MUHAMMAD NAEEM ANWAR, J.- Petitioner has filed an application seeking ejectment of respondent No.1 from the house No.H.3656/1582, situated in Mohallah Kachi Peshawar City and for recovery of outstanding dues against him, before the learned Rent Controller Peshawar on the plea that respondent No.1 is in possession of house in question on rent @ Rs.2000/- per month but he has not paid monthly rent since May, 2011 and has become a habitual defaulter. He was also served with a notice for handing over the vacant possession of the house in question but was not responded. Application for ejectment & recovery was contested by the respondent No.1 on the ground that he is in possession of the disputed house as it was devolved upon him through inheritance; there exists no relationship of tenant and landlord; application is based on fraud. It was also pleaded that house in question was purchased by his father and after his death, he is in possession of the same. In support of his contention, he added that connections of electricity, sui gas and telephone have also been installed in his name. The controversy between the parties resulted into framing of a single issue i.e. whether relationship of landlord and tenant exists between the parties? Parties were directed to adduce their evidence and after completion of evidence, the learned trial Court vide its judgment & order dated 26.04.2017 non-suited the petitioner. He being aggrieved from the order of the learned Rent Controller, approached to the appellate Court through his appeal No.19 of 2017, which resulted into the same fate vide judgment & order of the learned appellate Court dated 03.09.2019.
CMs No.450-P/2021 & No.471-P/2020 Both these applications/CMs were filed by the petitioner seeking permission to place on file letter of administration, issued by the learned Senior Civil Judge, Peshawar, copy of an extract from the Register of petition writer dated 03.07.1994, copy of the extract from the Register of PT-1 for the year 2008-11 and 2011-14, prepared and maintained under Khyber Pakhtunkhwa Urban Immovable Property Act, 1958, with the assertion that these documents are necessary for just decision of the instant writ petition. In the interest of justice, both these applications / CMs are allowed, documents appended therewith are considered as part and parcel of the record.
02. Learned counsel for the petitioner contended that originally Hakeem Allah Bakhsh was the owner of house in question, from whom it was devolved upon Hakeem Mushtaq (Petitioner) and Hakeem Muhammad Naeem. Hakeem Allah Bakhsh had died in the year 1959 and thereafter all the properties including disputed house has been managed by petitioner's brother Hakeem Muhammad Naeem. Though the respondent has alleged to have purchased the house in question from Hakeem Muhammad Naeem somewhere in the year 1994 but he was required to have handed over the vacant possession of the house in question the landlord i.e. the petitioner and thereafter to seek remedy against his vendor. He also vociferated that the learned Rent Controller as well as the appellate Court have failed to appreciate the facts of the petition, as such, the judgments impugned suffer from mis-application of law. In support of his contention, he placed reliance on the precedent reported as 1996 SCMR 877, 2009 SCMR 1077, PLJ 2009 SC 910, 2015 YLR 440, PLD 2014 SC 347, 2013 CLC 88, 2017 SCMR 1882, 2017 SCMR 367, PLD 2007 SC 45, PLD 2009 SC 454, 1999 SCMR 348 and PLD 1973 SC 214.
3. Conversely, learned counsel for the respondent supported the judgments passed in favour of respondent No.1.
4. Arguments heard and record perused.
5. Record reveals that prior to filing of ejectment application, the petitioner has sent a legal notice with the same assertion of default since May, 2011 and has sought recovery of possession alongwith outstanding dues, legal notice was followed by ejectment application, however, neither in the notice nor in the application it was ever mentioned by the petitioner that when the possession of disputed house was handed over to respondent as a tenant. Even in the contents of the application, it was not mentioned that how the tenancy was created either through written documents or it was an oral tenancy with specification of day, month or the year. Ex.PA was the affidavit submitted by the petitioner, wherein no details regarding creation of tenancy were given by the petitioner. Statement of petitioner was recorded as PW-1 who in his cross examination admitted it as correct that no tenancy agreement was signed between him and respondent No.1, however, stated that it might be with his father. In his cross examination he also deposed that the disputed property is still joint with his brother Hakeem Muhammad Naeem. It was also brought on record in cross examination that he could not produce any receipt whereby he would have received monthly rent from respondent No.1. It is worth to mention that petitioner has stated in categoric term that his father Hakeem Allah Bakhsh might have died in the year 1959. By considering this statement of petitioner qua the creation of tenancy by respondent No.1 with his father would lead to a conclusion that respondent No.1 is in possession of the property since 1959. The case of petitioner was based on his sole statement, as, after recording of evidence, he has closed his evidence. It appears that petitioner has also placed on record the affidavit of Khalil Ahmad Jan s/o Naseer Ahmad Jan who in the contents of the affidavit had corroborated the version of petitioner, however, he was not produced before the Court as a witness, as such, Ex.PB, affidavit of Khalil Ahmad Jan could not be relied upon. On the other hand, respondent No.1 in his statement placed on file the copy of deed dated 03.07.1994 whereby, it was alleged by him that his father has purchased the disputed house from Hakeem Muhammad Naeem in lieu of Rs.8,00,000/- from which, only one lac is outstanding as Rs.7,00,000/- has already been paid. In support of his defence, he produced Muhammad Niaz as RW-2 who also corroborated his stance. It was bounded duty of the petitioner to prove the existence of relationship of tenant and landlord through cogent, reliable and convincing evidence. Yes, tenancy could be created orally and law does not require that there must be a written document, but when the existence of relationship was denied then the landlord is required to have proved it through convincing and concrete evidence. To satisfy the conscious of the Court about existence of relationship, the petitioner was required to prove it through a specific date, however, nothing is available on record which could support the stance of petitioner.
06. Apart from above, not even a single iota of evidence is available on record which could show that petitioner would have ever received monthly rent from respondent No.1. Respondent No.1 produced Muhammad Niaz as RW 2, in whose cross examination it was brought on record that the father of respondent was in fact the tenant of Hakeem Muhammad Naeem in the following words: {{Urdu Text}}
07. It is not out of context that Hakeem Muhammad Naeem was survived by son namely Kamran, who was present before the Court on 18.02.2016 when petitioner was being cross examined but he has not produced Kamran s/o Hakeem Muhammad Naeem as his witness in order to support his contention. Statement of Kamran s/o Hakeem Muhammad Naeem would have been crucial had he been produced before the Court.
Who could either support petitioner's contention or rebut the stance of respondent No.1 but the petitioner has withheld best available evidence in the shape of Kamran (his nephew). In the case titled Sughran Bibi v. Mst. Aziz Begum reported as (1996 SCMR 137), the Hon'ble Supreme Court held that, if evidence of vital importance is not produced or is withheld, the Court in terms of Article 129(g) of Qanun-e-Shahadat would draw adverse inference that had such evidence been produced by the party it would have gone against him". Reliance can also be placed on the case titled Mst. Hilal Murad versus Haji Amir Zaman and 7 others (2017 YKR Note 118). It is well settled that when the issue regarding the existence of relationship of tenant and landlord is framed, the landlord is required to prove it, in case of failure, his application is turned down. Though, learned counsel for the petitioner, by placing on file letter of administration, issued by the Court of Senior Civil Judge in Petition No.515/02 of 2015 intended that house in question has devolved upon legal heirs of Hakeem Allah Bakhsh, however, the letter of administration was issued in favour of petitioner namely Mushtaq Ahmad, Muhammad Kamran Bukhari alongwith other legal heirs of Hakeem Allah bakhsh, so this document is of no help to the petitioner in order to prove the existence of relationship of tenant and landlord. There is no cavil with the proposition that a party can succeed on the strength of his own evidence and he cannot seek benefits from weaknesses of the other, as the petitioner would have to stand on his own legs. It is settled law that the party can only succeed according to what was alleged and proved. Reference in this respect is made in 2005 SCJ 474 and 1980 CLC 2056. Petitioner has also not been able to prove as to whether any rent was ever paid by respondent to him being his tenant. In this respect reliance can be placed on the case titled "Nasira Afridi vs. Muhammad Akbar" (2015 MLD 171) wherein it was held that Payment of rent was a sine qua non for the relationship of landlord and tenant.
Similarly, the fact as to whether predecessor in interest of petitioner namely Hakeem Allah Bakhsh has rented out the property to the father of respondent prior to 1959 when he was alive and that after his death when the property was being managed by Hakeem Muhammad Naeem whether he has rented out the property to the father of respondent and whether he has sold his share to the respondent and as such the status of respondent is that of co-sharer, these are disputed question of facts which could not be determined by the learned Rent Controller. Similarly, the petitioner has not placed on file sufficient evidence to answer the aforementioned questions with regard to the existence of relationship of landlord and tenant. Reliance in this respect can be placed on case titled "Fareed ud Din Masood v. Additional District Judge, Bahawalpur" (2019 SCMR 842), wherein it was observed that a Rent Tribunal / Rent Controller lacks jurisdiction to determine questions of title.
08. For the reasons discussed above, the instant petition being misconceived and without substance, is hereby dismissed but with no order as to cost.