FAHIM AHMED SIDDIQUI, J.----This is a constitutional petition, where by the petitioner challenged the impugned judgment dated 24.12.201 1 passed by the learned Additional District Judge-II Larkana. By pronouncing the said judgment in First Rent Appeal, the learned Additional District Judge set-aside the order dated 14.01.201 1 passed by the learned Rent Controller-III, Larkana. The learned Rent Controller has allowed the Rent Application filed by the petitioner against the respondent No. 1. Now there are divergent findings of two Courts below; therefore, I am going to ascertain the correct legal and factual position and its ef fect by deciding the instant petition.
2. The factual milieu of the case is that the petitioner presents himself as the owner of the premises. The title documents of the property are in the name and possession of the petitioner . The petitioner claims that the respondent No. 1 is his tenant in the said property since 01.03.2007 for month ly rent at the rate of Rs.3000/- through a rent agreement executed between the parties for a period of 11 month s. As per rental agreement, the petitioner received an amount of Rs.10,000/- from the respondent No.1 as advanc e, which is returnable at the end of tenancy . It was agreed between the parties that the amenities charges would be borne by both the parties equally . According to rent application filed before the learned Rent Controller , the respondent No.1, after expiry of the tenancy period, discontinued the payment of rent by claiming that he is the co-sharer of the property in question. It is also mentioned in the rent application that the respondent No.1 kept the petitioner on false hopes and requested him to settle the matter before notables of the locality . It is also alleged in the rent application that the respondent No.1 and his relatives attac ked upon the petitioner party for which a criminal case being FIR No. 207/2010 was lodged against them.
3. In his written statement, the respondent No.1 denied all the allegations leveled in the rent application and he continued to claim that he is a shareholder in the property in question; as such he is not required to pay rent. He also denied the execution of a rent agree ment and has specifically denied the relationship of landlord and tenant between the parties. In his objection/ written statement, the respondent No.1 also claimed that he had been residing in the premises in question since the last 25 years. He mentioned in his objection/ written statement that the petitioner is his cousin (Maroot) and alleged that the petitioner is a trouble creator, regarding whom he had filed a constitutional petition regarding harassment. He admitted the lodging of FIR by claiming that the same was false and has been disposed of in false "B" Class.
4. The parties have filed their respective affidavits-in-evidence and subjected to cross-examination before the tribunal. After examining the evidence of the parties and documents produced during evidence, the learned Rent Controller decided the rent application in favour of the petitioner . However , as explained above, the learned Appellate Court came to a divergent view and declared that the relationship of landlord and tenant is not established; as such the First Rent Appeal filed by the respondent No.1 was allowed. The petitioner is seeking revision of the finding of appellate Court in the writ jurisdiction, as no other alternate remedy is available to him.
5. In support of his case, the learned counsel for the petitioner preferred his arguments at length. According to him, the petitioner , being an applicant in the rent case, has established default before the tribunal successfully . He submits that the learned Rent Controller framed two important points of determination pertaining to relationship of landlord and tenant as well as question of default. According to him, the learned Rent Controller has exhaustively discussed both the points in the backdrop of evidence produced before him and he had rightly reached to a fair conclusion regarding relationship and default in favour of the petitioner . He submits that the respondent No.1 claims he is co-sharer but he remains failed to establish his case. He submits that the petitioner has produced documents showing ownership of the premises in his favour , but the respondent No.1 could not produce any document to establish his point of view. He Submits that whatever the documents produced or filed by the respondent No.1 before the learned Rent Controller or even produced before this Court in the instant petition under a statement, ale all photocopies, which are inadmissible. He submits that although the respondent No.1 filed an application under Order XLI, Rule 27, C.P.C. for additional evidence but no additional evidence was produced before the Appellate Court in First Rent Appeal. In response to a query , he submits that the learned Appellate Court has not given any opinion about additional evidence, as the said application was not decided by the Appellate Court. He takes reliance from 2000 CLC 1841 , 2005 YLR 349 and 2017 MLD 770 .
6. The learned counsel for the respondent No.1 submits that the case of the petitioner before the learned Rent Controller is full of contradictions. He submits that there are so many self-contradictory statements in the rent application, supporting affidavit as well as affidavit-in-evidence. He points out that the survey number given in the rent application is also distinguishing to the actual survey number . He refers different portions of affidavit-in- evidence of the petitioner and cross conducted upon him and his witnesses. According to him, in the rent application it is mentioned that the alleged rent agreement was executed in February , 2007, while it has come in the deposition that the same was executed in March, 2007. He submits that it is the duty of the petitioner to establish his rent agreement and other vital points of his case, in which he miserably failed as such he deserves no relief. Regarding non-production of the original documents, ha submits that some of the documents are in possession of the petitioner while the remaining documents were traced out at a later stage; therefore, the same could not be produced. Regarding submission of certain documents first time in the instant petition, his contention is that as soon as the same are traced out, they are filed on different dates of hearing under the statement of lawyer . He submits that being a Constitutional Court, this Court is fully competent to take inference from those documents, which were not produced before the learned Rent Controller . He submits that the NIC of the respondent No.1 and other documents indicate that the respondent No.1 is residing within the said premises since last 25 years. He emphasizes that the premises are actually a joint property in which the respondent No.1 also having share; as such he cannot be treated as tenant. He points out that the respondent No.1 and his other siblings have filed a Suit No.24/2013, which is pending adjudication. He relies upon 2001 SCMR 1434 , PLD 2006 Lahore 48, 2006 CLC 571 and 2007 SCMR 1961 .
7. The learned State Counsel submits that the dispute between the parties is of private nature in which the state has no interest.
8. I have scanned the entire record availa ble before me in the light of able submissions of the learned members of Bar appearing for the parties. It is the case of the petitioner that he is the owner of the property and presently records of rights stand in his favour . It is the case of the petitioner that he entered into rent agreement with the respondent No.1 in the month of February , 2007. The rent agreement was executed in presence of two marginal witnesses namely Muhammad Rafique and Riaz Hussain. It is worth mentionin g that the respondent No.1 is denying the execution of the said rent agreement. However , the respondent No.1 could not produce anything while denying the execution of rent agreement to establish his right of occupation of the premises in question. Even he could not produce any witness before the tribunal to verify his contention regarding his status in the property as shareholder .
9. It is worth mentioning that the petitioner has not concealed the core dispute created or claiming by the respondent No. 1. However , he is emphasizing that the respondent No.1 is his tenant. No doubt, the respondent No.1 is denying the relationship by claiming he has right over the property as shareholder but he could not produce anything before the learned Rent Controll er or even the Appellate Court to substantiate his claim. It is the admitted position that the respondent No.1 is occupying the premises. Mere claim on his pact that he is co-sharer is not sufficient. It is obligatory for him to establish his right of occupation before the learned Rent Controller . If he claims that he is one of the shareholders in the premises, then he has to bring forwar d his claim with cogent reason supported by document and his pedigree to establish his right over the property in question. It is worth mentioning that the respondent No.1 has not produced any document in respect of such claim, as such at this stage the same cannot be considered. As far as filing of a suit by the respondent No.1 regarding this issue is concerned, the same cannot be a ground for disposal of a rent application in his favour . Although, the respondent No.1 has denied the relationship but at the same time he could not reason it out that how he is in possession of the premises in question. It is a fact that the responden t No.1 could not produced any document regarding his claim over the premises, which is averse to the petitioner . The respondent No.1 admits that he is in possession of a portion of the premises since long but he could not substantiate his right of possession A and he has no title document in his favour or possession then the respondent No.1 by fiction of law will be considered as tenant. Similar view has been taken by this Court in the case reported as Saifullah and others v . Ch. Ghulam Ghou. (2000 CLC 1841 ).
10. The respondent No.1 .has not produced evidence before the tribunal regardi ng his claim of co-sharer in the property in question. He tried to bring some additional evidence by filing an applic ation under Order XLI, Rule 27 but the said application was not disposed of by the appellate Court bellow . The learned counsel for the respondent No.1 has filed in the instant petition under statement of his counsel photocopies of certain documents like domicile certificates, bank receipts; plaint of F.C. Suit No.24 of 2013 etc. However , these documents were not filed before the tribunal as well as lower appellate Court. Besides from these documents, at the most it can be said that the respondent No. 1 is residing in the present premises since sometime back and he has now initiated a civil suit against the petitioner for declaration, cancellation of documents and entries in record etc. I am of the view that by filing these document and even by initiating a civil suit, the status of respondent No.1 will not be changed. As far as non-disposal of the application under Order XLI, Rule 27 is concerned, the same will not make any difference. It is a fact that giving permission of additional evidence is a discretion of the Court and non-disposal of such application transpires that the appellate Court did not use the discretion in favour of the respondent No.1. In this respect, I would like to take reliance from a case of this Court reported as Rafique Ahmed v. Ashok Kumar and 5 others (2017 CLC 317 ) wherein it is held as: "Under Rule 27 of Order XL1, C.P.C., additional evidence cannot be recorded unless provisions of the said Rule are attracted; the power to allow additional evidence is discretionary in nature, but the same is circumscribed by the limitation specified in the said Rule as evidence under Rule 27(b) of. Order XLI is required by the appellate Court itself and not by a party to the appeal."
11. The petitioner during cross-examination deposed that he became the owner of the premises in the year 2004 when he purchased half of the share in property from his uncle. He denied the suggestion that he had 40% share in property while 40% share belonged to his uncle and 20% to the mother of respondent No. 1. He categorically denied that he had any paternal aunt. In this way, he denies the existence of any relationship with the mother of the respondent No. 1. On the other hand, the respondent No.1 claims that he is the co-sharer through his mother Jameela Begum. However , he could not establish the relationship of the said Jameela Begum with the petitioner through any credible evidence. Even it has also come on the record that the father's name of the respondent No.1 and the husband's name of the said Jame ela Begum are different. During cross-examination, the respondent No.1 tried to reason it out by submitting that her mother Jameela Begum contracted seco nd marriage. It appears that the respondent No.1 is willing to continue his occupation of the property in question by preferring claim of co-ownership through a woman, who might be the mother of the respondent No.1 but her own right over the property is dubious.
In such a situation, the respondent No.1 would not be allowed to continue his possession by preferring such a dubious and hesitant claim of co-sharer .
12. Another aspect of the case is conside rable. The petitioner has deposed that after purchasing the share of his uncle in the year 2004, he became the full and absolute owner of the property in question. The. respondent No.1 remained silent since then, for which no explanation is given by the respondent. It appears that the respondent No.1 claimed that he had relation with the petitioner through his mother but the petitioner denied even existence of any sister of his father . The respondent No. 1 could not produce any convincing evidence to establish that the father of petitioner has one brother and one sister . He remained fail to reason out how and under which capacity he is in possession of the premises in question. It would also make no difference that the respondent No.1 has initiated a civil proceeding by filing some suit in respect of establishing his right. As long as, the respondent No.1 is not succeeded in establishing his right before the competent Court of law, his statu s shall remain be a tenant. If the respondent No.1 will be succeeded in getting any relief from the competent civil Court, he may seek possession of the property in question under the decree so obtained. However , mere pendency of a civil suit is not a ground for refusal of the ejectment of a tenant. In this regard reference can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Iqbal v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012 ); Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877), Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320) and Maqbool Ahmed Siddiqui through Attorney v. Khaliq lqbal Zuberi and 3 others (2017 YLR Notes 21 1).
13. However , as a rule of abundant caution, I have no hesitation in reiterating the legal principle that the learned Rent Controller is a tribunal of limited jurisdiction pertaining to eviction and relationship of landlord and tenant, as such as adjudication given by a Rent Controller can never be equated to a Court of general jurisdiction. The respondent No.1 has already approached to the civil Court in respect of his claim of share in the property in question, which is the proper forum to decide the intricate factual dispute; therefore, any observation given or, finding recorded by any forum would not in any manner prejudice the respondent No.1 in establishing his right and seeking any relief from a civil Court. With these observations, the instant constitution petition is allowed and the impugned order/judgment passed by the lower appellate forum is set-aside.