Faisal Zaman Khan, J. Through this petition, judgment dated 23.09.2020 passed by respondent No.1 has been assailed, by virtue of which, an appeal filed by respondent No.3 has been accepted and ejectment of the petitioner has been ordered.
2. Facts giving rise to the present petition are that in order to seek ejectment of the petitioner from the shop in dispute (details of which have been given in the ejectment petition), an ejectment petition was filed by respondent No.3 against petitioner and respondent No.4. An application for leave to contest the ejectment petition (ALTC) was filed by the petitioner which was allowed vide order dated 06.02.2018 and thereafter , out of divergent pleadings of the parties, 04 issues were framed, evidence was led by respondent No.3 whereas learned counsel for the petitioner made a statement on 15.10.2018 that he does not want to produce any evidence as onus of none of the issues is placed on the petitioner , subsequent to which the ejectment petition was dismissed vide order dated 15.12.2018. Feeling aggrieved, respond ent No.3 filed an appeal which was accepted through the impugned judgment, therefore, this petition.
3. Learned counsel for the petitioner submits that relationship of landlord and tenant does not exist between the parties for the reason that Muhammad Arif (vendor) was the original owner of the shop in dispute who mortgaged the same to the petitioner and subsequent thereto, sold the same to respondent No.3 through a registered sale deed. He asserts that the vendor also entered into an oral agreement to sell with the petitioner for sale of the shop in dispute and since the said agreement was not being performed, a suit for specific performance has been filed by the petitioner which is pending adjudication. In the above backdrop, he asserts that the petitioner in his own right is in possession of the property in dispute, thus, the Special Judge (Rent), Lahore had no jurisdiction to adjudicate upon the issue. Places reliance upon Muhammad Ijaz Ahmad Chaudhary v. Mumtaz Ahmad Tarar and others (2016 SCMR 1), Mirza Book Agency through Managin g Partner and others v. Additional District Judge, Lahore and others (2013 SCMR 1520 ), Pir Muhammad Manjh v. Naveed Iqbal Malik and 2 others (2017 MLD 418), Dr. Muhammad Afzal Hussain v. Additional District Judge, Lahore and 5 others (2015 CLC 1546 ) and Nadeem Zafar v . Muhammad Ismaeel and others ( PLD 2012 Lahore 178 ).
4. Oppose to the above, learned counsel for respondent No.3 submits that respondent No.3 is the owner of the shop in dispute and since there was an oral tenancy between respondent No.3 and the petitioner, terms of which have not been fulfilled by the petitioner, thus, his ejectment has rightly been ordered. He has placed reliance on the judgments reported as Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another (PLD 2009 SC 453), Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45), Nishan Ahmad alias Zeeshan v. Civil Judge and others (2021 MLD 1613 ), Fayyaz Ahmed and 2 others v. Muhammad Azam (2020 YLR 1764 ), Asghar Ali v. Tanvir Ahmad and others (2018 MLD 1231 ), Ch. Muhammad Akram v. Mst. Zeba Zareen and others (2015 YLR 2514 ), Ghulam Hussain v. Malik Muhammad Niaz and others (2012 YLR 1464 ), Military Estate Officer, Hazara Circle and anoth er v. Ch. Manzoor Hussain and 3 others (2010 CLC 1866 ) and Sher Bahadur and others v . Mir Akbar and others ( 2004 CLC 1348 ).
5. Arguments heard. Record perused.
6. The pivotal question which requires determination by this Court is that where relationship of landlord and tenant is denied by the alleged tenant, what will be the parameters for a Rent Tribunal to decide the ejectment petition.
7. It has been held by the Honourable Supr eme Court of Pakistan in case of Shajar Islam (supra ) that where the relationship of landlord and tenant is denied by a tenant and the landlord proves his ownership over the property in dispute, it will be presumed that relationship of landlord and tenant exist. For reference operative part of the judgment is reproduced hereunder: "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." (Emphasis supplied )
8. Similarly , the Honourable Apex Court in the judgment of Ahmad Ali alias Ali Ahmad (supra ) has held as follows:- "This Court in case of Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45) has laid down that tenancy would not be necessarily created by written instrument in express terms, rather might also be oral and implied. In normal circumstances, in absence of any evidence to the contrary , owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law ."
9. A cumulative reading of the afore-referred judgments would show that where relationship of landlord and tenant is denied by the tenant and the landlord proves his ownership over the property in dispute, the same would be sufficient to establish the relationship qua landlord and tenant and due to denial of relationship by the tenant, his default in payment of rent will also stands proved.
10. Applying the afore-noted test on the facts of the case in hand, it has surfaced that respondent No.3 has produced his registered sale deed as Exh.A-2 to prove his ownership over the shop in dispute to which there is no denial. Oppose to the above, learned counsel appearing on behalf of the petitioner before respondent No.2 (Rent Tribunal) made a categoric statement that he does not wish to produce any evidence as onus of proving the issues was upon respondent No.3. While making the afore-referred statement, learned counsel perhaps lost sight of the fact that mere pleadings of the parties is not per se evidence and in order to substantiate the facts narrated in the pleadings, evidence has to be produced, which should corroborate and prove the contentions, which in the case in hand the petitioner has failed to do as none appeared on his behalf to support his ALTC/reply, thus, it will be presumed that there is no rebuttal to the contents of the ejectment petition. For reference reliance is placed upon Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74), Combind Investment (Pvt.) Ltd. v. Wali Bhai and others (PLD 2016 SC 730), Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914) and Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommuncation Company Limited and another ( 2014 SCMR 922 ).
11. So far as the argument of learned counsel for the petitioner that onus to prove all the issues was on respondent No.3, thus, petitioner was not obligated to produce any evidence is also unfounded for the reason that relationship of landlord and tenant was denied by the petitioner , thus, initially onus to prove the said relationship was definitely on respondent No.3 which he discharged when he appeared himself as a witness (AW-1) and produced Exh.A-2 (registered sale deed). Once this fact was proved by respondent No.3, the onus shifted upon the petitioner to justify and prove his claim (mortgage and oral agreement to sell) and as stated above, since he has not produced any corroborative evidence in support of his ALTC/reply , thus, his stance cannot be considered.
12. Great emphasis has been laid by learned counsel for the petitioner on the statement made by the vendor who appeared as AW-2 to highlight that the said witness acknowledged the mortgage of the property in dispute in favour of the petitioner . A bare reading of the deposition of the vendor as a whole as contemplated in judgments reported as Muhammad Amir v. Khan Bahadur and another (PLD 1996 SC 267) and Talehmand and others v. Aisha Bibi (PLD 1994 Lahore 399) would show that his assertion was that the property was mortgaged for a period of 02 years which culminated in the year 2014 and thereafter with the knowledge of the petitioner , the shop was sold to respondent No.3 through Exh.A-2. The above assertion remained un-rebutted for the reason that no evidence was led by the petitioner for disproving the said fact.
13. For the sake of argument, if the stance of the petitioner qua mortgage is considered to be correct, a perusal of the documents attached with the present petition would show that the copy of the alleged mortgage deed has been appended with this petition (without perm ission), contents of which would show that it was executed in 2012 and was for a period of 2 years. Moreover , it has been mentioned in the said deed that petitioner is retaining the possession as a tenant (in order to deceive the court where the said assertion has been mentioned the words have been defaced by applying a thumb impression thereon). Moreover the assertion of mortgage has himself been diluted/belied by the petitioner in his suit for specific performance and perman ent injunction filed against the vendor , a copy of which has been append ed with this petition (again without permission) in which, on one hand, he asserts that the shop in dispute was mortgaged to him and thereafter in paragraph No.3 of the plaint, he asserts that the vendor orally agreed to sell the shop in dispute to the petitioner .
14. The above assertions would demolish the case of the petitioner with regard to subsistence of any mortgage in view of the fact that if the mortgage was in place why would he enter into an oral agreement to sell with the vendor for the sale of the shop in dispute. This clearly shows that if at all there was any mortgage, it was for 2 years which came to an end in 2014 and was substituted with an alleged oral agreement to sell.
15. Another aspect which further weakens the stance of the petitioner is that a perusal of the record would show that for establishing his right in furtherance of the oral agreement to sell, a suit for specific performance has been instituted by the petitioner against the respondents which is pending adjudication. In this back drop and keeping in view the judgments passed by the Honourable Supreme Court of Pakistan reported as Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others (2003 SCMR 1416 ), Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), Mst.
BOR Bibi and others v. Abdul Qadir and others (1996 SCMR 877), Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242), Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 S.C. 382) and Allah Yar and others v. Additional District Judg e, and others (1984 SCMR 741) wherein it has been held that mere agreement to sell does not confer any right of ownership upon a person/vendee/tenant hence the said vendee in the ejectment proceedings cannot claim protection of his possession over the property in dispute under Section 53- A of the Transfer of Property Act, 1882, hence, the landlord would retain his status and the relationship between the parties shall remain to be in field and if the ejectment of the tenant is ordered and possession is taken over, his possession will be re-transferred to him, if he succeeds in his suit for specific performance. It has also been held by the Honourable Supreme Court of Pakistan in a judgment reported as Muhammad Iqbal Haider v. 1st ADJ, Karachi Central and others (PLD 2018 SC 35) that the relationship of landlord and tenant is not severed even if the execution of the agreement to sell is admitted for the reason that once a tenant is inducted in the premises in dispute, he cannot claim any exemption from payment of rent on account of an agreement to sell or institution of suit for specific performance.
16. In these circumstances, respondent No.1 has rightly ordered ejectment of the petitioner as he has failed to prove his stance. It shall not be out of place to mention here that even if under the impugned judgment, possession of the shop in dispute is taken over by respondent No.3 and ultimately petitioner succeeds in his suit, he will get the requisite relief which he has asked for in the said suit, however , pendency of the suit filed by the petitioner is no bar for seeking ejectment of the petitioner .
17. As regards the judgments referred by the learned counsel for the petitioner , the same having different facts and circumstances are not applicable to the case in hand.
18. For what has been discussed above, since the learned counsel for the petitione r has not been able to point out any jurisdictional defect or procedural impropriety in the impugned judgment, therefore, no interference can be made by this Court.
19. In view of the above, this petition fails and the same is dismissed.