' SHAHID JAMIL KHAN, J. --- This order shall also decide FAO No, 52 of 2011 titled "Mst. Riffat Aftab v.
Muhammad Akbar" alongwith the captioned F.A.O. As both appeals arise out of two even dated (verbatim) orders, having similar facts and involving same questions of law.
2. As per facts; appellants in both appeals are real sisters and respondent is their brother. An ejectment petition was filed by respondent against the appellants on the ground of default in payment of rent. The appellants denied relationship of landlord and tenant. It was asserted that material facts were concealed by respondent; the appellants were residing at House No, 260-A R.A.
Bazar, Rawalpindi, which was undivided ancestral property of appellants and the respondent ("the ancestral property"). The respondent requested the appellants to shift into House No, 198-A, R.A.
Bazar, Rawalpindi (the alleged "rented premises"), in his exclusive ownership, as the respondent wanted to live in the ancestral property. The appellants agreed to shift and occupied upper and lower portions, respectively, of the alleged rented premises.
3. On divergent pleadings, following issues were framed;---
(1) Whether there exist relationship of landlord and tenant?
(2) Relief?
' Evidence was led accordingly. As documentary evidence Ex.P-3 (mutation of the premises), Ex.P-4 and Ex.P-5 (tax payment receipts) were produced by the respondent, besides submitting statements of two witnesses through affidavits i,e,, Ex.P-1 & Ex.P-2. The respondent himself and his witnesses were cross-examined. Both the appellants filed affidavits in evidence and were cross- examined by the respondent's counsel. However, no documentary evidence was submitted from appellant's side.
The Rent Controller after examining the evidence reached a conclusion that House No, 198-A is owned exclusively by the respondent and there was an oral agreement between the parties.
Ejectment petitions, therefore, were allowed vide separate but verbatim orders dated 28.04.2011, which are challenged, respectively, in both the appeals.
4. Learned counsel for the appellants submits that Trial Court failed to give due weight to the fact that the alleged rented premises was occupied by the appellants in lieu of the ancestral property, on the request of the respondent. He further submits that the respondent could not prove payment of rent, through any direct or substantial piece of evidence.
5. Learned counsel for the respondent has supported the reasons given in impugned order and submits that the appellants have themselves accepted that they are living in their brother's house.
Further argues that the payment of rent is proved from the oral evidence of PW-1 and PW-2 before the learned Trial Court. However, learned counsel was asked specifically whether any proof, other than oral testimony, regarding payment of rent was produced or appellants had admitted, anywhere, about payment of rent, after occupying the alleged rented premises on request of the respondents. His answer was in negative.
6. Heard, record perused.
7. Learned Additional Rent Controller, in impugned order, accepted the fact that the alleged rented premises was occupied by the appellants on the request of respondent and in lieu of vacating the ancestral property as co-sharer, therefore, the fact that rented premises was taken into possession as tenant is not proved. Even from the statement of the respondent, the intention of giving the premises on rent is not discernable. The statement is reproduced hereunder for better understanding:--- ' Only thing denied by the respondent was the ownership of the alleged rented premises to his sisters (the appellants). Evidence, discussed in the impugned order i,e,, Ex.P 3 to Ex.P5, relates to the ownership of respondent, which was not in dispute. No evidence (oral or documentary) to prove the relationship of landlord and tenant was discussed, in impugned order.
8. Findings of the Additional Rent Controller i,e, "Further the Respondent has also failed to disprove the version of the Petitioner" and "The Respondent has also failed to prove that she is residing at demised premises not as tenant" are against the basic principle on burden of proof under the law of evidence as enshrined in Art. 117 of the Qanun-e-Shandat Order, 1984, which is reproduced:- "117. Burden of proof. (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
[emphasis supplied] ' The application for eviction was filed by the respondent asserting that appellants were occupying the premises as tenant, which was denied by the appellants. Issue No, 1 was framed, without placing/noting burden of proof, which in itself is improper exercise of jurisdiction going to the roots of case.
' Nevertheless, under Section 117 (ibid) burden of proof to establish the relationship of landlord and tenant was on the respondent. Therefore findings, in impugned order, that 'appellant/respondent could not prove' is against the basic principle of the law of evidence, hence not sustainable in the eye of law. The Apex Court in Abdul Haque v. The State (PLD 1996 S.C. 1) has elucidate the principle in simplified way, saying:-
9. It is an admitted fact that the premises in question was taken into possession by the appellant on request of the respondent as he wanted to live irPhis father's house (the ancestral property). It is, therefore, established that relationship of landlord and tenant did not exist initially. The respondent failed to prove, during trial, that appellants started giving rent as a consideration for possession or occupation of the premises, hence the application for eviction was not maintainable or the Controller has no jurisdiction in the matter.
10. Under sub-section (2) of Section 17 of the Cantonmers Rent Restrictions Act, 1963 ("Act of 1963"); a landlord has to apply to Controller, if he seeks to evict his tenant, on the grounds mentioned thereunder. The Controller may pass an order of eviction after giving opportunity of showing cause against the application. This sub-section cannot be set at motion unless it is established before the Controller that relationship of landlord and tenant exists. The words 'landlord' and 'tenant' are defined in Section 2 of the Act of 1963, which are reproduced:---
2. Definitions.---In this Act, unless there is anything repugnant in the subject or context:-
(g) 'landlord' means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other persons, or as a trustee, guardian or receiver and includes a tenant who, being authorised under the terffis- of his lease so to do, sublets: the building and every other person for the time being deriving title from the landlord.
(j) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building by him or by any other person on his behalf, and includes: [emphasis supplied]
11. Payment of rent, in any kind, is 'sine qua non' for the relationship of landlord and tenant. The respondent has failed to bring on record any evidence to prove that appellants started paying rent thereafter; therefore, both the FAOs are allowed.
' The findings of Trial Court are reversed. The impugned order dated 28.04.2011 is set aside and the petitions for eviction filed by the respondent are dismissed. F.A.O. Allowed.