MUHAMMAD EJAZ SWATI, J.----The respondent/applicant filed an eviction application against the appellants (respondents) in respect of house, constructed upon two pieces of land bearing Khasra Nos.2109, 2107, 2000, measuring 0 rod 4 poles, mutation No.154 and Khasra Nos.2127, 2111, 2110, 2107, 2000, mutation No.156, measuring 0 rod 3 pole (total 0 rod 7 pole), situated at Mohal Kam Inayat Khan, Mouza Kali, Tappa Kasi, Tehsil and District, Quetta (Muncipal No.10-9/4267 Arbab Ghulam Ali Road, Kocha Haji Abdul Aziz, Killi Debba, Quetta ). It was the case of the respondent that the half portion of the above mentioned house, constructed upon two rooms and a bath room etc. after erecting intervening wall (premises in question) was rented out to the father of appellants Nos. 1 and 2 (respondents) namely Sher Muhammad and due to close relationship, no rent deed was arrived at between the parties. The premises in question was required on the ground of personal, bona fide use and occupation of the respondent (applicant) in good faith and default in payment of rent from January 2014.
2. The appellants (respondents) while filing rejoinder to the eviction application specifically denied the relationship of landlord and tenant between the parties,
3. Out of pleadings of the parties, following issues were framed:
1. Whether there exists any relationship of landlord and tenant between the parties?
2. Whether respondents Nos.1 and 2 are bad paymaster?
3. Whether the demised house is required to applicant for his personal bona fide use?
4. Whether the applicant is entitled to the relief claimed for?
5. Relief?
4. The respondent (applicant) produced eight witnesses and recorded his statement. In rebuttal appellants (respondents) produced five witnesses and thereafter appellant No.1 namely Fayyaz Ahmed being attorney recorded his statement on behalf of the appellants (respondents).
5. The learned Rent Controller/ Civil Judge-V, Quetta ('the trial Court') vide judgment and decree dated 15th June 2019 ('the impugned judgment and decree') allowed the eviction application and directed the appellants (respondents) to handover the vacant possession of the demised house to , the extent of half portion to the respondent (applicant,) within a period of 60 days of passing the order and further to pay monthly rent of demised house to the respondent (applicant) at the rate of Rs.3500/-, from January 2014 till handing over the vacant possession.
6. The learned counsel for the appellants contended that the appellants by way of filing rejoinder to the eviction application specifically denied the relationship of landlord and tenant between the parties; that the learned trial Court has failed to decide the issue No.1 with regard to relationship and the findings rendered in this respect reflect misreading and non-reading of evidence; that no agreement with regard to tenancy between the parties has been produced, nor payment of rent had been established through any cogent evidence; that an affidavit of previous owner namely Sultan Muhammad was also filed by the respondent to substantiate the issue of relationship of landlord and tenant, but he was not produced, thus, an adverse inference could be drawn against the respondent in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984; that a Civil Suit in respect of title of the premises in question is pending against the respondent and in absence of establishment of relationship of landlord and tenant, the learned gent Controller had no jurisdiction to adjudicate the matter and it was the case to be decided by the Civil Court, therefore, the impugned judgment could not be sustained and liable to be set aside.
7. On behalf of the respondent Messrs Abdul Hameed Khan and Manzoor Ahmed Khan, Advocates filed their power, which is taken on record.
8. Learned counsel for the respondent Mr. Abdul Hameed Khan, Advocate contended that the appellants arc close relatives of the respondent, therefore, no tenancy agreement arrived at between .the parties and there was verbal tenancy between the parties; that respondent through documentary and oral Evidence besides relationship of landlord and tenant also proved the remaining issues, therefore, findings of the learned Rent Controller is based on proper appreciation of the evidence; that the mutation entries with regard to premises in question also establishes the relationship of landlord and tenant between the parties; that mere denial of relationship by the appellants without producing any cogent evidence cannot be taken into consideration unless they could justify their possession over the property in question.
9. Having heard the learned counsel for the parties and perused the record. The appellants from the inception of the proceedings specifically denied the relationship of landlord and tenant between the parties regarding which issue No.1 was framed. The respondent in support of its case produced eight witnesses including documentary evidence. AW-4 Hameedullah Patwari, produced mutation entries related to the premises in question as Ex.A/4 and 4-B. The documents related to connection of Gas was produced through AW-5 Muhammad Ishaq as Ex.A/5 while AW-6 Muhammad Yasir, Junior Clerk WASA, produced documents / bills of water charges and AW-7 produced legal notice issued to the appellants as Ex.A/7-A.
10. The appellants / respondents produced documentary evidence with regard to Gas meter connection as R/2- A, which indicates that it was on the name of appellant Faiz Ahmed son of Sher Muhammad with different address, which has no nexus with the premises in question. The appellants also denied the relationship of landlord and tenant on the basis of Civil Suit filed by Muhammad Siddique against the respondent and produced the same as Ex.R/4-A and an application under Order XXXIX Rules 1 and 2, C.P.C. as Ex.R/4-B. The above documentary evidence merely indicates that Muhammad Siddique has challenged the title of the respondent with regard to premises in question and filed a suit for cancellation of mutation entries, During arguments it was admitted by both the learned counsel for the parties that the suit filed by Muhammad Siddique was dismissed by the trial Court and an appeal is pending before the Additional District Judge-III, Quetta. Be that as it may, the fate of the above appeal will take its legal course between the concerned parties and the same aspect cannot enhance the contention of the appellants to deny the relationship of landlord and tenant between the parties.
11. The perusal of evidence produced by the parties indicate that the respondent is admittedly owner of the house in question and in this respect mutation entries had been produced, which aspect of the matter has neither been rebutted by the appellants nor any sufficient evidence has been produced to justify their possession in any lawful capacity. The documents related to utility bills produced by the respondent / landlord might not be conclusive evidence to establish the relationship of landlord and tenant, but at the same time, the utility bills are not totally irrelevant, as the said connection required proof of ownership allotment letter/Fard and No Objection Certificate (NOC) from the owner if the land or premises is leased or rented. The combined effect of the above evidence particularly mutation entries of the premises in question produced by the respondent establish the relationship of the landlord and tenant between the parties. The contention of the learned counsel for the appellant that in case of complicated question of title, the learned Rent Controller lacks jurisdiction under the Rent Restriction Ordinance, 1959, is not tenable, because if the tenant fails to produce any title document to support his possession over the premises in question, the Rent Controller, or the Appellate Court are competent to determine the relationship of landlord and tenant between the parties. Reference in this respect is to be made to the case of Ahmed Ali alias Ali Ahmed v, Nasar ud-Din and others (PLD 2009 SC 453), wherein, at page No.458, it was observed as under: "Though the Rent Controller is not competent to determine the question of title of the property assuming the role of a civil Court, but if the tenant fails to produce the documentary evidence to support his title over the premises in dispute, the Rent Controller can determine the relationship of landlord and tenant between the parties."
12. The other contention of the learned counsel for the appellant that in absence of tenancy agreement or rent receipt, the mere mutation entry/ownership is not determining factor to establish the relationship of the landlord and tenant between the parties, is also not relevant, as the respondent in the eviction application had specifically pleaded that due to close relationship with appellants tenancy was oral and in such circumstances by virtue of ownership documents, issue No.1 had been proved. Reference in this respect is placed on case titled Shaiar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45, wherein, it was observed 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."
13. In the instant case, the appellants without having any title documents in their favour, had challenged the title of the respondent and such conduct of the appellants is sufficient to hold the appellants as contumacious defaulter of rent and on such contumacious denial, their eviction would appears to be amply justified and warrants no interference by this Court in appellate jurisdiction. Reference in this respect is to be placed on the case titled Makhan Bano v. Abdul Ghani PLD 1984 SC 17, wherein, the Hon'ble Supreme Court observed as under: "The futility of his efforts to take up a dispute over title of the property, abandoning it at a crucial stage and withholding rent on that account for over 10 months showed an element of contumacy and persistency in the misconduct,"
In view of the above MO No,27 of 2019 is dismissed. The parties are left to bear their own cost, however, three months time is granted to the appellants to handover the vacant possession of the premises in question and to pay monthly rent to the respondent, as directed by the learned Rent Controller. In case of default, the appellants are liable to be evicted forthwith.