' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---The appellants have assailed the judgment dated 16- 11-2012 passed by Judicial Magistrate, VII cum Rent Controller, Quetta, whereby application filed by ( applicants) appellants under section 13 of the Balochistan Urban Rent Restriction Ordinance, VI of 1959. (the "Ordinance") for evictift of respondents had been dismissed.
2. The succinct facts out of which the instant appeal arises are that appellants were claiming ownership over the house bearing No,5-11/819-5 (the house in question) situated at Motiram. Road, Quetta, which was rented out by their predecessor-in-interest to the predecessorin-interest of the respondents Nos. 1 to 3, against a monthly rent of Rs,1000. But after April, 2007 the rent was not paid by respondents. Since the appellant's present dwelling were not sufficient for their personal bona fide requirements. The respondents Nos.1 to 3 had sublet the house in question ,to respondents Nos.4 to 7. Thus, on account of wilful default in payment of monthly rent, personal bona fide requirement and on account of subletting, ejectment of respondents was sought.
3. The respondents in their rejoinder had controverted the plea on the strength of certain legal objections in respect of maintainability of eviction application, such as, locus standi of appellants being hit by the principal of Estoppel and on limitation. The categorical denial in respect of existence of any sort of relationship of tenant and landlord had been introduced.
4. Out of the pleadings of the parties the following issues were framed by the trial court.
"(1) Whether the eviction Application is not maintainable in view of PLO's 'B', 'C, E ' and 'F'?
(2) Whether there exists relationship of landlord and tenants between the parties?
(3) Relief?".
5. In support of their plea, two oral witnesses namely, Tariq Aziz and Dukhan, three official witnesses, the representative of Tehsil Quetta, the representative of Police Station Gwalmandi Quetta and the representative of Civil Nazir of District Courts, Quetta were produced by the appellants. While, the respondents had produced two oral witnesses namely Rahim Shah and Najeebullah, two officials, the representatives of National Bank Industrial Area Branch, Quetta and the representative of Saddar Qanungo, Quetta along with record of Jamabundi of house in question were produced.
6. The learned trial court on completion of trial had passed the impugned judgment, which had been assailed in the instant appeal.
7. Mr. Mujeeb Ahmed Hashim, learned counsel for the appellants, contended that the ownership of appellants is proved through cogent and reliable evidence. The abstract of Revenue Record and counter file of rent receipts are sufficient to satisfy the requirement of prudence in respect of relationship of the parties. The respondents have been depositing a rent of the house in question in Civil Court deposits, (C.C.D A/C) due to litigation between the appellants and their relatives.
' Thus, in view of principle of rent laws, where once a tenant is always a tenant, the respondents had no occasion to have denied the relationship of tenant and landlord. The glaring contradiction between the testimonies of the respondents' witnesses were sufficient to prove that plea of denial of relationship was afterthought was made just to prolong the litigation. He urged that learned rent controller had miserably been failed to deal with the lis in view of the law laid down on the subject by the Hon'ble apex Court, therefore, appeal is liable to be accepted consequent upon acceptance of eviction application with direction to the respondents to surrender the possession in favour of the appellants.
8. Mr. Masoom Khan Kakar, learned counsel for the respondent strenuously opposed the contentions and diverted the attention of the court towards the pleadings of the appellants and evidence produced by them. The contentions in the application were at variance from deposition of witnesses. In eviction application, the house in question was shown to have been rented out to the predecessor-in-interest of respondents Nos. 1 to 3 in the year 1995, and pleaded that till April, 2007, he was paying the rent of house in question. The said predecessor of the respondents Nos.1 to 3 was not alive in the year 1995, as according to his last payment receipt of pension dated 1-1-1990 produced by the representative of the Bank, showed that the said person had died in the year 1990..After filing of rejoinder to the eviction application, despite having come to know about the death of the predecessor of the respondents Nos. 1 to 3, though the title of the eviction application was amended but the pleadings remained same and no permission had been sought for amendment. He referred to the counter file of the rent payment receipts pertaining to year 2000 and 2001, produced by appellants when the rent was being paid by means of depositing the same in civil court deposit accounts (C.C.D A/C). The appellants could not produce the counter file of rent deposit receipts prior to the year 2000 and subsequent to year 2001. He reiterated that the Civil Nazir, who appeared as AW-5 was appellants' witness. The said testimony had diminished the whole case of the appellants. If respondents were depositing a rent in C.C.D account then there was no occasion for the appellants to have asked for payment of rent. The principal of once a tenant always a tenant, does not apply in the respondents' case because the respondents might be tenant of whosoever but not of the appellants and no any single penny had ever been paid to the appellants in lieu of monthly rent. He stated, that rent controller under the Ordinance, 1959 does not enjoy the jurisdiction to decide the matter, where the title is, shrouded in mysteries thus the eviction application had rightly, been rejected and the subject appeal is liable to be dismissed.
9. I have considered the contentions of both the counsel for the parties in the light of available record. The contention on behalf of the appellants could not find support from record. The representative ,of Saddar Qanungo, Quetta was summoned on application of hie respondents, who had produced the Jamabandi record of the house in question, wherein the name of one Noor Ahmed appears in the column No,5 of ownership, while Column No,7 pertaining to tenant or Bazgar shows, the name of Ata Murtaza, the predecessor-in-interest of respondents Nos.1 to 3. The said record had been compiled in the year 1985. It is surprising that the appellants were pleading that the house in question was rented out in the year 1995 to the said tenant who had died A in the year 1995. The attorney of appellants in reply to question No,8, of cross-examination, stated that prior to years 1995 the house in question was vacant. Be that as it may, if the house in question was vacant before the year 1995 then how could the name of father of 'respondents Nos.1 and 3 was entered into the settlement record (jamabandi) of year 1985.
10. Another astonishing aspect of the case is that if the appellants had rented out the house in question to the predecessor-in-interest of respondents Nos.1 to 3 in the year 1995. The eviction application was initially filed on 10-3-2011, and till that date the appellants were unaware about the death of their tenant. Further the eviction application to the extent of title was amended and filed on 25-3-2011, but the para No'.2 of the said application remained the same and showing the same facts as in the first eviction application. Had the predecessor-in-interest of respondents Nos. 1 to 3 been remained tenant of the predecessor-ininterest of the appellants, but astonishingly they were not aware of his death, the plea of the appellants has further diminished; when a document in respect of last payment of pension amount shows that the said payment was made on 1-1-1990 and thereafter the said persons was no more alive. The appellants had produced representative of Tehsildar Quetta but instead of abstract of revenue record, which would have shown the ownership of predecessor-in-interest of appellants, only a copy of Fard was produced. While the record summoned and produced by the respondents showed that one Noor Ahmed son of Abdullah Jan was a recorded owner of the house in question.
11. The learned counsel for the respondents had also produced a copy of judgment and decree dated 24-10-2003 passed by Senior Civil Judge-I Quetta in Civil Suit No,70 of 2003, which shows that the daughter namely Mst. Sadia of the original owner was in litigation with father of the appellants, their paternal aunts and appellants Nos. 2 and 3 were defendants Nos. 5 and 6 in the said suit, wherein the suit property was decreed in favour of daughter of owner/landlord of respondents. The legal heir of original owner was in litigation with appellants, therefore respondents were depositing monthly rental in C.C.D A/C, and thus the same could not be paid to the appellants in the year 2000 and .2001, which fact leads to negation to the appellants' version.
The case of the appellants is totally silent that when they were not legal heirs of said Noor Ahmed, how, they had become entitled for getting inheritance entry in their favour.
Although, these questions relate to the jurisdiction of the civil court, which under the provision of the Ordinance 1959 need not to be attended in view of the jurisdiction of rent controller. Since the appeal is continuity of the main application, therefore, any further observation on this aspect might prejudice the case of either party. However, the question cannot be left in vacuum and is to be attended in view of a dictum laid down by the Hon'ble Apex Court on the subject. Reliance in this behalf is placed on a reported judgment in Rehmatullah's case, 1983 SCM R 1064.
12. As far as the oral evidence of both the parties are concerned the said testimonies are of no avail to either of them. Both sides had made glaring contradictions, yet certain documents were produced from both sides, which if kept in juxtaposition would reveal that the defense of respondents was more plausible as compared to the contention of the appellants.
13. The facts and circumstances of the case in view of the discussion made herein above the judgment dated 16-11-2012 passed by the learned Rent Controller is unexceptional and does not warrant any interference by this court and it would be more appropriate for the appellants to approach the court of civil jurisdiction for determination of their title if so advised.
Thus for the foregoing reasons appeal is hereby dismissed but with no order as to costs.