' MAHMOOD AHMAD BHATTI, J.---Umar Hayat, the petitioner has filed this petition to question the legality of the eviction orders dated 13-7-2009 and 7-1-2010 passed by a learned Rent Controller, Multan and an Additional District Judge, Multan, respectively.
2. Succinctly put, the facts are that Muhammad Akbar, respondent No,1 instituted an ejectment petition against Fazal-e-Haq deceased in respect of a portion of House No,1245-C, situated in Ward No,8, Mohallah Mehmoodabad, contending that the respondent has been a tenant under him since December, 2000 at the rate of Rs,700 a month. The eviction was sought on twofold founds: that the tenant had committed default in the payment of rent from March, 2003 to June 2003, and that Fazal-e-Haq, the tenant had sub-let the demised premises.
3. Fazal-e-Haq entered appearance, filed a reply to the ejectment petition brought against him and admitted himself to be a tenant under Muhammad Akbar. However, he controverted the assertions of the ejectment petitioner regarding default in the payment of rent and subtenancy.
4. Umar Hayat, the present petitioner came to know about the pendency of the aforesaid ejectment petition, prompting him to make an application to be made a party to the ejectment petition. The same was allowed. As a result, amended ejectment petition was filed, arraying Umar Hayat as respondent No,2. He filed reply, claiming that Muhammad Akbar was not concerned with the premises in question; that he was in occupation of the house sought to be vacated in his own right. It was also alleged by him that the ejectment proceedings initiated against Fazal-e-Haq were collusive in nature, and were aimed at turning Umar Hayat out, under the guise of an ejectment order to be passed against him.
5. In order to resolve the controversy between the parties, the learned Rent Controller, Multan framed only one issue, which is reproduced hereunder:- "Whether Muhammad Akbar Khan the petitioner gave the property in question to Fazal-e-Haq the respondent No,1 on monthly rental of Rs,700 in turn gave the same on sub-tenancy to Umar Hayat?
OPA"
' The second issue related to the relief to be given to the ejectment petitioner.
6. It seems that having filed the reply to the ejectment petition, Fazal-e-Haq, the purported tenant did not take part in the proceedings vigorously or otherwise, leaving Umar Hayat to fend for himself. That is why he did not come forward to testify either against Muhammad Akbar or in support of the assertions made by him in the reply to the ejectment petition filed against him.
7. As it is, Umar Hayat had to fight the duel. He lost to Muhammad Akbar in that the eviction petition was allowed by the learned Rent Controller, Multan vide order dated 6-7-2006.
8. Umar Hayat preferred an appeal against the aforesaid order dated 6-7-2006, under section 15 of the Punjab Rent Restriction Ordinance, 1959, which was allowed by an Additional District Judge, Multan by the order dated 12-12-2006. In point of fact, he remitted the matter to the learned Rent Controller, Multan. At the same time, he recast the issues, putting the parties to trial on the following issues:--
(1) Whether the respondent No,1 is defaulter for non-payment of rent? OPA
(2) Whether the respondent No,1 sublet the disputed property, if so, to whom and with what effect?
OPR
(3) Whether the petitioner is estopped by his act and conduct to file this petition? OPR
(4) Whether the respondent No,2 is in possession of the disputed property in his own right on the basis of agreement dated 27-9-2001 for the reasons mentioned in his written reply? OPA
(5) Relief.
9. In post-remand proceedings, further evidence produced by the parties was recorded, but to no effect in relation to the present petitioner. Once more, ejectment of the respondents was ordered by the learned Rent Controller vide order dated 13-7-2009, holding that the relationship of landlord and tenant stood proved between Muhammad Akbar and Fazal-e-Haq and that Umar Hayat was a subtenant of Fazal-e-Haq.
10. Feeling aggrieved by the order of the Rent Controller, Umar Hayat, again, took the matter to the Appellate Court. However, he could not persuade learned Additional District Judge, Multan, who upheld the order of the Rent Controller, dismissing the appeal vide order dated 7-10-2010.
11. Against this backdrop, Umar Hayat assails the validity of the eviction orders passed against him, primarily on the ground that at heart was a dispute relating to the title to the property in question, and the questions involving title can be resolved only by a Civil Court after holding a full fledged trial.
' Sheikh Muhammad Rafiq Goreja Advocate, learned counsel for the petitioner concentrated on the lack of jurisdiction of the learned Rent Tribunal to proceed with the ejectment petition, elaborating that Umar Hayat had objected to the jurisdiction of the Rent Controller in his reply to the ejectment petition. In his amended reply, he set out the details as to how he along with his father-in-law, namely, Muhammad Ramzan are owners in possession of property measuring 10 Marlas bearing No,1308, situated in Mohallah Mehmoodabad, Multan. This property was owned by one Qutab-ud- Din son of Haji Moeen-ud-Din, with whom Muhammad Ramzan aforementioned entered into an agreement to sell dated 27-9-2001, and because of a restraining order passed by the Board of Revenue, Punjab, the sale-deed could not be executed. Be that as it may, two registered sale- deeds Nos.11614 and 11615 dated 2-12-2006 were executed by Qutab-ud-Din in favour of Muhammad Ramzan and Umar Hayat, by which the two vendees became owners in possession of land measuring 10 Marlas. To be exact, Umar Hayat, the present petitioner purchased 5 Marlas of land through a registered sale-deed No,11615 dated the 2nd December, 2006. Copies of both the sale-deeds were tendered in evidence as Exhs.R.3 and R.5.
' Since a Local Commissioner was also appointed during the pendency of the ejectment petition, his report dated 3-5-2005 was also exhibited in evidence as Exh.R.7. In substance, this report corroborates the stand of Umar Hayat.
' Sheikh Muhammad Rafiq Goreja Advocate, learned counsel for the petitioner grounded his submissions on the celebrated case of "Rehmat Ullah v. Ali Muhammad and another" (1983 SCM R 1064). He also made reference to the cases reported as "Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani" (PLD 1985 SC 1), "Junaid Rasheed and others v. Sultan Muhammad and others" (2000 SCM R 1525), "Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others" (2007 SCM R 818 at page 824) and "Sheikh Muhammad Khalid v.
Muhammad Rafiq Anwar" (2012 CLC 51).
12. Mirza Aziz Akbar Baig Advocate, learned counsel for Muhammad Akbar, respondent No,1 naturally supported the findings recorded by the forums below, besides adopting the reasoning given in the impugned orders. He advanced the argument that Umar Hayat had initially based his case on an agreement to sell dated 27-9-1991, which was not executed in his favour but was purportedly made in favour of Muhammad Ramzan, his father-in-law, as is reflected in Issue No,4 noted hereinabove but he kept on improving upon his stand. Subsequently, he came out with the two sale-deeds mentioned in the preceding paragraph of this judgment. According to the learned counsel, this fact by itself shows that Umar Hayat, the petitioner has no legs to stand on. He argued that the close reasoning of the learned appellate court cannot be faulted. He particularly banked upon the observations made in the appellate order dated 7-1-2010 to the effect that the rent deed dated 15-11-2000 executed by Fazal-eHaq in favour of Muhammad Akbar stood proved by the marginal witnesses thereto, in addition to the admission made by Fazale-Haq in his reply to the ejectment petition, that Qutab-ud-Din, the alleged vendor executing a sale-deed in favour of Umar Hayat was not examined and this reflected adversely on him, that rent deed is dated 15-11-2000, while the alleged agreement to sell is dated 27-9-2001 and as such is of a latter date. The same is true of the Sale-deed No,11615 dated 2-12-2006, which was brought into existence or procured just to sidestep the real issue and to perpetuate occupation of the premises in question. He also emphasized that the concurrent findings recorded by the competent Tribunal can not be interfered with and factual controversy is not to the appreciated in writ jurisdiction.
13. At this juncture, it is worthwhile to recall that Fazal-e-Haq, against whom the ejectment petition was filed in the first instance, breathed his last during the pendency of the appeal before the learned Appellate Court. Consequently, his legal representatives were brought on the record. In the instant writ petition, they have been arrayed as respondents Nos.2-A to 2-D. They were ordered to be proceeded ex parte on 18-3-2010, following the publication of a proclamation/citation in daily "Nawa-eWaqt" in its issue dated 2-3-2010.
14. I have given patient hearing to both the learned senior counsel representing the parties and gone through the record appended to the writ petition with their able assistance. I have also deliberated on/over all sides of the arguments presented. It seems to me that both the learned Rent Controller and Appellate Court, Multan did not address themselves to the real issue head-on.
Their circuitous reasoning made the confusion worse confounded.
' Muhammad Akbar, respondent No,1 had put forward the claim that he had inducted Fazal-e-Haq deceased into the premises bearing House No,1245-C, situated in Ward No,8, Mohallah Mehmoodabad, while the stance of Umar Hayat, the present petitioner, has all along been that he is not concerned with the property in question: he has nothing to do with it. Registered sale-deed No,11615 dated 2-12-2006 executed in his favour relates to Property No,1308/1-A, situated in the same Mohallah. It is pertinent to mention that Muhammad Akbar chose to file a rejoinder to the reply filed by Umar Hayat. In paragraph No,4 of the rejoinder, it was inter alia contended that {{URDU TEXT}} ' Having thus expressed, Muhammad Akbar had himself turned the issue into a title dispute.
Besides, it falls within the domain of a Civil Court only to adjudicate upon the questions of title and to determine the fraud, if any, having been perpetrated in securing a sale-deed. A Rent Tribunal is nott vested with any authority to go into the questions of title. It assumes jurisdiction only in cases where tenancy is admitted, but the landlord and even a tenant complains of the breach of the terms of tenancy and the Rent Tribunal is called upon to take cognizance of the grievance made under the tenancy and to pass an order in accordance with the prevalent rent laws. But this is subject to a rider: if a tenant frivolously and without any basis denies the relationship of landlord and tenant, and thus asks the Rent Tribunal not to take in hand the ejectment petition or proceed with the same, the Rent Tribunal shall not entertain any such false and unfounded pleas nor would it stay its hands.
15. The question raised in the instant writ petition came up for consideration before the august Supreme Court of Pakistan in the afore-quoted and well-known case of "Rehmat Ullah v. Ali Muhammad and another" (1983 SCM R 1064)". The relevant portions therefrom at page 1079, are reproduced hereunder:-- ---"Even when the tenant has not succeeded before the Controller to create the required "reasonable" doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same." ---"When the decision of the issue regarding relationship of landlord and tenant depends solely and not only incidentally on the question of the ownership and title to the property and it will not be possible for the Controller to decide the case without deciding the basic question involved regarding title, then in such like cases it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative. It has also been observed that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment."
16. The law was restated in the case of "Province of Punjab through Education Secretary and.
Another v. Mufti Abdul Ghani" (PLD 1985 SC 1) and reiterated in the judgment reported as "Junaid Rasheed and others v. Sultan Muhammad and others" (2000 SCM R 1525). Head note of this judgment may be reproduced advantageously:-- ..." S.11---Res judicata, principles of----Applicability---Dispute relating to title of property--- Appellants were in possession of the properties since long---Real dispute between the parties related to the title/ownership of the property---Such dispute could not be decided on the basis of different decisions taken under West Pakistan , Urban Rent Restriction Ordinance, 1959 as dispute relating to the title of the property could not be decided in rent proceedings or in appeals emanating therefrom---Principles of res judicata, therefore, were not at all attracted in the case of dispute relating to title/ownership of property."
17. In the face of the well-established law, both the Rent Controller and appellate Court overstepped their jurisdiction. Therefore, their orders are not sustainable, with the result that this writ petition is ALLOWED, and the impugned orders dated 13-7-2009 and 7-1-2010 passed by learned Rent Controller, Multan and an. Additional District Judge, Multan, respectively are declared to have been made without lawful authority and are of no legal effect, and they are hereby set aside.