' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner assails the judgment dated 19-3- 2010 of the learned Additional District Judge, Daska District Sialkot accepting appeal of respondent No.1 against the order of the learned Special Judge, Rent dated 19-12-2009 whereby ejectment petition of the petitioner was allowed.
2. Brief facts of the case are that the petitioner filed an ejectment petition against respondent No.1 seeking his eviction from House No.1903, situated in Mohallah Darus Salam, Sambrial, District Sialkot, on the grounds of wilful default in payment of rent, bona fide personal need and causing damage to the property. Respondent No.1 put in appearance and filed his written reply in which he denied the relationship of landlord and tenant alleging that through an oral agreement to sell he had become owner of the demised house. Out of divergent pleadings of the parties, the learned Special Judge, Rent, Daska, framed necessary issues. Both the parties produced evidence in support of their respective claims. The learned Special Judge, Rent, vide order dated 19-12-2009 accepted the ejectment petition and directed respondent No.1 to vacate the demised premises within one month. Aggrieved respondent No.1 filed appeal, which was allowed and eviction order dated 19-12-2009 was set-aside, vide judgment dated 19-3-2010 of the learned lower appellate Court. Hence, the instant writ petition.
3. Learned counsel for the petitioner contends that the impugned judgment is illegal, unlawful and without jurisdiction; that while passing the impugned judgment the learned lower appellate Court has not applied its mind judiciously rather based its findings on surmises and conjectures; that findings of the learned lower appellate Court are contrary to law and facts on record; that the petitioner is one of the legal heirs/owners of the house in dispute and he was competent to file ejectment petition and it was not necessary to implead all the other legal heirs as party in the said petition as such findings of the learned lower appellate Court in this regard are totally erroneous and against settled law; that default in payment of rent was proved by the petitioner by production of cogent evidence, which was not rebutted from the other side; that pendency of civil suit qua determination of title of respondent No.1 over the house in dispute was not a ground to dismiss the ejectment petition when the petitioner had proved the relationship of landlord and tenant between him and respondent No.1; and that the impugned judgment is not sustainable in the eye of law and merits reversal.
4. Conversely, learned counsel for respondent No.1 contended that the learned lower appellate Court has not committed any illegality in passing the impugned judgment; that witnesses of respondent No.1 supported his version qua agreement to sell; that the documentary evidence fully supported the case of the respondent that he was occupying the house in dispute as an owner; that even A.W.2/Mudassar Imtiaz himself admitted in his cross-examination that respondent No.1 had made alterations in construction of the house in dispute from his own pocket; that civil suit qua title of the property is pending adjudication, therefore, the ejectment petition was not maintainable; and that the impugned judgment of the learned lower appellate Court does not suffer from any legal infirmity, which may be upheld.
5. Arguments heard. Record perused.
6. The respondent denied the relationship of landlord and tenant on the basis of oral agreement to sell. Keeping aside legal value of agreement to sell that it does not create any right, title or interest in favour of any person, very existence of the same is open to doubt. Respondent No.1 in his reply to the ejectment petition asserted that the petitioner entered into agreement to sell with him after the death of his father. On the contrary, during his cross-examination he took the stance that he entered into an oral agreement to sell with father of the petitioner. In reply he did not mention any amount of sale consideration, which was fixed or the earnest money paid at the time of entering the agreement to sell. In his cross-examination he stated that no earnest money was paid at the time of agreement to sell. On the other hand, admittedly the petitioner is one of the legal heirs of the deceased original landlord. Respondent No.1 in his suit for declaration against the petitioner on the basis of the said oral agreement to sell has taken the stance that he had paid the entire sale consideration. Be that as it may, in view of the fact that issue of title of the house in dispute is under adjudication before the competent forum, this Court is not inclined to give any comment lest it might prejudice the case of either side. The argument that during the pendency of civil suit ejectment petition was not maintainable has no force. Reliance in this regard is placed on the case of Ashraf Kiyani and others v. Mst. Hajira Bibi and others (1999 M LD 2821) in which it has been held as under:-- "Further Rent Controller is not bound in every case to dismiss the ejecment application as a matter of course only for the reason that the title of landlord has been challenged. In law a duty is cast upon him to evaluate the seriousness and intricacy of the issues. If he feels satisfied that the matter can be resolved on the basis of evidence/material before him, he should not dismiss the ejectment application and leave the parties to face the lengthy course of civil litigation."
' Respondent No.1 admitted in his affidavit that he was inducted in the demised premises as a tenant by father of the petitioner in 1998. Notwithstanding the fact that he had been denying relationship of landlord and tenant on the basis of an oral agreement to sell, as per settled law he should have first vacate the demised premises and then pursue his claim before the civil court for determination of his right of ownership. Unless and until he is held owner of the demised premises by the civil court of competent jurisdiction he has no right to occupy the demised premises and refuse to pay rent.
7. The learned lower appellate Court has exceeded its jurisdiction while recording the following findings qua title/ownership of the demised premises:-- ."The respondent appeared as AW-1 himself and deposed in cross-examination that since long, he has not visited his house which depicts that in fact, he has sold out the said house to the appellant but now he wants to fulfil his nefarious designs by filing such type of petition."
The learned lower appellate Court had no jurisdiction to decide the title of the parties itself and that too on the basis of mere assumptions and presumptions. The learned lower appellate Court has travelled beyond its jurisdiction while deciding the question of title of the demised premises.
8. The petitioner being one of the legal heirs of the deceased owner of the demised premises had every right to file ejectment petition against respondent No.1 and non-impleading of other legal hei -s was not fatal to the ejectment petition. Reliance is placed on the cases of Tanveer Akhtar Siddiqui and 6 others v. Qazi Naeem Jan and 10 others (1994 SCM R 1881) and Abbas Khan and 11 others v. Hafeez-urRehman and 2 others (2004 CLC 582). The findings recorded by the learned lower appellate Court are based on surmises and conjectures and offend the settled principle of law. As .Respondent No.1 had failed to bring on record any solid and cogent evidence to prove his title over the demised premises and his claim is yet to be proved by the Civil Court, in view of his admission for having been inducted in the demised premises as a tenant and having not paid due rent since 1999 the learned Rent Controller had rightly passed the eviction order against him.
7. In view of what has been discussed above, the instant writ petition is allowed. The impugned judgment of the learned lower appellate Court dated 19-3-2010 is set-aside and consequently the order dated 19-12-2009 of the learned Special Judge, Rent is restored.