JAWAD HASSAN, J. This judgment shall dispose of WP No.56122/2017, WP No.56094/2017, WP No.561 16/2017, WP No.561 19/2017, WP No.56125/2017, WP No.56140/2017, WP No.49826/2017, as common question of facts and law are involved in these constitutional petitions.
2. Through this constitutional petition, the Petitioner has called in question judgment dated 26.05.2017, passed by learned Additional District Judge, Lahore, whereby he accepted the appeal and set aside the judgment dated 31.03.2016 passed by learned Rent Tribunal and directed the Petitioner to hand over the vacant possession of demised premises to the Respondent/ejectment petitioner . These at variance judgments have been assailed through this constitutional petition.
3. Arguments heard and record perused.
4. It is reflected from perusal of record that the Respondent No.1 is lawful owner/la ndlord of Property No.N.E.XI-7- S-53-A measuring 01 Kanal, 12 Marlas, 98 Sq ft. situated at Dilawar Steet, Chah Miran Sultanpura, Lahore. The tenancy inter-se the parties is an oral regarding two shops of aforementioned property since long at monthly rent of Rs.500/- for each shop which subsequently was enhanced to Rs.1950/- per month to be paid on 10 of every month to the Respondent No.1. The Petitioner committed default in the payment of rent from 01.05.2009 to 01.04.2010. The Respondent No.1 sought eviction of the Petitioner by filing an ejectment petition before learned Rent Tribunal, Lahore on the ground of default in payment of rent and on accoun t of building being in dilapidated condition was declared to be demolished by the Town Municipal Administration Shalimar Town, Lahore. The said ejectment petition was contested by the Petitioner by filing an application for leave to contest. On the pleadings of the parties, the issues were framed. The learned Rent Tribunal after hearing arguments and recording evidence of the parties, dismissed the ejectment petition vide order dated 31.03.2016. Feeling aggrieved, the Respondent No.1, preferred appeal before the learne d Additional District Judge, Lahore, which was allowed and impugnedth order was set aside vide judgment dated 26.05.2017. It was the case of the Resp ondent No.1 that the Petitioner had prepared a forged rent agreement.
5. In petition for leave to contest, it is the case of the Petitioner that property belongs to Rahim Bakhsh and the Respondent No.1 has no title in aforesaid property. In suit titled "Noor Masjid vs Fazal Ahmad", the ownership of Rahim Bakhsh, was admitted. The ejectment petition is supported by affidavits of Tanvir Ahmad (Exh.A/1) and Asif Kibriya (Exh.A/3).
6. During cross-examination, Tanvir Ahmad, Respondent No.1 stated that it is true that he is getting rent from Asghar Ali Petitioner , but he is not in memory the month and year. He further deposed that he has been getting rent at the rate of Rs.1950/- per month and at the time of receiving rent Asif and Pupo were also present there.
Regarding ownership, he asserted that he and his other brothers and sisters are owners of the suit property . From the cross-examination of Ch. Asif Kibriya, it is also discernible that the Petitioner had not paid the rent 12/14 months prior to the filing of ejectment petition and he did not go to get rent from the Petitioner but it was Tanvir who went to receive the rent. His statement otherwise, is inline with the statement of Tanvir Ahmad, Respondent No.1.
The testimony of Petitioner Asghar Ali while appearing as RW-1 is corroborative of the fact wherein he has stated that it is true that copies of sale deed in favour of Rashida Begum and sale deed in favour of Tanvir Ahmad (Respondent No.1) annexed with application for leave to defend were given to him by Iqbal. Both sale deeds were shown to him whereon stamp of court dated 30.09.2005 was affixed. The shop which is part of property , its Property Tax bears No.53-A. The Petitioner was shown receipt of property tax of Rs.33,750/- and was inquired whether his name is shown as owner in the receipt or otherwise, he replied that "He is in possession for the last fifty years and he has six brothers and four sisters". During cross-examination, the Petitioner further deposed that he is not in possession of documents regarding ownership of shop in dispute. He denied the suggestion that he is in possession of shop in dispute as tenant and also denied that he is paying rent at the rate of Rs.1950 since May, 2009 per month. He also denied the sugges tion that in view of sale deed Ex.A-III and Ex.A-VII, he is owner of the shop in question.
7. From the above said statement of the Petitioner , it clearly spelt out that he is not owner of the shop in dispute and in that eventuality the version of Resp ondent No.1 seems to be true that the Petitioner is his tenant and he has committed default in payment of rent. Further , the Petitioner has failed to prove his title over the property in dispute through any cogent and confidence inspiring tangible evidence. Further , to support the version taken in para-4 of the petition for leave to contest, the Petiti oner has not produced Raheem Bakhsh that he is owner of the property and he has rented out the same to him or he is tenant under him. It is also discernible from the perusal of record that the Petitioner while tendering his affidavit dated 16.04.2004 has sworn that he is tenant of Property No.A-53-S, he himself has to get it repair and got it repaired himself. There is no danger of its demolition and if it falls, he himself would be responsible. The learned Additional District Judge has rightly held that admitted facts need no proof, documentary evidence excludes oral evidence, the Petitioner is estopped from denying his status as tenant.
The Respondent/Ejectment petitioner averred and deposed as AW-1 that the Petitioner is tenant qua demised premises and the same has also been proved from the statement and affidavit sworn by the Petitioner, therefore, the Respondent No.1 has succeeded to prove relationship of landlord and tenant, when the Petitioner himself has failed to prove his title over the suit property . So for as the tenancy inter-s e the parties is concerned, the same is oral. The issue of oral tenancy is already settled by the Hon'ble Supreme Court of Pakistan in Ahmad Ali alias Ali Ahmad vs Nasar-ud-Din and another (PLD 2009 SC 453 ), wherein it has been held as under:- "In the impugned judgment the High Court has observed that the tenancy had not been created by the written instrument. This Court in case of Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45) has laid down that tenancy would not be necessarily created by written instrument in express terms, rather might also be oral and implied. In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in passion of premises would be considered as tenant under the law."
Further in "Shajar Islam vs Muhammad Siddique and 2 others" (PLD 2007 SC 45 ) it has been held as under:- "The determination of the pivotal question related to the legal status of the parties vis--vis the premises and the nature of their relationship inter se, would certainly be a mixed question of law and fact to be decided in the light of the evidence. The title of the petitioner is not as such disputed and in absence of any evidence in rebuttal, there would be a strong presumption of existence of tenancy between the parties.
This is settled proposition of law that a landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties.
However , in the normal circumstances in absence of any evidence to the contrary , the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily created by a written instrument in express terms rather may also be oral and implied."
In a recent case titled Standard Chartered Bank (Pakistan) Limited and others vs. Additional District Judge, Karachi and others (2016 YLR 1750 (Sindh)), it has also been held that No bar exists in creating tenancy either verbally or in writing and the only difference between the two is with regard to period for which default has to be counted.
8. In view of the above, it is established that a tenancy may not be necessarily through a written document and the same might be oral. However , the Punjab Rented Premises Act, 2009 (the "Act") does not debar entertainment of ejectment petition in case of oral tenancy . The palpable object of the law is to compel the parties to enter into a tenancy agreement within the purview and scope of the provisions of sections 5, 6 and 7 of the Act (read together).
Therefore, a penalty has been provided by the law for the breach of the obligati ons, envisaged thereby , in that, where the tenancy agreement is not so entered and registered and a landlord or the tenant approach the Tribunal for the enforcement of his right(s) under the Act, he has to pay a fine, the non-registration of rent agreement or oral tenancy is an irregularity that entails penal consequences. The said petition can be entertained subject to payment of fine as enshrined in Section 9 of the Act. Reliance is placed on Abdul Hamid Jalib vs Addl. District Judge, Lahore (PLD 2013 Supreme Court 775 ).
9. In this case, it is evident from the record that when the Respondent filed the ejectment petition, on the direction of the Court on 05.04.2010, he has deposited 10% of the penalty on 21.04.2010. Already held by Hon'ble Apex Court in the above said judgment. The relevant paragraph of the Apex Court judgment is reproduced as under:- "In my view Sections 9 and, when both are read together alongwith the provisions of Act, 2009 and the object and spirit of the said enactment, leads to no other reasonable construction of the two sections (white in interaction), that the landlord/tenant can bring the existing tenancies in conformity with the Act within two years period and in this regard Section 8 should be construed independent and insulated from Section 9 and applied only in time with the sole object of bringing the tenancy in line with the provisions of the said Act. But where the applicant/petitioner (landlord/tenant) wants to avail the remedy of that law (Act 2009), and exercise his right to enforce the duties of the opposite side, he shall be obliged to pay the fine as mentioned in Section 9 ibid as in the case of future tenancies; notwithstanding it is an existing tenancy or otherwise. In this behalf no exemption or moratorium etc. on the basis of two years period mentioned in Section 8 shall be available to him. And if the fine is not paid by the petitioner/applicant the fall out and the consequences of failure of the non- compliance as envisaged by Section 9 for the future tenancy cases, as has been prescribed above, shall be duly attracted to such petition(s)/application(s) as well."
10. It is a settled principle of law that once a tenant is always a tenant. During the subsistence of tenancy , tenant has no right to challenge the title of landlord. It is a settled proposition of law that a landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties. However , in the normal circumstances in absence of any evidence to the contrary , the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under Ahmad Ali case and Shajar Islam case supra. Once relationship of tenancy is proved; at once Article 115 of the Qanoon-e-Shahadat Order , 1984 (the "QSO") will come into play.
Reliance is placed upon AMIN and others vs HAFIZ GHULAM MUHAMMAD and others (PLD 2006 Supreme Court 549). The principle underlying Article 115 of QSO was considered at great length and inter alia, the Privy Council in case of Kumar Krishna Prosad Lal Singha Deo vs Baraboni Coal Concern, Ltd., and others( 1937 AIR (PC) 251) : (1937 (64) L.R. I.A.31 1) was also considered, with the numerous judgments such as Ahman Shah Muhammad v. Emperor (AIR 1937 Lahore 243), Krupasighu Routra and another v. Purna Chandra Misra and others (AIR 1973 Orissa 44), Muhammad Anwer through his legal representatives v. Abdul Shakoor (1982 SCMR 1120), Messrs Muhammad Ismail & Bros. V. Malik Muhammad Tahir and others (1981 SCMR 139) and (Ismail Brothers v . Keval Ram (PLD 1981 SC 545 ).
In view of the above, the learned counsel for the Petitioners has failed to point out any illegality warranting interference by this court in its constitutional jurisdiction. The writ petitions being devoid of merit are hereby dismissed. The impugned judgment and decree passed by learned Additional District Judge, Lahore is upheld leaving the parties to bear their own costs.