' KHALID MEHMOOD, J.---Through the instant writ petition the petitioner has called in question the validity of judgment and order dated 12-2-2010 of the learned Additional District Judge-IV, Abbottabad vide which the appeal df the petitioner was dismissed by upholding the judgment and order dated 17-11-2009 of the learned _Rent Controller/Civil Judge-XI Abbottabad.
2. Briefly stated the facts of the case are that predecessor, of petitioner purchased a piece of land in Masjid Bazar Abbottabad from one Bheem Singh in 1931 and got a site plan approved from the MC Abbottabad along with proper permission on 12-10-1931. That thereafter the predecessor of petitioner constructed a shop over the said land but due to outbreak of fire, most of shops were burnt, therefore, the predecessor of petitioner constructed two Shops Nos.548/C and 549/C. Out of which Shop No,548/C was occupied by Riaz-ul-Haq and No,549 was rented out to different persons on rent. That last tenant was Sheikh Nisar Ahmed after whose death Nisar Ahmed etc. Took possession and running business till today. That respondent No,1 served the petitioner with notice on 4-10-2007 demanding rent of shop w.e.f, 13-2-2006 and asked to vacate the shop for his personal use. Thereafter respondent No,1 filed an ejectment petition against the petitioner on the ground of being defaulter and for personal use. The respondent thereafter filed another application for amendment in the ejectment petition which was A allowed. The petitioner sought permission of the court for depositing the amount of compensation for use of entire land jointly owned by the petitioner and others and also applied for appointment of commission to determine the extent of ownership of suit shop. The court framed preliminary issue regarding relationship of landlord and tenant between the parties. After furnishing written statement, issues were framed and after recording pro and contra evidence, the learned Rent Controller accepted the ejectment petition vide judgment and order dated 17-11-2009.
' Aggrieved from the said order, the petitioner filed an appeal before the learned Additional District Judge-IV, Abbottabad which was also dismissed vide judgment and order dated 12-2-2010, hence the petitioner has invoked the constitutional jurisdiction of this court through the instant writ petition.
3. The learned counsel for the petitioner contended that question of law in the present case was a preliminary issue regarding relationship of landlord and tenant which was not properly addressed.
Though initially preliminary issue was framed but later on illegally the same was redundant. He argued that suit shops were purchased through unregistered sale-deed in 1931 which was acknowledged vide deed dated 2-4-1940. The shops were constructed by predecessor of the respondent and in this regard site plan was sanctioned by MC Abbottabad in 1935 after burning of suit shops the same has been produced before the trial court. The Rent Controller was duty bound to have decided the issue regarding relationship of landlord and tenant between the parties and then to proceed further. He has no authority or jurisdiction to decide title of the parties. He referred to the judgment of learned appellate court wherein the appellate court himself admitted in his judgment and it was held that title of the parties is beyond his jurisdiction. The only option left for the trial court was to have directed the parties to approach the civil court for resolving the controversy of title between the parties.
4. From the other side, the learned counsel for the respondent argued that on 2-12-2008 with the consent of the parties preliminary issue was left redundant and the petitioner has applied before the trial court for depositing the rent. Petitioner had submitted several applications before the Rent Controller for deposit of rent in the court. He also argued that petitioner is estopped due to his own conduct. The order dated 2-12-2008 through which the preliminary issue declared redundant and not challenged before the higher forum has attained finality. He further argued that respondent has become owner on the basis of registered sale-deed which was executed on 13-3-2006. He supported the order of both the courts below.
5. Arguments heard and file perused. Our finding is as under:--
6. In the present case, the material issues bearing Nos.2, 5, 12, 14 and 15 are reproduced as under:--
(2) Whether this court has got jurisdiction to decide the petition as per pleading of the parties OPP.
(5) Whether the respondent along with other legal heirs of Sheikh Riaz ul Haq are not tenant being co-owners of the Shops Nos.548/C and 549/C, thus the ejectment petition against them is not maintainable. OPR.
(12) Whether the respondent is along with the other legal heirs of Sheikh Riaz-ul-Haq entitled to receive the amount of improvements from the petitioner OPR.
(14) Whether the ejectment petition is not in accordance with section 13(3)(a)(ii) of Rent Restriction Ordinance and is liable to be ejected. OPR.
(15) Whether the respondent along with other legal heirs of Sheikh Riaz-ul-Haq is co-owner with the petitioner and thus petition in hand is non-maintainable before/without partition, OPR.
Above mentioned issues regarding the title of the parties and also jurisdiction of Rent Controller were framed. Regarding question of jurisdiction, the Rent Controller has rightly framed preliminary issue that whether the relationship of landlord and tenant exists between the parties. The Rent Controller has got the jurisdiction only when the relations of landlord and tenant exists between the parties. Landlord and tenant has been defined under section 2 of N.-W.F.P. Rent Restriction Ordinance, 1959.
' S-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 include a tenant who subjects any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord."
' S-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 fees in a public market, cat stand, or slaughter-house or of rents for shops have 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,"
' In the present case, from the very initial stage, the petitioner has claimed enjoying the suit property as his ownership on the basis of unregistered. Sale-deed coupled with approval of construction plan by Municipal Committee Abbottabad much prior to the partition in 1935. In this regard, Issues Nos.14 and 15 were framed. It is established law that moment the question of title arises or relationship of landlord and tenant is denied, the Rent Controller is duty bound to frame preliminary issue for resolving the controversy regarding relationship of landlord and tenant between the parties. In the present case, -preliminary issue was accordingly framed but the same was illegally redundant on 2-12-2008, decision of both the tower courts on Issue Nos.14 and 15 is contradictory. The trial court while deciding this issue has assumed jurisdiction of civil court and decided the title of the parties. While learned appellate court has rightly held that Rent Controller has no jurisdiction to decide the title, relevant portion of the said judgment is as under:-- "In this state of affairs, denial on the part of appellant regarding existence of relationship would be of no benefit to appellant. Although appellants claim partial ownership of the shop, however, as already observed by this court vide order dated 212-2010, this is beyond area of jurisdiction of this court to determine question of title or to declare ownership, even of any inch of property."
' By giving these findings, the learned appellate court should have directed the landlord to approach the civil court for establishment of title of the suit shop. In the present case, respondent has failed to produce any rent deed or counter foil of any receipt of rent issued to the petitioner by the alleged owner from whom he had purchased the suit shops. To prove the relationship of landlord and tenant it is incumbent upon the land-lord to produce the rent deed or at least t4e counterfoil of receipt of the rent which landlord has retained with him after issuing the receipt to the petitioner/tenant. Mere entries in the record of Excise and Taxation Department does not create landlord and tenant relationship. In this regard reliance can be made in case of Ifzal Ahmed v.
Mursaleen reported in 2001 SCM R 1434 which is reproduced below:-
(b) Sindh Rented Premises Ordinance (XVII) of 1979 S-15 ---Ejectment proceedings---Landlord and tenant, relationship of---Denial of such relationship by the, tenant--Effect---Such issue being one of jurisdiction should be determined first---Where there is no relationship the Rent Controller loses scission over lis and must stay his hands forthwith---Non-establishment of the relationship does not attract the provisions of Sindh Rented Premises Ordinance 1979."
(d) Sindh Rented Premises Ordinance (XVII of 1979)--- ---S.15---Constitution of Pakistan, 1973, Art 185 (3)---Ejectment of tenant-Landlord and tenant, relationship of---Proof---Nonproduction of any document by landlord to prove such relationship- --Effect---When the landlord had not established his position as landlord beyond reasonable doubt Rent Controller could not decide the question of relationship of landlord and tenant against the tenant---Landlord had neither produced any tenancy agreement nor any evidence in writing showing that the rent was being paid to him---Neither any counterfoil of receipt or any letter from the tenant or any notice nor any other document was produced by the landlord---Oral version of landlord was not sufficient to hold that relationship of landlord and tenant existed between the parties---High Court had rightly accepted the appeal of the tenant and order of Rent Controller was set aside---Leave to appeal was refused."
' Whenever a dispute regarding title is raised before the Rent Controller and landlord failed to establish any relationship of landlord and tenant, then Rent Controller is left with no option but to direct the landlord to get his title established from the competent civil court. In this regard, we rely upon judgment of apex Court in case of Rehmat Ullah v. All Muhammad reported in 1983 SCMR 1604. The relevant portion is reproduced as under:-
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--S.13 read with Ss. 2(c) & 15---Civil Procedure Code (V of 1908). Ss 9, 11 & 12-Ejectment proceedings---Landlord failing to establish relationship of "landlord and tenant; beyond reasonable doubt cannot be allowed benefit of affirmative finding on issue---Rent Controller need not go into disputed "question of titled" Leading of evidence by parties before Rent Controller, on issue of title not desired---Proper course for Rent Controller, in circumstances, would be to decide issue against landlord and advise landlord to get his title established from a Court of general jurisdiction before seeking ejectment---Such findings to be specifically recorded by Rent Controller in his order---Decision by Rent Controller and Appellate Court, High Court or Supreme Court not to operate as bar to suit to be filed by landlord in order to establish his title---Landlord can re-agitate matter before Rent Controller again and decision of Rent Controller taken earlier would not constitute res-judicata or preclude him from re- agitating matter before him once again."
7. In the light of this legal and factual aspect, as the very title of suit property is involved, therefore, landlord is directed to approach the civil court for establishment of his title. In the light of reasons mentioned above, petition is allowed. The impugned judgment and order of learned Courts below is set aside. Parties to bear their own costs.