NAZEER AHMED LANGOVE, J.---The instant appeal is directed against the order and decree dated 11.11.2016 (hereinafter "the impugned Order") passed by Civil Judge-VII/Rent Controller, Quetta, (hereinafter "the trial Court") whereby eviction application filed by the appellants was dismissed.
2. Brief facts of the case are that the appellants filed an eviction application with the averments that property bearing Khewat No.154/208, Khasra No. Qita-4 measuring 2500 sq ft situated at Ward No.45, Urban No.3 Tehsil and District Quetta, originally belong to Mst. Afifa widow of Agha Muhammad Rehmani. It was further stated that she had since been expired leaving the legal heirs who are now appellants. It was further stated that the above mentioned property was rented out to father of the respondents namely Azeem Khan by mother of the appellants Rs.360/- per annum. After death of Mst. Afifa, the appellants have become owner and respondents their tenants. It was further stated that in this respect notice dated 22.08.2011 was sent to the respondents calling upon them that they have committed default since 1982, before demise of Mst. Afifa (mother of the appellants) who fell sick and shifted to India for treatment and expired in the year 1997. It was further stated that the respondents have failed to make payment of rent since 1982, as such, committed default thus are liable to be evicted. It was further stated that due to bar of limitation the appellants claimed for only three years rent Rs.360/- per annum with the prayer for vacant possession of the property.
3. The respondents contested the case by way of filing written statement wherein they claimed that the property in question was agreed to sell out by the mother of the appellants in the year 1965, which was accepted by the father of the respondents, possession of open land was also handed over to the latter, pursuant thereto an amount of Rs.50,000/- was also paid to her as earnest money. Later on, she disappeared.
4. Out of the pleading following issues were framed. i. Whether there exists no relationship of landlord and tenant between the applicants and respondents? ii. Whether respondents are bad pay master and committed default in the payment of rent since, 1982? iii. Whether the applicants are entitled for the relief claimed for? iv. Relief?
The appellants in support of their claim produced following witnesses namely:-- i. AW-1. Ghulam Nabi. ii. AW-2. Muhammad Hashim. iii. AW-3. All Muhammad. iv. AW-4. Abdul Latif Patwari.
And recorded their statement through attorney Abdul Malik.
5. In rebuttal, the respondents produced following witnesses. i. RW-1. Muhammad Akbar Khan. ii. RW-2. Muhammad Gul. iii. RW-3. Idress.
And recorded their statement through attorney Muhammad Khan.
6. After hearing the parties and valuating evidence the learned Rent Controller, Quetta, did not allow the application vide order/decree dated 11.11.2016 whereby the application filed by the applicants (appellants) was dismissed. Hence this appeal.
7. Heard the learned counsel for the parties at length and gone through the record with their assistance which reflects that the appellants instituted an eviction application under section 13 of the West Pakistan Urban Rent Restriction Ordinance-VI of 1959 with the claim that their predecessor was legal and lawful owner of the property bearing Khewat No.154/208, Khasra No.Qita-4 measuring 2500 sq ft situated at Ward No.45, Urban No.3 Tehsil and District Quetta, rented out to the father of the respondents Rs.360/- per annum. After demise of Mst. Afifa (mother of the appellants) and Azeem Khan (father of the respondents) successors stood on their shoes as landlords and tenants respectively. It was further stated that due to her serious health problems in the year 1982 Mst. Afifa was shifted to India who expired in the year 1997. It was further stated that the respondents did not pay a penny towards the rent since the year 1982, thus, proved themselves willful defaulters and liable for eviction.
8. Reappraisal of evidence furnished by the parties shows that AW-1 Ghulam Nabi Malik son of Muhammad Yousuf appeared before the Rent Controller, Quetta, reiterated the contents of his affidavit wherein he testified that both the parties are known to him, rent of the premises was fixed Q Rs.360/- per annum since the lifetime of their mother and father respectively but not paid since the year 1982. In cross-examination witness admitted that he had not seen any agreement or receipts in support of aforesaid relationship of landlord and tenant between the parties, he however denied that no such relationship existed between the parties. He denied purchase of property by Azeem Khan, (father of the respondents) from Mst. Afifa (mother of the appellants).
9. AW-2 Muhammad Hashim also supported the version of appellants with regard to their ownership and occupation of the property by the respondents as tenants.
10. AW-3 and 4 Ali Muhammad and Abdul Latif Patwari brought the record of the property (Ex.P/1-A) and (Ex.P/1-2) wherein though a red entry was found in Jamabandi with the note that Mst. Afifa daughter of Atta Muhammad Khan caste Ghilzai had been expired and there is apprehension of her property being grabbed by the land mafia, as such, the same may be considered as property of "Board of Revenue". Though learned counsel for the respondents stressed upon the fact that no entries of ownership exist either in the name of Mst.
Afifa or her legal heirs but in my perception aforesaid cross-examination to the witness 4 Abdul Latif) fired back showing that the property bearing Khewat No.154, Khatoni. No.208, mutation No.608 was owned by Mst. Afifa who had been expired in the year 1997 survived by legal heirs residing A abroad, as such, the red entry with explanation was inserted. Apart from that counter claim of the respondents in respect of verbal agreement of sell between the predecessors of the parties itself speaks volumes and inferred to be an admission (though implied) of relationship as landlord and tenant.
11. Abdul Malik attorney for the appellants also appeared and supported contents of the application on each and every point, remained firm despite having been cross-examined at length.
12. In rebuttal, RW-1 Muhammad Akbar Khan, appeared before the Rent Controller and testified occupation of the respondents as owners for last 50 years and making payment of utility bills by them regularly. He expressed his unawareness of relationship between the parties, however, not confronted of any document showing that the property in question was owned by the respondents.
13. Same was narrated by RW-2 Muhammad Gul, who considered the respondents as owners of the property since long, without any document of ownership with them, at the end Muhammad Khan son of Azeem Khan appeared for himself and attorney for the respondent No.2 and supported contents of the written statement, however, failed to place a single piece of documentary evidence showing that the property has ever been occupied by them as owners nor any agreement of sell could be brought on record. Similarly, they did not take pain to get the property registered in their names manifestly shows that they were not occupying the same as owners but tenants which too with long standing default in payment of rent.
14. Provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 do not contain any condition that agreement of landlord and tenant must be in a particular form, it may even be verbal. Agreement mentioned in provision of Section 13(2)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959, has been interpreted as any type of agreement without any insistence on formalities. Verbal agreement of tenancy has always been accepted as an agreement under the provisions of law. In this respect reliance is placed on a case titled as Shajar Islam v. Muhammad Siddique PLD 2007 Supreme Court 45. Relevant portion therefrom is as under: "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. The respondent having raised a specific plea that he was in possession of premises in his own right as J&K refugee has not been able to substantiate his assertion through any evidence, oral or documentary and we having examined the record with the assistance of learned counsel for the parties, have found that two Courts subordinate to the High Court, after scanning the entire evidence in detail, have determined the status of respondent as tenant of the premises".
15. Existence of relationship between the parties would imply acceptance of title of landlord, as such, whenever a tenant denies that title and it is established that he is a tenant, he would forfeit his tenancy having become a trespasser and liable to be ejected forthwith. Tenants have to stand on their own feet and are required to discharge onus of proof placed on them.
16. In the instant case the respondents denied relationship of landlord and tenant, thus the burden of proof heavily shifted on them to prove their title or locus standi for retaining the premises in question with them more importantly in which capacity.
Respondents though in their written reply had challenge ownership of the premises in question, but failed to prove the same through oral or documentary evidence. If a tenant denies relationship of landlord and tenant, tenancy is automatically terminated and he is liable to eviction.
17. It was contention of the respondents that predecessors of the parties had entered into an agreement of sell, an amount of Rs.50,000/- was also paid to Mst. Afifa (mother of the appellants) by Azeem Khan (father of the respondents), however the same could not be finalized due to disappearance of the former, if the aforesaid stance is believed even then agreement to sell did not create a right affecting relationship between the parties as landlord and tenant, the latter must vacate the premises first and then claim on the basis of agreement to sell. Reliance in this behalf is placed on a reported judgment titled Haji Jumma Khan v. Haji Zarin Khan PLD Supreme Court 1999 Page 1101. Relevant observation therefrom is as under: "The question about genuineness or otherwise of said sale agreement is obviously dependent upon final determination by Civil Court of competent jurisdiction. At this stage the validity of sale agreement relied upon by the petitioner/tenant is vigorously challenged by respondent/land-lord. Therefore, till the time that petitioner is able to establish his claim for specific performance on the basis of alleged sale-agreement, respondent- landlord would continue to enjoy the status of being owner and landlord of the premises. Relationship between the parties till such time would be regulated by the terms of tenancy."
18. In another case titled Mst. Azeemun Nisa v. Ali Muhammad PLD 1990 SC 382. The Hon'ble Supreme Court held as under:- "For the forgoing reasons I am unable to subscribe to the conclusions arrived at by the leaned single Judge and hold that the respondent was not entitled to protect his possession and resist ejectment, under the provisions of section 53-A of the Transfer of Property Act and the relationship of landlord and tenant continued to exist between the parties even after the execution of the agreement of sale. As admittedly the respondent had failed to tender rent to the appellant the eviction order passed against him by the Rent Controller was fully justified. I would, therefore, allow this appeal, set aside the judgment of the learned Single Judge of the High Court and restore the order passed by the Rent Controller. There will be no order as to costs."
In the light of what has been discussed above, this Court is of the considered view that the appellants (applicants) succeeded to make out a case for eviction against the respondents through oral and documentary evidence, as such, are entitled for vacant possession of the premises in question on the ground of default in payment of rent. Thus, the appeal filed by the appellants is allowed, order and decree impugned passed by the Rent Controller Quetta is set aside, consequently the application filed by the appellants (applicants) against the respondents for possession of the premises bearing Khewat No.154/208, Khasra No.Qita-4 measuring 2500 sqft situated at Ward No.45, Urban No.3 Tehsil and District Quetta is 'decreed and the respondents are directed to hand over vacant possession of the property to the appellants within a period of two (02) months. Amount of rent i.e. Rs.1080 (for three years) is also decreed with the directions to the respondents for its payment before handing over vacant possession of the premises. Parties are left to bear their own costs. Orders accordingly.
Decree sheet be drawn separately.