' ATIR MAHMOOD, J.---Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the predecessor of the present petitioner Ahmad Yar (since died) herein-after referred as petitioner challenged the impugned judgment and decree dated 28-6- 1999 passed by the learned Additional District Judge, Arifwala, Camp at Pakpattan Sharif, whereby the appeal filed by respondent No,2, the predecessor of the present respondents namely Sardaran Bibi ( since died ) here-inafter referred as respondent was accepted against the order dated 19-1- 1998 passed by the learned Civil Judge/Rent Controller, Pakpattan Sharif by which the ejectment petition under section 13 of the Rent Restriction Ordinance, 1959 filed by respondent No,2 was dismissed.
2. The main emphasis of the learned counsel for the petitioner while arguing the case is that the learned appellate court has exceeded its jurisdiction while passing the impugned judgment as it was none of its business to dilate upon the ownership of the property and it was the sole prerogative of the civil Court. No other point was raised. He has relied upon the case-law cited as Mst. Soniya Sharif v. Bashir Kundi through Legal Heirs and others (2013 M LD 1786) in order to substantiate his contention.
3. On the other hand, the learned counsel for the respondent supported the judgment of the learned appellate Court by submitting that no illegality has been committed by the appellate Court and this Court while exercising the constitutional jurisdiction cannot enter into the factual controversy. He has relied upon the case-law reported as (PLD 1974 SC 139).
4. Arguments heard. Record perused.
5. Record reflects that the ejectment petition was filed by the respondent against the petitioner for his eviction from the house fully described in the ejectment petition (here-in-after referred as the house) on the ground of bona fide personal need, default in the payment of rent of four months (September to December 1993) and damaged to the property. It was alleged in the petition that the respondent was the owner of the house vide registered sale deed dated 9-2-1976 executed by one Ghulam son of Inayat in his favour; the house was rented out to the petitioner in the month of January, 1993 @ Rs, 400 per month rent and rent of four months was paid in advance to the respondent and then payment of rent 6f subsequent four months was made but thereafter he defaulted in the payment of rent and four months rent was due till December, 1993. The tenancy between the parties was allegedly oral. The petitioner contested the ejectment petition by filing his written statement and denied the tenancy by alleging that respondent was not the owner of the house as it belongs to the father of the petitioner Ghulam (the vendor) who died in the year 1984.
He alleged that the sale deed in favour of respondent was result of fraud as the property was mortgaged to the respondent and it was fraudulently converted into a sale deed. According to the contents of the written statement the house was never taken on rent a year ago rather it was in possession of his father and after his death he along with other legal heirs is in possession of the same in his own rights. The learned Rent Controller framed the following issues:-- ISSUES
(1) Whether the relationship of landlord and tenant does not exists between the parties? OPR
(2) Order.
' The onus to prove this issue was upon the petitioner but from the record it appears that the respondent led her evidence prior to the evidence of the petitioner. In order to prove the relationship of landlord and tenant the respondent was under a legal obligation to prove her ownership as this factum was denied by the petitioner. She produced in evidence Malik Shahid Aziz as AW-1 stamp vendor/Vasiqa Nawees, who deposed that the stamp paper of sale deed was purchased in the name of Ghulam son of Inayat. In cross-examination he admitted that the writing of the document is neither his writing nor that of his father. AW-2 Abdul Rauf appeared who was a petition writer. He deposed that sale deed Exh.A-1 was written by him and was signed by the marginal witnesses in his presence. He further deposed that an amount of Rs,15,000 was received by the vendor Ghulam at that time and possession of the property was also handed over to Sardaran Bibi. In cross-examination he stated that he neither knew Ghulam personally nor SardaranBibi however he knew the witness Abdul Shakoor. He denied the suggestion that infact mortgage deed was prepared which was converted into sale deed in connivance with Sardaran Bibi and her husband. AW-3 Abdul Shakoor marginal witness of the document admitted his signatures on the sale deed as Exh.A-1/1. Cross-examination was also to the same effect as made upon the AW-3. Statement of AW-4 Muhammad Aziz was also on the same fact. All the above referred witnesses proved the factum of ownership of the respondent qua the house. Then AW-5 Muhammad Ali deposed in his examination in chief that about five years back the house was given to the petitioner on rent by Sardaran Bibi in the presence of her husband Aswaar Ali @ Rs, 400 per month and the rent of four months was given in advance. He deposed that the possession of the house was handed over to the petitioner by Aswaar Ali in his presence and the petitioner is in possession of the same as A tenant. In cross-examination he stated that no rent deed was written.
He denied the suggestion that the house was not taken on rent; the petitioner never paid advance rent of four months; that the petitioner is residing in the house since his father/grandfather were alive. AW-6 Muhammad Shafi also deposed in the same manner by categorically stating that the petitioner took over the property on rent from Sardaran Bibi in his presence as well as in the presence of Muhammad Ali AW-5. In cross-examination he stated that the rent deed was written between the parties. The respondent herself appeared through her special attorney Aswaar Ali as AW-8, who deposed that the house was purchased from Ghulam son of Inayat (father of the present petitioner) vide registered sale deed dated 9-2-1976. Thereafter, this property was given to the petitioner on rent in the year 1993. In cross-examination he denied that Exh.A-1 i,e, sale deed was not in the knowledge of respondent (ejectment petitioner). He further denied that the sale deed had fraudulently been prepared in the name of his wife. He denied that the house is not in possession of the petitioner as a tenant. Despite lengthy cross-examination nothing could be brought on record which could establish that the petitioner was in possession of the house in his own rights. In documentary evidence the respondent produced sale deed, sanctioned site plan of the property and copies of record of rights from the revenue department. Whereas the petitioner did not produce any witness except himself as RW-1 and deposed that the house in question is his personal property and he is in possession in his own rights and further that they are five brothers and one sister, who are all co-sharer in the house. He did not depose that there is no relationship of landlord and tenant between the parties. In cross-examination he admitted that there is no title document in his favour or in favour of his father. He also admitted that he has not seen the title document of revenue record in favour of his father. He denied that the house was sold in the year 1976 to the respondent. He stated that he is residing in the house independently and other brothers are residing separately. He stated that the house was given to Sardaran Bibi through a mortgage deed in his presence when all his other brothers were present. He deposed that the mortgage was made in the year 1970. He admitted that they never filed any suit for redemption of the mortgage deed. He stated that he has filed suit for declaration after the filing of the ejectment petition.
6. Perusal of the judgment passed by the learned appellate Court reflects that the entire evidence produced by the parties was thoroughly thrashed and the appellate Court came to the conclusion that there is a relationship of landlord and tenant as the petitioner failed to prove that his possession over the house is in his own rights as owner.
7. I am conscious of the fact that under the Rent Restriction Ordinance, 1959 the landlord is not to establish his ownership and a person who is not owner of the property may be termed as a landlord if he receives the rent but at the same time if any person who denies the possession as a tenant and claims himself to be the owner of the property the burden heavily lies upon him to prove that he is not holding possession as a tenant and accordingly the issue was framed in this regard. The evidence discussed herein above reflects that the respondent not only proved her ownership by producing sale deed as Exh.A-1 through production of marginal witnesses and scribe of the document: Their credibility could not be shaken in any regard. Then the witnesses of creation of tenancy, were produced and there credibility also could not be shaken but when the petitioner appeared as a witness he could not establish his possession of the house as his own. He neither could produce any documentary evidence nor any witness who could corroborate his statement. It is noted with care that even none of his brothers who allegedly were the co-owners in the house appeared to claim their ownership in the house.
8. Furthermore, during the course of argument it has been brought into the notice of the Court that the suit for declaration filed by the petitioner was dismissed by the learned Civil Court and appeal filed against the judgment and decree has also been dismissed. The learned counsel for the petitioner submitted that a revision petition is pending against the judgments and decrees passed by the courts below, I am afraid that the mere pendency of revision petition, where concurrent findings of facts are against the petitioner, is not helpful for the present petitioner in the rent proceedings. However, if there is any subsequent decree passed by the competent Court the petitioner may agitate his right in accordance with law. The case-law relied upon by the petitioner is quite distinguishable and not applicable in this case.
9. In view of the above discussion, I am of the considered opinion that the petitioner contumaciously denied the relation-ship of landlord of tenant and therefore the appellate Court rightly set-aside the order passed by the learned Rent Controller and accepted the ejectment F petition of the respondent. Learned counsel for the petitioner has not been able to point out any mis-reading and non-reading of evidence or jurisdictional defect. This petition being devoid of any force is hereby dismissed.