' SADIQ HUSSAIN BHATTI, J.---Petitioner is aggrieved by the judgment dated 07.3.2012 passed by IV- Additional District Judge, Karachi, Central in FRA No,113 of 2010, whereby the FRA filed by the Petitioner was dismissed and the order dated 30.4.2010, passed by the V-Senior Civil Judge and Rent Controller, Karachi, Central in Rent Case No,814 of 2009 was maintained, whereby the rent case filed by the Petitioner, was dismissed.
2. Facts of the case in brief are that Petitioner filed a Rent Application under Section 15 of the Sindh Rented Premises Ordinance, 1979 against the Respondent, wherein it was averred that he was living in House No,R-1442, Muhammadi Colony, Azizabad, Block-8, F.B. Area, Karachi and the Respondent approached him for renting out the said house to her. The Petitioner agreed and vacated the house, which was in dilapidated condition and the Respondent constructed two rooms, bathroom and kitchen on the upper floor and constructed one floor and made some additions and alterations therein on the ground floor. The Petitioner moved to the upper floor and both the parties were living in the respective portions, while the shop was in possession of the Respondent.
According to the Petitioner, the said construction was made at a total cost of Rs,139,000/- and it was agreed between the parties that the said amount shall be adjusted against future rent, but the Petitioner hasialso returned a sum of 46,000/- to the Respondent arid the remaining amount was kept as securitY deposit. The Respondent paid the rent till April, 2008 and thereafter she stopped paying rent to the Petitioner. Petitioner approached the Respondent as he required the shop and the house for his personal need, but the Respondent refused to vacate the shop and the house, therefore, the Petitioner filed the Rent Case, which was dismissed as stated above and the Appeal also met the same fate, hence this petition.
3. Learned counsel for the Petitioner submitted that the trial Court dismissed the rent case without recording the evidence and the Appellate Court also ignored this fact and concurred with the trial Court by .Dismissing the FRA filed by the Petitioner. Fie also referred to the findings of the Courts below and submitted that same was erroneous and against the. Admitted facts. He submitted that no opportunity was provided to the Petitioner to prove his right over the property. He prays that the impugned orders may be set aside and the case may be remanded to the trial Court for recording evidence. In support of his contentions, learned counsel relied on the cases of (1) lqbal Shah v.
Abida Bi [1994 CLC 1891] and (2) Abdul Rashid Khan v. Muhammad Shoukat Hussain [1995 CLC 1708].
4. On the other hand, counsel for the Respondent supported the impugned order/judgment and stated that both the Courts below rightly dismissed the rent case as well as appeal, as there is no relationship of landlord and tenant between the parties. He also submitted that there are concurrent findings and this Court while exercising jurisdiction under Article 199 of the Constitution cannot disturb the findings of facts as the scope of powers of the Court under the said Article is very limited. He also argued that since there is dispute as to the existence of relationship of landlord and tenant, therefore, the jurisdiction of Rent Controller is barred as the Rent Controller cannot decide the question of ownership and the authority to decide such question vests in the Civil Court of competent jurisdiction. In support of his contentions, counsel relied upon the cases of
(1) Abdul Ma/id v. Mashkoor Ahmed 2013 YLR 1673], (2) Muhammad Lauf v. Additional District Judge [1993 M LD 1631], (3) Noor Muhammad v. Hajra [1985 CLC 2085], (4) Umar Hayat Khan v. Lnayatullah Butt [1994 SCM R 572] and (5) Adalat Khan v. Begum Bibi [1991 SCM R 1381].
5. Learned Rent Controller, while dismissing the rent application held as under:- "Admittedly, applicant has, no title documents in respect of demise premises through which he can sell the same. Mere execution of rent agreement does not create ownership right in the suit property. The applicant himself does not possess good title over the property, therefore, he cannot be said as landlord. The applicant being trespasser having bad title cannot file ejectment proceedings against person inducted by him as tenant."
6. Learned Appellate Court while dismissing FRA filed by the present Petitioner observed as under:- "Keeping in view the mentioned position above, I am of the view that the tenant is denying the relationship of landlord and tenant and to support its (her) assertions has presented some documents such as sale agreement and receipt etc., whereas the appellant being landlord has not presented any title documents about the subject matter and has only presented some utility bills and one undertaking allegedly executed by the respondent. From that aspect, it is clear that the appellant has not presented or annexed any document to controvert the assertions of the respondent and has not relied upon any cogent and concrete material, which could establish his legal and valid title over the suit property, so in such context, I am in agreement with the learned trial Court that mere execution of tenancy agreement with the respondent without any valid title could not establish any right of ownership over tenement so also relation as landlord and tenant between the parties, so in such circumstances, the respondent has not only created reasonable doubt against the title of appellant but also brought sufficient material on record to show that the appellant has presented his case without any substance and title documents."
7. A perusal of the above quoted findings of the trial Court as well as the Appellate Court, it reveals that both the Courts below have concurred that the Petitioner is not the owner of the demise premises, therefore, he cannot file a rent case. The Rent Controller has even held that "applicant has no title documents in respect of demise premises through which he can sell the same".
However, the Rent Controller has completely ignored the implication of this finding, which would also render the title ot Respondent, who claims to have purchased the said property from the Petitioner, as defective. The question, which comes up is why the Rent Controller believed the documents annexed by the Respondents with her written statement, while he completely ignored the tenancy agreement produced by the Petitioner. It is correct that "mere execution of tenancy agreement with the Respondent without any valid title could not establish any right of ownership over the tenement", but it will act as estopple against the tenant and the tenant cannot deny the ownership of a person with whom he has entered into a tenancy agreement on a subsequent stage unless he proves that the ownership challenged through a valid and legitimate transaction.
In this case, the Respondent claims that she has purchased the said property from the Petitioner.
Thus, she is admitting that Petitioner was the owner of the property and not a trespasser.
8. There is no dispute regarding the fact that Respondent was inducted in the said premises by the Petitioner himself, but whether as a tenant or as a purchaser is to be decided by the Court of competent jurisdiction.. Therefore, while holding the Petitioner to be a trespasser both the Courts below have ignored cardinal principle of law of evidence that admitted facts are not required to be proved as the Respondent himself admitted that the Petitioner was owner of the premises as she claims to have purchased the same premises from the Petitioner and, therefore, denied the relationship of landlord and tenant between the parties. However, this assertion proved one thing without any doubt in the eyes of the Respondent, the Petitioner was the owner of said property and, therefore, she purchased it from the Petitioner, but the Petitioner denies that he had sold the property to the Respondent and claims that he inducted the Respondent in the said premises as a tenant, therefore, there is no dispute between the parties with regard to the ownership of the demise premises at the time of induction of the Respondent therein, and, therefore, there was no need for the Petitioner to produce any document to prove his title over the property in question, but there is dispute between the parties as to whether the Petitioner, has sold the said property to the Respondent or not. The burden is upon the Respondent to prove that she has purchased the property in question from the Petitioner. This issue cannot be decided by the Rent Controller and can only be decided by a civil Court after recording evidence.
9. It is also to be decided that if the Respondent has entered into an agreement to sell with the Petitioner, although the Petitioner is denying the same, what would be its effect? Whether it would entitle her to retain the demise premises without paying rent or whether it would be decided after the decision of the suit for specific performance of contract and the Respondent would be treated as tenant.
10. Learned counsel for the parties have relied upon some judgments, which clearly laid down that Rent Controller cannot decide the ownership of the property, however, the Rent Controller has proceeded to decide the same in this case that, too, without recording any evidence. The proper course of the Rent Controller would have been to record evidence of the parties before passing any order. There is a plethora of judgments that mere execution of agreement to sell, which is denied by the other party, would not entitle the purchaser / tenant to occupy the property without paying any rent.
11. In view of the above discussion, the instant petition is allowed, consequently, the impugned order dated 30.4.2010 and judgment dated 07.3.2012 are set aside and case is remanded to the trial Court for decision afresh after recording the evidence of the parties. However, it may be ensured that the case may not be assigned to the same Rent Controller / Appellate Court, who have earlier decided the same in such a slipshod manner. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.