' MRS. SYEDA TAHIRA SAFDAR, J.--- The appellant Muhammad Ibrahim assailed judgment dated 25th October 2012 of Rent Controller/Civil Judge-II, Quetta whereby the eviction application filed by the respondent was allowed, and the appellant was directed to hand over the vacant possession of the premises in question to the respondent within a period of thirty days.
2. Brief facts of the case, as collected from the record, that the respondent claimed himself to be the recorded owner and landlord of a house (house in question) situated at Haji Noor Muhammad Dehwar Street, Quetta constructed on the landed property situated in ward No.29 Tappa Urban No.2 Tehsil City District Quetta, total measuring 20395 square feet. The house in question was asserted to be constructed on the land came in the share of Muhammad. Amin father of Niaz Muhammad (present respondent). The application was with the facts that the house in question was initially rented out nearly thirty years back to Noor Muhammad, father of the appellant. The appellant stepped in his shoes on his death, and gained the status of tenant at monthly rent of Rs.1500/- (Rupees fifteen hundred only) per month. The eviction was sought on the ground of default in payment of rent from May 2009, and requirement of house for the bonafide use of his (landlord's) son.
3. The appellant, whose status was described as tenant, in rejoinder raised several objections on maintainability of the eviction application, while denied existence of relationship of landlord and tenant between the parties. The appellant claimed his status as of owner of the house in question, asserted to be purchased from one Baz Muhammad son of Abdul Majeed in the year 1994 in sum of Rs.300,000/- (Rupees three hundred thousand only). An amount of Rs.150,000/- (Rupees one hundred fifty thousand only) was paid at the time of transaction, while the remaining amount was agreed to be paid at the time of effecting of mutation entries in his (appellant's) name. Execution of an agreement between the two was also asserted. The title of the respondent Niaz Muhammad and his father Muhammad Amin in respect of the house in question was denied, while the ownership of Baz Muhammad was asserted, who rented out the house in question initially to his father, and on death tenancy devolved on him (appellant).
4. The trial court. Framed issues on 03rd December 2011 to the effect: "1. Whether there exists relationship of landlord and tenant between the applicant and respondent?
2. Whether applicant is entitled for the relief claimed for?
3. Relief?
' The applicant (respondent) Niaz. Muhammad produced three witnesses, and recorded his own statement to substantiate his case. In rebuttal the appellant produced six witnesses and also recorded his own statement. . The trial court vide judgment dated 25th October 2012 determined existence of the relationship of landlord and tenant between the parties, thus there was an order for eviction of the appellant from the house in question within a period of thirty (30) days.
5. Learned counsel for the appellant was of the view that the main issue was of existence of relationship of landlord and tenant between the parties, which was not properly dealt with by the trial court. It was contended that the fact was ignored that the house in question never owned by the applicant/ landlord, while the fact of pendency of the suit for specific. Performance filed by the appellant was also not duly considered. It was further contended that according to the revenue record only an area of 700 Sq.Ft entered in the name of the applicant (respondent) through inheritance, which negated the plea taken by the applicant. He further stated that the utility bills showed existence of water and gas connection in the names of the appellant and his father, an affirmation of his right, but the documents produced were not properly assessed. The findings were without assigning any reason, thus of no legal effect. The learned counsel placed reliance on: ' PLD 1985 SC 1 Province of Punjab v. Abdul Ghani.
' PLD 1996 Quetta 296 No judgment available on referred page. 1999 SCMR 2058 No judgment available on referred page. CLC 2012 Balochistan 341 Kamaluddin v. Syed Muteebullah ' CLC 2012 Balochistan 890 No judgment found on the referred page.
' CLC 2012 Balochistan 1104 Liaqat v. Allah ud Din.
' The learned counsel requested that the case be remanded for the purpose of recording further evidence for a valid decision.
6. In reply the learned counsel for the respondent was of the view that the respondent was sole legal heir of Muhammad Amin, the previous owner, thus a valid title devolved on him. It was asserted that Muhammad Amin, father of the respondent, and Baz Muhammad were step brothers.
While the entries recorded in the revenue record were corrected, but inadvertently instead of inheritance the transaction was described as sale. It was contended that Baz Muhammad sold out all of his property in the area, but neither the appellant nor his father Muhammad Amin sold out any property in the area, thus this fact established a valid title in their favour.
7. The facts as collected from the eviction application and its reply that Niaz Muhammad claimed himself to be the owner and landlord of house in question, which was described through its boundaries: "On the eastern side of the house in question is a house, western side is a house, northern side is house and on the southern side is Haji Noor Muhammad Dehwar Street."
' While describing his (respondent's) title, a property consisting of 20395 Sq. Ft was referred while contending that the house in question was constructed by Muhammad Amin, father of the respondent (applicant), on an area of the referred land came in his share. The exact measurement of the house in question neither mentioned in the main eviction application, nor brought on record through evidence. Nor the share of Muhammad Amin was described in specific terms. In view thereof the basic requirement was to establish existence of the house in question on referred land, and status of Muhammad Amin as of shareholder, and the fact that on partition house in question devolved in share of Muhammad Amin, who rented it out to the appellant's father.
8. The initial burden was on the applicant/landlord (respondent) to establish his title as of landlord beside owner ship of the house in question within the meaning of Section 2(c) of the Balochistan Urban Rent Restriction Ordinance, 1959. He was required to further establish status of the appellant as of tenant within the meaning of Section 2(i) of A Balochistan Urban Rent Restriction Ordinance, 1959. Thus for the purpose there must be some evidence that the house in question was in fact owned by the respondent Niaz Muhammad, and rented out either to the appellant or to his father, and he (respondent) received the rent during all these years. The witnesses appeared for the applicant (respondents) Muhammad Ishaq Applicant's Witness No.1 (AW-1), Muhammad Qasim AW-2 though stated about the ownership of the respondent of the house in question, and the statues of the appellant as tenant therein, but none of them witnessed the occasion when the house in question was rented out either to the appellant or to his father or any rent was paid by the appellant to the respondent during all these years. Thus their statements were mere assertions without describing any specific occasion. It was noted that none of the witnesses were resident of the area; rather they resided in Saranan and Pishin respectively. No resident of the locality, where the house in question was situated, appeared to affirm existence of relationship of landlord and tenant between the parties.
9. On the other hand the appellant was with the assertion that the house in question was rented out to his father by one Baz Muhammad, and on death of his (appellant's) father Muhammad Noor in 1987 the tenancy devolved on him (appellant), and in 1994 he purchased the house in question from said Baz Muhammad. The utility bills produced and marked as an Ex-R/2 and Ex-R/3, were in the names of Muhammad Ibrahim and Noor Muhammad. Further, to establish the sale transaction between him (appellant) and Baz Muhammad, respondent witness No.5 (R.W-5) Gul Muhammad the Petition Writer, appeared and produced the agreement executed between Baz Muhammad and Muhammad Ibrahim as EX-R/4. This agreement described the status of Baz Muhammad as owner of the house. The extract from the Revenue record produced as Ex-R/5 and Ex-R/6 showed entries in the name of Baz Muhammad as owner. While RW-6 Naeem Shehzad described himself to witness the sale transaction between the appellant and said Baz Muhammad.
10. In view of the narrated facts this Baz Muhammad was the most important witness to unearth the reality, but he never appeared before the court, nor either of the parties made any effort to compel his attendance. The respondent in his affidavit mentioned nothing about Baz Muhammad, but during course of cross-examination only stated that {{URDU TEXT}} while Baz Muhammad was step brother of Muhammad Amin, father of the respondent. The appellant though admitted tenancy of Baz Muhammad, but not able to produce any specific evidence to establish that he entered into some sale transaction with Baz Muhammad, and on basis thereof gained the status of owner.
11. It is an established principle that once a tenant always a tenant, but in the described circumstances the initial burden was on the respondent (applicant) to establish his status either as of owner or of landlord of the house in question, to enable him to seek for eviction of the appellant. There was no document which could describe his (respondent's) status as of owner of the house in question. There was even no specific oral evidence stating payment of rent to the respondent by the appellant, or any other act on part of the appellant which determined his status as of tenant of the respondent. In addition there was nothing on the record to disclose ownership of Muhammad Amin, father of the respondent, of the questioned house, or any rent was ever paid to him (Muhammad Amin) by the appellant or his father as his tenant. The only rent receipt produced before the trial court, marked as Ex-A/2, also of less help to the respondent, as none appeared to affirm the payment in his presence, and issuance of receipt to the appellant by the respondent.
There was also no witness in whose presence the rent was ever demanded by the respondent (Niaz Muhammad) and denied by the appellant (Muhammad Ibrahim).
12. In view of the described circumstances the existence of some mutation entries in the Record of Rights in the name of the respondent, was of less benefit to the respondent in eviction proceedings, as unable to establish his status as of landlord and status of the appellant as of tenant in the questioned premises. In the stated circumstances it is always advisable for the parties to approach a court of competent jurisdiction to establish a clear title in their names to enable them to seek for eviction or possession, as the case may be, of the house in question. The trial court was not right to place reliance on the mutation entries, in absence of the evidence which could connect the parties with the house in question, in their status of landlord and tenant. The Honorable Supreme Court already determined the principle in like case in judgment recorded in case Rehmatullah v Muhammad Ali, reported in 1983 SCM R 1064. It was held by their lordships: "It has already been held that 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 case 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 issue established before seeking ejectment. The decision of main issue depends directly on the decision regarding title in the present case."
' In view of the above discussion the appeal is hereby allowed. The judgment of the trial court dated 25th October 2012 is hereby set I aside. Consequent thereto the eviction application filed by the respondent Niaz Muhammad stands dismissed. There shall he no orders as to costs.