court despite effecting of the service, therefore, in the circumstances it shall be presumed that he admitted the claim of the appellant. Therefore, mere on this fact the application was required to be allowed, but the trial court took a contrary view, which is not in conformity with law. The learned counsel further argued that the execution of agreement to sell was an admitted fact, therefore, respondent No,2 cannot deny her status of being his tenant in the premises, nor his ownership of the premises in question. She was estopped to raise such plea. While replying to the arguments the learned counsel for respondent No,2 strongly contested the admission of sale agreement by respondent No,2, rather it was his contention that the documents i,e, sale agreement, and lease agreement were prepared through fraudulent means, thus of no legal effect. The learned counsel also pointed out that the sale agreement, which is on record as Exh.A/5, bears thumb-impression of the appellant, while contrary to it the rent agreement Exh.A/6 bears signature of the appellant. It was his contention that these facts established that both the documents were manipulated, and prepared through fraud. It was further his argument that there is clear mala fide on the part of the appellant, and respondent No,1, as they in collusion with each other tried to deprive the respondent No,2 from her legal right. He prayed for dismissal of the appeal.
4. The perusal of the record reveals that the appellant Ibrar Hussain, while claiming himself to be the owner and landlord of the premises in question bearing Khasra No,214, measuring 0 rod 4- poles (1060 square feet), Mohal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil and District Quetta, situated at Mohallah Shahi Bagh, Street No,2, Hazara Town, Quetta, described the respondents to be his tenants in first floor of the house at monthly rental of Rs,2000/-. It was his case that he purchased the house in question in consideration of Rs,3,60,000/- (Rupees three Lacs and sixty thousand) on 12th December, 2003, from respondent No,1, and an agreement was also executed between them on even date. And the possession of ground floor was handed over to him. But, it was agreed between the parties that respondent No,1 would reside along with his family in the first floor of the house as licensee, without payment of any rent till 13th June, 2004. It was further his (appellant's) case that on 13th June, 2004 the first floor was rented out to respondent No,1 at monthly rental of Rs,2000/- (Rupees two thousand), while a rent agreement was also executed between them on the same date. The appellant claimed ejectment of the respondents on ground of nonpayment of rent w,e,f, July, 2004, and his personal bona fide use and occupation of the premises. It was his case that on his demand the respondent No,1 informed him that he had already vacated the premises, and residing somewhere else, therefore, had no concern with the premises in question. While, respondent No,2, who is in occupation of the premises in question, not only refused payment of the rent, but also refused to hand over the vacant possession of the premises in question.
5. The record further reveals that respondent No,1 also failed to appear before the trial court, therefore, proceedings were initiated against him ex parte pursuant to order dated 10th February, 2005. But respondent No,2 Mst. Qamar Begum appeared, and contested the proceedings. In her reply she denied existence of relationship of landlord, and tenant between her, and the appellant. It was her contention .That the land underneath was purchased by respondent No,1 being her husband with the finances provided by her, and construction was also raised by her with her own resources. It was her contention that the respondent No,1 had no right or title to enter into sale transaction with the appellant, as he was not the sole owner of the property in question. It was further her contention that litigation had been pending before the Family Court between her, and respondent No,1, which was decided in her favour therefore, only to pressurize her for withdrawal of the family suit, these documents were executed fraudulently, and instant eviction application had been filed.
6. The trial court framed following issues on 26th February, 2005:---
(i) Whether there exists relationship of landlord and tenant between the applicant and respondent No,2?
(ii) Whether the respondent No,2 has committed default in payment of monthly rent w,e,f, August, 2004 upto date?
(iii) Whether the property in question is required by applicant for his personal bona fide use and occupation?
(iv) Whether the applicant is entitled for the relief claimed for?
(v) Relief?
7. The appellant produced six witnesses, and recorded his own statement. While in rebuttal four witnesses appeared on behalf of respondent No,2, and she also got recorded her own statement.
The trial court after hearing learned counsel for the parties decided the matter through judgment 29th November 2008, whereby arrived to the conclusion that there is failure on the part of the appellant to establish existence of the relationship of landlord, and tenant between the parties, therefore, the eviction application is not maintainable thereby dismissed. Feeling aggrieved of the judgment instant appeal had been filed.
8. In present case certain facts appeared from the pleadings, and the evidence of the parties. It appeared that the respondent No,2 is in occupation of the first floor of the house, which is the premises in question. Further, it also appeared that the respondents were occupying the house even before execution of the alleged sale transaction. But later in time respondent No,1 left the premises, and during pendency of the eviction application he was not residing therein.
Furthermore, admittedly the ground floor of the house in question is in the possession of the appellant. In addition the appellant claimed his title in respect of the house in question on basis of some sale transaction effected between him, and respondent No,l. While he claimed both the respondents to be his tenants in the premises in question at monthly rental of Rs,2000/- since 13th July, 2004. Further, execution of a valid sale-deed along with a lease deed had been asserted by the appellant being his title deeds. It is to be observed that both these documents were executed between the appellant, and the respondent No,1, who never appeared before the trial court, nor before this court, thus failed to rebut the averments. But as far as respondent No,2 is concerned, she not only appeared before the trial court, but also appeared before this court, and contest the proceedings. She claimed herself to be the owner of the house in question, and also claimed her occupation in her own rights. It was her case that the property was purchased, and thereafter built by finances provided by her to respondent No,1, being her husband. To establish their respective contentions evidence was produced by both the contesting parties.
9. In addition to the oral evidence the appellant produced relevant entry in the Revenue Record as Exh.A/1, which shows that some property bearing Khasra No,214, measuring 15-rods 7-poles situated in Mohal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil Quetta, existed in his name. But, this revenue entry failed to disclose that from whose name, and by whom this property was transferred in the name of the appellant. Further, reliance was made on the sale-deed, which was plaeed on record as Exh.A/5, and applicant's witness No,3 (A.W.-3) Muhammad Afzal confirmed its execution, as he attested the document being Notary Public. In addition through A.W.-2 Nadeem Ahmed, representative of General Post Office, three receipts of registered post were produced as Exh.A/2, Exh.A/3 and Exh.A/4. To rebut the same the respondent No,2 produced oral witnesses, no title deed had been produced by her to establish that the property in question existed in her name.
Rather she only produced court record through respondent's witness No,4 (R.W.-4) Abdul Rehman, Record Keeper, as Exh.R/l to Exh.R/8. Though title of ownership is matter in dispute between the parties, but as the matter in hand pertains to the dispute, which is to be dealt under the provisions of the Balochistan Urban Rent Restriction Ordinance, 1959, (Ordinance-VI of 1959), which is a special law having limited scope, therefore, the decision is to he made within the ambit provided therein.
10. The appellant though have claimed himself to be the owner of property in question being purchased by him from respondent No,1 but to get relief of vacant possession of premises in question by eviction of the respondent he has to establish that in addition to ownership he also attained the status of landlord, and the respondents arc in possession of the premises in question as his tenants. To understand the term "Landlord" clause (c) of section 2 of the Ordinance VI of 1959 is to be seen, Wherein it is defined as:--- "2(c) "Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator 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 a landlord."
Keeping in view the same the term landlord is used in wider sense comparing to that of the term "owner". Therefore, any person, who is entitled to receive rent in respect of any building or rented land, that too, for the time being is considered to be a landlord. It also includes a person, who may have been receiving rent on his own account or on behalf or benefit of any other person, with further specification as provided therein, therefore, an owner of a property is landlord of the premises owned by him, but for becoming a landlord having ownership of the property is not the condition. In both the cases receiving of rent will be the deciding factor about status of a person of being a landlord or otherwise. It will be beneficial to go through the term "tenant" which is defined in section 2(i) of the Ordinance-VI of 1959, which reads as under:-- - "Section-2(i) "Tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a, building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fee in a public market, cart-stand, or slaughter house or of rents for shops has been framed out or leased by a municipal, town or notified area committee, or by the Corporation of the City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust; and"
Keeping in view both the provisions the status of the parties is to be determined at first instance, whereafter, the decision is to be made on merits of the case. In present case the appellant claimed the respondents to be his tenants in the premises in question. As far as respondent No,1 is concerned, he is admittedly not in possession of the premises in question, nor he showed any interest in contesting the proceedings. But as far as respondent No,2 is concerned, she being wife of respondent No,1 is 'admittedly in possession of the premises in question, therefore, in view of the fact it is the appellant, who has to establish that the respondent No,2 is occupying the premises in question as his tenant, thereafter he can sought eviction on ground of default in payment of rent, or on ground of personal bona fide use and occupation. According to the appellant the respondent No,2 being wife of respondent No,1 derived her title, and status of tenant from him (respondent No,1), as she had no independent status of her own. Though right of tenancy is an inheritable asset, as it devolved on wife and children of a tenant, but only in case of his death. But the relevant provisions are silent to the effect that in life time of a tenant whether the tenancy can be devolved on his wife or children? Further, a person becomes tenant only when he is liable to pay rent.
Therefore, the mere fact of physical possession is immaterial in the circumstances, because the premises can be occupied by a person as licensee, or even by a trespasser. Therefore, the agreement for payment of rent is the main feature in such like cases. In present case the appellant as per his own showings derived status of landlord after purchase of house in question, but the respondents did not ipso facto become tenants of subsequent owner, because admittedly they were not occupying the premises as tenants, rather they were in occupation of house in question in their own right of ownership. Therefore, the burden was on the appellant to establish the inception of tenancy between him, and respondents, specially respondent No,2. From the evidence on record there is no material either oral or documentary that any rent was agreed between the contesting parties, and ever paid by respondent No,2 to the appellant. The sale agreement as well as the rent agreement were admittedly executed between the appellant, and respondent No,1, while respondent No,2 nowhere appeared. There is also no evidence from which it appeared that the respondent No,2 ever admitted her status of being tenant in the premises in question, or any demand was made by the appellant for rent, which was refused by her, or any notice was ever served on respondent No,2 in same respect. None of the witnesses, appeared from the side of the appellant, witnessed the occasion when either respondent No,1 or respondent No,2 ever paid rent to the appellant or on demand refused to pay the rent.
11. From whole set of evidence, and pleadings of the parties it appeared that the appellant is claiming his right in respect of the premises in question being its owner as purchaser of the house in question. While on the other hand the respondent No,2 strongly denied his title, and claimed herself to be lawful owner of the property. This fact also appeared during course of proceedings that some civil suit was also filed by respondent No,2, for declaration of her title, and cancellation of the mutation entry effected in favour of the appellant in the Revenue Record but fate of the suit has not been disclosed. In suchlike situation it was very much appropriate for the appellant to have approached a court of competent jurisdiction for obtaining declaration of his title, thereafter, may have approached the court for eviction of the respondents from the premises in question, but this was not done.
12. In view of the material on record the appellant had completely failed to establish existence of relationship of landlord and tenant between him and the respondent No,2, therefore, the trial court had rightly decided the issue No,1 in negative. And in view of the same there was no occasion for giving any findings on the remaining issues, which was rightly done. The appellant has failed to make out a case in his favour. Further, no illegality is pointed out in the impugned judgment, nor instances of misappreciation, misreading or non-reading of the evidence, and material has been established by the appellant. Therefore, no interference of this court is required in the findings of the trial court. The appeal, being devoid of merits, is hereby dismissed, with no orders as to costs.