MUHAMMAD NAEEM ANW AR, J. This single judgment in the instant petition shall also decide the other six connected petitions tabulated in the last para of this judgment as in all petitions Judgment and order of learned Additional District Judge-II, Bannu, dated 18.07.2019 was assailed whereby the petitioners' appeals were dismissed and the order of learned Rent Controller/Civil Judge-V , Bannu, dated 06.12.2018 dismissing their respective ejectment petitions were maintained.
02. Laconic facts of these petitions are that the petitioners filed six applications for ejectment of respondents on the grounds that they are the owners of the disputed premises, which were rented out by the previous owner namely Nasar Ullah Jan to them; that in a civil suit No. 208/1 on 07.11.1984 the respondents were directed to deposit Rs.
150.- as rent of their respective premises before 15th of every month but since 1984 they have never deposited the rent of the disputed premises and now as per the market rate the rent of the disputed premises is Rs. 2000/- per month; that the condition of the property in dilapidated one and it requires reconstruction; that the property is required to the petitioners on the grounds of personal need, default in payment of rent and for reconstruction for which the respondents asked to hand over the vacant possession of the property besides payment of outstanding rent to them, but they refused. Respondents on their appearance have submitted applications for outrightly rejection of ejectment applications on the plea that they were in possession of disputed properties form their forefathers however , prior to filing of these applications for ejectment they have already transferred the possession of these shops to Hashmat Ali Khan Son of Muhammad Asghar Khan and Kareem Daud Khan therefore, now they have got no concern with the disputed properties besides the denial of relationship of landlord and tenant. The applications were contested by the petitio ners but ultimately the prayers of respondents for rejection of applications were prevailed resultantly on 06.10.2016 the applications for ejectment were dismissed by the learned Rent Controller . The order of dismissal of ejectment applications were challenged by the petitioners through their respective appeals and their appeals were allowed by the learned appellate and the matter was remitted back to the learned Rent Controller for decision afresh after submissions of written reply and to determine the relationship of Tenant and Landlord, accordingly after filling of written reply the learned Controller framed the following issues;- 1) Whether petitioner has got a cause of action?
2) Whether there exists relationship of landlord and tenant between the parties?
3) Relief?
After framing of issues, parties have produced their desired evidence, on conclusion of evidence, learned Rent Controller dismissed the applications on 06.12.2018 on the ground that petitioners have failed to prove the relationship of landlord and tenant. Being dissatisfied from the order of the Rent Controller , petitioners have challenged it before learned District Judge through their separate Appeals, which were dismissed through judgment and order dated 25.07.2019, hence these petitions.
03. Mr. Rafi Ullah Khan, Advocate, learned counsel for petitioners contended that Attaullah Wazir son of Asmatullah was the original allotee of 30-marlas bearing survey No. 766/c, 24/16 to 36/16 situated at Ghala Mandi, Bannu city, who has transferred this property to Sher Dad Ali Khan, Muhammad Layaz Khan, Sabzali Khan, Sardar Khan, Rafiullah Khan, Umer Khan, Khan Ayaz and Rasta Baz Khan (total eight persons) in equal shares through decree of court in Civil Suit Nos. 22/1 & 29/1, Nasar Ullah Khan pre-empted the sale and his suits against Khan Ayaz, Rasta Baz, Muhammad Layaz, Sabzali Khan and Sardar Khan were decreed however , Umer Khan, Sher Dar Ali Khan and Rafiullah Khan remained the owner to the extent of 3/8th share, from whom Umer Khan sold his 1/8th share to Kaleem Ullah through un registered deed dated 01.05.2009, for which a suit No. 189/1 for specific performance of contract was filed, which was decreed in favour of Kaleem Ullah and on the strength of decree he is the owner of 1/8th share in the disputed premises. He added that rest of the petitioners (Mst. Kishwar Sultana, Mst Shabana, Mst. Shazia) are the owner of their respective shares on the strength of decree in their favour in suit bearing No. 143/1 titled (Mst Kishwar Sultana and others versus Irfan Ullah and others) decreed on 25.10.2013. therefore, the alienation of this property through registered No. 459 dated 26.07.2008 in favour of Maqsood Ali Khan son of Bakht Baz Khan , Wahid Ullah Khan son of Sher Dar Ali Khan and Asmatullah Khan son of Muhammad Hanif Khan in lieu of Rs. 60,00000/- (sixty lac) is wrong, against the fact and law because Atta Ullah was no more the owner of the property thus, the alleged deed (supra) is ineffective upon petitioners' right. He argued that the impugned judgment & order is against the principle laid down by the apex Court in case reported as 2000 SCMR 554. Next, he contended that in civil suit No. 208/1 on 07.11.1984 the respondents were directed to deposit the monthly rent but no such rent was ever deposited by them thus, they are habitual defaulter besides the conditions of the rented premises are dilapidated which requires reconstruction, but the Rent Controller and the Appellate Court too have not considered the petitioners' stance which resulted into grave miscarriage of justice.
04. Mr. Shaukat Khan, Advocate, learned counsel for respondents supported the impugned judgment and order and contended that the disputed questions of law and fact require complete investigation and inquiry through civil suit therefore, these petitions entitle dismissal.
5. Arguments heard; record perused.
6. During course of arguments much stress was given by the petitioners that respo ndents were directed to deposit the tentative rent every moth without fail till the decision of civil suit 208/1 of 1984, thus, they have already been declared as tenant and by not depositing the monthly rent committed a willful default were required to have been evicted from the disputed premises straight away . Admittedly , Sami Ullah Khan filed a suit No. 208/1 in the year 1984 for declaration against Atta Ullah and others, claiming himself be the owner of the disputed property , some of the defendants of that civil suit filed ejectm ent petitions, however without seeking reply of the then alleged tenants the then Rent Controller has directed them to deposit the rent in the court and adjourned the rent petitions sine die on 11.11.1984. Similarly , other rent petitio ns were filed by Muhammad Liaz in the year 1986 which were rejected by the then Rent Controller on 20 .04.1986 in the following term:- "There is a suit bearing No. 208/1 of the year 1984 titled Sami Ullah versus Atta Ullah Khan etc. and it is not disputed that there is also a dispute as to who is the landlord of property of which the respondents are tenants. In these circumstances the respondents are directed to deposit the entire rent so far due against them and if future before 15th of each month. However , this deposit would be open to the objection by the landlord determined later on. The present petitions in view of the circumstances, are premature, therefore, the same are hereby rejected with no order as to costs."
7. Undeniably , neither the title nor the factum of tenancy has ever been finalized till now by the court of competent jurisdiction. Presently another civil suit No. 129/1 is also pending in adjudication between the parties. Thus, the argument of the learned counsel for the petitioners that the respondents have committed willful default and are liable for eviction has no force at all.
8. Furthermore, the factum of existence of relationship of landlord and tenant has not been proved, the onus of which was definitely on the petitioners. Neither the petitioners have rented out the disputed premises to the respondents nor the respondents have ever paid any rent to the petitioners. When the relationship was not proved, the Rent Controller has left with no option but to dismiss the petitions because the rest of the questions are requiring complete/detailed enquiry through recording of pro and contra evidence by the court of competent jurisdiction. In the circumstances when the relationship of landlord and tenant has not been proved through clear , unambiguous, cogent and direct evidence, the question as to whether the Rent Controller could decide the other technical aspects such as the title of the property has been laid to rest by the Hon'ble Supreme Court in REHMA TULLAH'S case 1983 SCMR 1064 by observing that:- "The first question posed in the last but one paragraph does not present any serious difficulty . Whether it is the forum of Rent Controller or a Court exerc ising its appellate or constitutional jurisdiction, there is no scope for the argument that even if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt, he would still be allowed the benefit of affirmative finding on this issue. There is neither any general principle nor the relevant law governing proceedings either before the Controller as a special tribunal or the appellate Court that when a party is required to establish a fact, positively . It shall be deemed to have discharged its burden only by obtaining a tentative opinion and not a finding beyond a reasonable doubt. It is not necessary to go into the difference regarding appreciation of evidence in criminal proceedings as compared to those of civil nature, as the jurisprudential consideration regarding burden on an accused person is foreign to the present discussion, This finds support from the relevant law, namely , Rent Restriction Ordinance; section 13 whereof requires that if the Controller , after affording -reasonable opportunity to the tenant, "is satisfied" that one or the other conditions having been fulfilled he is liable to be evicted (of course on sue satisfaction) ran pass orders visualized by the said provision."
Thereafter , in the case of Province of Punjab Through Education Secretary and another (PLD 1985 SC 1), the apex court while considering the principle laid down in REHMA TULLAH'S case, especially in the matter of denial of relationship of landlord and tenant, has held that:- "What is permissible for Courts of general jurisdiction in the field of fair play, justice and equity when there is no statutory bar, is also permissible for the Controller . He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy . in a civil Court, first and then again approach to the Controller . Even when the tenant has not succeeded before the Controller to create the required 'reasonable' doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, bas failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same."
09. Thus, while deriving wisdom from the principle enunciated in the cases (supra) and keeping in view the chequered history of the cases, the matter in hand is still requiring the resolution as to who was the original allotee and to whom it was transferred, the fate of transfer by Attaullah to Sher Dad Ali Khan, Muhammad Layaz Khan, Sabzali Khan, Sardar Khan, Rafiullah Khan, Umer Khan, Khan Ayaz and Rasta Baz Khan in equal shares, if so, whether Attaullah was the owner and could he alienate it to Maqsood Ali Khan son of Bakht Baz Khan, Wahid Ullah Khan son of Sher Dar Ali Khan and Asmatullah Khan son of Muhammad Hanif Khan these are the questions which could only be decided by the civil court through regular suit by arraying all those who have any interest in it, keeping in view the limited jurisdiction of Rent Controller to the extent of relationship of landlord and tenant.
Reliance is also placed on Ghulam Hussain versus Noor Shah Ali (1994 MLD 36), Abdul Karim Versus Muhammad Asadullah (1997 CLC 1538 ), Wahid Bakhsh versus Additional District Judge and others (2005 MLD 1064 ), Shakeel Masih and ohers versus Sheikh Nadeem Pervaiz through special attorney (2006 YLR 1680 ), Tariq Javed V ersus Khawaia Muhammad Adil Younis ( 2007 CLC 1225 ).
10. Last limb of the arguments of learned counsel for petitioner that for non-compliance of the directions of the august Supreme Court as per the dicta laid down in Barkat Ali's Case (2000 SCMR 556), respondents were liable for ejectment, suffice is to say, that petitioners' failure to prove the existence of relationship of landlord and tenant between the parties resulted into dismissal of applications for ejectment, thus, not annexing the affidavits could not be taken as sole ground for ejectment of respondents as the petitioners would have to stand on their own legs and no benefit could be awarded to them from the weakness of respondents. Law is settled that petitioners have to stands on their own legs and to establish their claim in accordance with law and any weaknesses and shortcoming of respondents would be irrelevant for lending strength to petitioners' case. Rel: Muhammad Sarwar Khan Versus Hussain Nawab ( 1992 CLC 1915 ).
11. Learned counsel for petitioners could not point out any illegality , irregularity or jurisdictional defect to upset the concurrent findings of the fora below . Therefore, for the reasons discussed above the instant as well as the connected petitions tabulated as under: S.No. W.P No. Title 1 998-B/2019 Mst. Kishwar Sultana vs. Nek Nawaz Khan & two others.
2 999-B/2019 Mst. Shabana vs. Shatr Baz Khan & two others.
3 1000-B/2019 Mst. Shazia Vs. Musafar Khan & 6 others.
4 1001-B/2019 Mst. Shabana vs Musafar Khan & 3 others.
5 1002-B/2019 Mst. Kishwar Sultana vs. Akhtar Ali Khan &3 others.
6 1002-B/2019 Mst. Shazia vs Musafar Khan & 3 others, are hereby dismissed with no order as to cast.