ABDUL LATIF KHAN, J.---The appellant has filed the instant regular second appeal against the judgment and decree dated 22-06-2013 passed by learned District Judge/ Zila Qazi, Dir Payeen at Timergara, whereby judgment and decree dated 12-01-2013, passed by the Civil Judge-III/Illaqa Timergara, has been maintained.
2. Arguments heard and record perused.
3. A perusal of record reveals that Naeemullah, respondent filed an application for ejectment Under Section 13 of the West Pakistan Rent Restriction Ordinance, 1959 for ejectment of the petitioner from the shops situated in Hayat Market, Balambat Road Timergara. It was averred that the petitioner was inducted into possession of the shops as tenant vide deed dated 5-12-2003 and was served with notice to vacate the shops on 27-6-2011. The petition was contested by the present petitioner/ appellant by filing written reply, wherein the relation of landlord and tenant has been denied on the ground that wife of the petitioner/appellant, being real sister of the respondent is co-owner in the property and all the legal heirs of Arjumand Malak are entitled to their legal share in the suit property and petitioner of the ejectment petition has no "locus standi" to claim as landlord and seeks the ejectment of the petitioner from the suit shops. It was also averred that prior to the petition, the suit shops were in possession of another tenant, which was ejected on payment of Rs,3,50,000/-, which was paid by the petitioner and has made the improvements to the tune of lacs of rupees. It is also averred that the suit shops came in the share of wife of the petitioner after the death of predecessor of the applicant and wife of the petitioner, who are eight (8) sisters and three
(3) brothers and denied the execution of any rent deed with the respondent. Along with written statement pedigree table of Arjumand Malak, father of the respondents was also annexed, which is admitted, wherein three (3) sons and eight (8) daughters are shown as legal heirs of the said Arjumand Malak. The trial Court framed as many as eight issues including the issue No, 3 regarding existence of relationship of landlord and tenant between the parties.
4. The respondent has produced postman, who has brought receipt and posted as EX-PW-1/1, vide registered envelope No, 811 dated 28-6-2011 was mailed in the name of petitioner. The respondent has not entered in the witness-box in support of his petition rather opted to depose through attorney namely Wasimullah, who appeared as PW-2, who is the real brother of the respondent and his special power of attorney has been placed on file as EX-PW-2/1, which was objected by the petitioner being fabricated and frivolous one. Previously another person namely Aqal was attorney on behalf of respondent, however for making statement in the Court, Wasimullah, brother of the respondent has been attorned as such. He stated that he was also marginal witness of the rent deed dated 5-12-2003, which is posted as EX-PW2/2; however, it was also objected by the petitioner being fraudulent, collusive and illegal and deposed that vide Clause 7 of terms and conditions of the rent deed, as notice has to be served upon the tenant/petitioner, which mailed through registered letter No, 811 dated 28-6-2011, which has already been placed on file as EX-PW- 1/4 and A.D. Card to this effect was place on file as EX-PW-2/3. He stated that the suit shops required by the owner/respondent for his personal bona fide use. In cross-examination, he admitted that none has witnessed the notice allegedly mailed to the petitioner. Similarly, none has filed affidavit except Naeemullah, respondent. He also admitted in cross-examination that there is no documentary proof on file, which shows that Naeemullah is the sole owner of suit shops or the same has been given in partition to him by the other legal heirs of Arjumand Malak, the original owner, however, he added voluntarily that we have partitioned the property and the suit shops came in the share of Naeemullah. He also admitted that he is not in possession of any documentary proof even today regarding the existence of private partition between them, however voluntarily added that the private partition was orally made. He added that at the time of death of -his father, he was aged about 5/6 years. He also admitted that Mst. Nazneen, wife of the petitioner is his sister and she has also filed a suit for her " sharai" share out of the legacy of his father. He also admitted in cross-examination that Hayat Market i.e, the market where the suit shops are situated, Mst. Nazneen along with other sisters and mother have been given due share. Out of the legacy of his father. He also admitted that Mst. Nazneen is married to petitioner, Ileyas and she has been given her share in the manner that even today she has been receiving the expenses out of the income of suit shops. He deposed that numbers or boundaries of the suit shops are not given . In the ejectment petition. He also admitted that he is acquainted with the signature of Naeemullah, respondent and document EXPW-2/2 i.e, rent deed does not contain the signature of Naeemullah.
He also admitted that his name does not find mentioned with his signature on the said document.
He did not remember that when the suit shops were properly given to Naeemullah and similarly.
When he has given his share out of the suit shops to Naeemullah without any consideration. He voluntarily stated that his mother had given her share free of cost to Naeemullah. He was unable to show any receipt about the rent and deposed that previously receipts used to issue by us regarding rent and to this effect the entry made in register, but neither receipts nor register has been produced and admitted that no receipts available on file. He has admitted that no period has been shown in the rent deed. He also admitted that apart from him no other witness of ( ,41) dated 5-12-2003 has been produced by them. The petitioner has not been shown as defaulter by the respondent. He deposed that petitioner is his brother-in-law and the instant petition has been filed because he resisted whereas the other tenants in Noor market do not resist, therefore, we have filed no ejectment petition against them. He has admitted that Mst. Nazneen is their step sister.
Shah Anwar was examined as PW-3, who deposed in favour of the respondent, however, he was unable to mention the year of partition between the parties. He further stated in his cross- examination that father of the respondent died in the year 1997, who had partitioned the property amongst his children during his lifetime, however voluntarily added that a deed was executed, but no final partition was made. He also deposed that father of the respondent entrusted him with the duty that after his death the partition be made amongst his children in accordance with partition deed, which is available with Wasimullah, PW-2. He deposed that he has signed that will-deed, as the same will-deed was executed and got scribed in his presence; however, the same was not available before him at the time of deposing as witness before the Court. He stated that the said document has not been produced by Naeemullah because it is family matter and need not to be produced before the Court. He admitted that in "sharia" two daughters are equal in share to one son, he showed his ignorance about the partition of property by Arjumand deceased amongst his daughters and sons in accordance with "sharia". He stated that two shops in Hayat market for two widows and two shops for daughters were specified by Arjumand Malak in Hayat market, however, he cannot specify those shops nor can be pointed out. Similarly, he cannot specify the shops, which were given to Naeemullah, Wasimullah and Jahangir sons of Arjumand Malak, however stated voluntarily that disputed shops came into the share of Naeemullah, again stated that he is unaware about the partition of Naeemullah and Wasim. He deposed that in Hayat Market 10 shops are owned by Wasim but he is unaware about the share of Jahangir. He deposed that Mst.
Nazneen, wife of Ileyas petitioner has filed a suit for her legal "sharai" share and rightly did so, as she is entitled out of the legacy of her father Arjumand Malak. He deposed that Hayat Market has been completely given to Naeemullah and Wasimullah in their shares. He also deposed that he heard about this fact that a sum of Rs, 6,000/- was fixed as rent between the parties and petitioner used to pay through Mujibullah. He has also admitted that in both the markets owned by Arjumand Malak namely Hayat Market and Noor Market, their exist the shares of sisters and respondent. One Muhibullah was produced as PW-4, who has deposed that he collected the monthly rent of Rs, 6,000/-from the petitioner for about 20/35 times on behalf of Naeemullah. In cross-examination he deposed that he is sitting tenant of Naeemullah since 20 years and he is running a shop, wherein Naeemullah is also partner with him in the business. He was unable to show any proof regarding his status as rent collector on behalf of Naeemullah. He further deposed that he is unaware about the monthly payment of rent by the petitioner, as he casually collects the rent from him on behalf of Naeemullah and paid the same in the house of Naeemullah and never paid it to Wasimullah. He also admitted that he has never collected the rent from any other tenant in Hayat Market on behalf of Naeemullah.
5. The entire evidence produced by the respondent is deficient of the fact that respondent Naeemullah was the exclusive owner of the shops in dispute. Originally the shops were the ownership of Arjumand Malak, who had eight (8) daughters and three (3) sons. He has not came forward in the witness-box in favour of his petition, however, his attorney/brother stated that there is no documentary proof regarding the ownership of Naeemullah with him and even today while deposing as PW-2 in the Court, he was handicapped to produce the same. He was also unable to produce the ( ) on behalf of his father regarding the partition amongst his sons and daughters rather deposed to the extent that it was an oral partition and not reduced into writing, whereas PW- 3, who happens to be the brother of Arjumand Malak and uncle of the respondent deposed that the document was executed in the shape of and he has put signature over it and that document is in possession of Wasimullah, which is a grave contradiction between the witnesses and shows that it's an afterthought and just to exclude the legal heirs from their "sharai" share i.e, Mst. Nazneen, who happens to be the wife of Ileyas petitioner. The EX-PW2/2, the alleged rent deed was stated to be scribed on 5-12-2003, which is witnessed by two witnesses but none of them has been produced. Wasimullah, PW-2 deposed that he is also marginal witness to it but his name is not found mentioned on the deed and he has admitted in cross-examination that his name is not find mentioned, however he has put his signature and the other witness has not been proved and, as such, as the petitioner has denied the relation, therefore, it was boundan duty of the respondent to prove the rent deed by producing the marginal witnesses and a scribe in accordance with law.
Though EXPW-2/3, the notice was allegedly mailed through registered A.D. In the name Ileyas petitioner, which is neither the requirement of law nor carries any value, as it has not been proved; even the signature of Naeemullah has not found mentioned on the said notice and, as such, neither the ownership nor the relation as tenant and landlord exist between the parties, in light of the evidence produced by the petitioner. On the other hand, respondent/appellant, Ileyas deposed as PW-1, who has reiterated the stance taken in the written reply. He deposed that his wife has applied for implemented in the instant petition but was denied, therefore she has filed an individual suit regarding her "sharai" share out of the legacy of her father and that suit has been brought on file, which is pending adjudication before the civil Court. Personal bona fide need of the respondent has not been proved rather PW-4 deposed that he' is partner with him in the shop, which is being run by him, meaning thereby that he is already working as partner in a shop and it is in the evidence that he is in Spain, therefore, his personal bona fide need has not been proved as required under the law.
6. The question of relationship between the parties as landlord and tenant relates to the legal status of parties vice versa premises and nature of their relationship inter se are mixed questions to be decided in light of the evidence and the scanning of the evidence reveals that the respondent/applicant has failed to prove through cogent evidence his exclusive ownership, relation with the petitioner as landlord and his personal bona fide need. The bona fide need of landlord for his personal need of the premises in good faith has to be assessed in the light of evidence, which is lacking in the instant case. It was E obligatory upon the Rent Controller to frame preliminary issue regarding the relationship between the parties as landlord and tenant and in light of evidence produced by the parties the issue has to be decided in either way, as the relation has been specifically denied by the tenant. Adjudication of complicated question requiring protected inquiry is the job of Civil Court and has to be entrusted to the Civil Court, the Court of jurisdiction for its determination. The legislature has only regulated the relationship of landlord and tenant and provide a mechanism for ejectment of the tenant and other allied matters, meaning thereby the legislature by promulgation of Land Restriction Ordinance on one hand has permitted the ejectment of tenant only on the specified grounds and on the other hand it has kept in view the interest of the landlord. Grounds for ejectment have been specified Under Section 13 of the Ordinance clearly support the view, in other words the ordinance is meant to safeguard the rights of both the parties' i.e, landlord and tenant and to provide them remedy for resolution of any dispute arising between them and for this particular purpose to approach the Rent Controller, who being Persona Designata was required to decide the issue after applying judicial mind keeping in view the pleadings of the parties and evidence produced in its support. Mere assertion of the landlord is not to be considered, especially when his legal status is not clear and without clarity no order can be passed for ejectment in favour of the landlord. Similarly, title/ownership could not be decided by the Rent Controller, who has limited jurisdiction in the proceedings. The Court of appeal has dealt with the question of payment of an amount of Rs, 3,50,000/-to one Shah Zafar and despite observing that the record does not speak about the payment of monthly rent by the petitioner to the respondent, however a strange presumption has been taken that implicitly it conveys that monthly rent has been adjusted in the above amount, which is alien to law.
7. The Courts below have not decided the "Hs" pending before them with conscious and application of independent mind and, as such, the impugned orders are not sustainable.
For the aforesaid reasons, I allow this appeal, set aside the impugned orders and dismissed the ejectment petition filed by the respondent against the petitioner. Order accordingly.