' SYED AFSAR SHAH, J.- Impugned herein is the judgment of learned Additional District Judge-IX, Peshawar dated 31-3-2012 whereby appeal of the petitioner against the judgment of learned Rent Controller/Civil Judge-IX, Peshawar dated 13-1-2011 has been dismissed.
2. Succinctly, facts of the case are that on 27-5-2010 Mst. Soniya Sharif, the petitioner filed an ejectment petition against respondent No, 1 and two others in respect of Quarter No,4 situated at Street No, 1 Ashtafiya Colony, Peshawar on the grounds of wilful default in the payment of rent, personal bona fide and subletting.
3. The petition was contested by respondent No,1 inter alia, on the ground that he was owner of the suit premises, which was later on disposed of by him and hence has got no concern with the same and that there does not exist any relationship of landlord and tenant between the parties.
4. The learned Rent Controller, Peshawar after framing of issues recorded the evidence of the parties for and against dismissed the petition on 13-1-2011. Aggrieved from the same, the petitioner filed an appeal in the court of learned Additional District Judge-IX, Peshawar, which also met the same fate and hence this petition.
5. It is the contention of learned counsel for the petitioner that respondent No,1 in his written statement has admitted this fact that initially he was tenant under the petitioner but subsequently his wife purchased the suit premises from Mst. Ismat Begum vide mutation No,24270. He further added that the suit premises was later on alienated to Mst. Noor Begum vide mutation No,24831. He went on to say that both the courts below have failed to interpret the law in its true and correct perspective in so far as the difference between the landlord and owner is concerned. Developing his arguments, he added that the judgments of both the courts below are against the fundamental principle of the Constitution, hence liable to be set at naught.
6. As against that learned counsel for the respondents argued that since respondent Bashir Kundi (since dead) has already disposed of the suit premises much earlier, therefore, there was no relationship of tenant and landlord between the parties. He further added that no notice has been given to the tenant after the death of the father of the petitioner and in this view of the matter he added that question of wilful default does not arise at all and that the impugned judgments are based on cogent reasons, which require no interference by this court in its constitutional jurisdiction.
' We have considered the submissions of learned counsel for the parties and also gone through the record appended with the petition.
7. Appearing as PW-1, the petitioner Mst. Soniya Sharif has stated in support of her petition. She has stated about the demise of her father in the year, 1993 and also that of monthly rent at the rate of Rs,400/- per month, which was fixed at that time. When put to a question by the learned counsel for the respondents, she admitted that after the death of her father, their clerk, namely, Abdul Ghaffar was receiving the rent on their behalf. She has, however, admitted that no notice has been given to the respondent No,1 as he was not ready to make the payment of rent. Zeb Hassan, who has been examined as P.W.2, has stated in support of the version of landlady petitioner. During the cross examination he deposed that initially the respondent No,1 was paying the rent at the rate of Rs,300/- per month, which was received by her mother.
' On the other hand, Bashir Ahmad Kundi, respondent No,1 (since dead) has been examined as RW-1 and he has stated about the disposal-of the suit premises, firstly, vide mutation No,24270 dated 18- 8-2001 and subsequently in favour of Muhammad Ilyas/respondent No,2 on the basis of mutation No,24831 attested on 18-5-2002 by his wife. During the cross examination he has admitted that he was tenant of Muhammad Sharif father of the petitioner and as such was regularly paying the monthly rent to her mother or to their clerk. He went on to say that he was paying the rent to the petitioner till the death of her father.
8. From the evidence discussed above, one could reach to the safe conclusion that the contesting respondent No,1 has admitted the relationship of tenant and landlord but later on after the attestation of mutations, copies of which are available on the file, he has not only denied his relationship of tenant with the ,landlady but also set up a new story of ownership, firstly, in favour of Mst.Noor Begum, his wife and then Muhammad Ilyas/respondent No,2. So far as the impugned judgment of learned Rent Controller is concerned she has non-suited the petitioner solely on her failure to comply with the condition of section 13-A of the Ordinance .
9. Admittedly and as discussed earlier, the petitioner has admitted that she has not given any notice to the respondents but in this respect reference can be made to 1986 SCM R 751 where it has been held that if a notice under section 13-A was no served, that would not amount to absence of relationship of landlord and tenant. Rent not having been paid even after institution of application for eviction, which, was also treated as notice under section 13-A, hence the respondent were held liable to be evicted. Reliance was also placed on 2010 CLC 1941 Lahore.
10. Needless to say that a person even if not owner of property could be deemed to be landlord as he may be owner but not a landlord and similarly he may be landlord but not an owner. The courts ought to have looked into the relationship of landlord and tenant and should not go into the disputed question of title as it is the job of the civil court and not that of the Controller.
11. In view of the above, both the courts below have not attended to the matter in true perspective as highlighted in the upper portion' of this judgment, hence the impugned judgments are not sustainable in law.
' Accordingly, this petition is allowed and the impugned judgment of learned courts below dated 13-1-2011 and 31-3-2012 are set aside with direction to the respondents to hand over possession of the suit premises to the petitioner within a period of two months positively.