ABDUL HAMEED BALOCH, J.----Through this common judgment I intend to dispose of F.A.O. Nos. 24, 25 and 26 of 2020, wherein the landlord/appellant instituted eviction Applications Nos.1, 2 and 3 of 2019 in the court of Rent Controller/Civil Judge-IX, Quetta (trial Court) for ejectment of the respondents from the Shops Nos.4, 5 and 6 (shops in question), which is part and parcel of property bearing Mutation Entry No.665, Khasra No.91, situated at Mouza Ward No.34, Tappa Urban No. II, Tehsil and District Quetta under Municipal No.4-7 / 7 situated at Art School Road, Quetta (hereinafter shops in question) on the grounds of willful default and personal bona fide use. On completion of proceedings the trial court dismissed the applications vide separate judgments and decrees even dated 27.11.2021 ("impugned judgments and decrees")
2. The succinct facts of the case are that the appellant/landlord filed the aforesaid applications before the trial court with the averments that he is owner of the shops in question; that in the year 2014 he rented the shop No.6 to respondent (respondent No.1 in FAO No.24 of 2020) in the sum of Rs.20,000/- with advance Rs.1,00,000/- as surety deposit and rented the shop No.4 to respondent (respondent No.1 in FAO No.25 of 2020) in the sum of Rs.15,000/- per month with advance Rs.1,00,000/- as surety deposit whereas in the year 2012 rented the shop No.5 to respondent (respondent No.1 in FAO No.26 of 2020) in the sum of Rs.20,000/- per month with advance Rs.1,00,000/- as surety deposit. In this regard a rent agreement was executed between the appellant and respondents; that since year 2016 the respondents stopped paying rent of the shops in question and proved themselves as bad paymaster and fully defaulted in payment of monthly rent of the shops in question; that the shops in question are also required to the appellant for his personal bona fide use and occupation.
3. The Respondent/tenant contested the applications by filing rejoinder on legal as well as factual grounds stated that neither the applicant is owner of property in question nor they (respondents) have ever been inducted as tenant of appellant, rather Muhammad Sarwar is the owner of the shops in question and stated that they are employees of Muhammad Sarwar.
4. Out of pleadings of the parties the trial court framed the following issues:
1. Whether there exists any relationship of landlord and tenant between the parties?
2. Whether the respondent is a bad paymaster and troublesome tenant?
3. Whether the applicant is entitled for the relief claimed for?
4. Relief?
4. Whether the respondent No.1 has sublet the shop in question to respondent No.1? (In FAO No.03/2019)
5. The parties led evidence in support of their respective contention. On conclusion, the trial court vide separate judgment and decree, even. dated 27th November, 2020 dismissed the eviction Applications Nos.1, 2 and 3 of 2019. Hence these appeals.
6. Learned counsel for the applicant contended that the impugned judgments and decrees are contrary to law and fact and based on misreading of evidence; that the appellant rented the shops in question to the respondents with surety in advance and rent agreements were also executed but the respondents failed to pay the rent, which establishes that the respondents are bad paymaster; that the appellant examined PW-3, who produced revenue record, in which the appellant and his family members are recorded owners of the shops in question.
7. Learned counsel for respondent vehemently opposed the contention of applicant stated that the respondents have neither rented any shop from appellant nor he is owner of the shops in question, rather one Muhammad Sarwar is owner of the shops in question and in this regard, Muhammad Sarwar filed Civil Suit for Correction of Mutation. Entries.
8. Heard. Perused the record with the assistance of learned counsel for parties. The record transpires that the appellant/applicant produced rent agreements executed between the parties in presence of the witnesses. The appellant produced marginal witnesses of the agreement is AW-1 Muhammad Usman and AW-2 Janan. Both the witnesses in their deposition confirm the factum of rent agreements. The AW-4 Abdul Rehman, Oath Commissioner produced the rent agreement as Ex-AW/4-1 to AW/4-C. The record further depicts that the appellant produced AW-3 Shahab-ud- Din (Patwari), representative of Tehsildar City Quetta who produced the transferred No.665, Ward No.34, Khewat/Khatooni No.72/90 as Ex-AW/3. It appears that the appellant, his mother and sisters are owner of the land in question. The respondents alleged that one Muhammad Sarwar purchased the suit property from appellant but neither produced any sale deed in order to confirm the factum of sale and purchase. Mere bald assertion cannot rebut the document. Though the mutation entries are not title documents but it carries presumption of truth. Even otherwise the Rent Controller is not mandated by the law to determine the question of title of the property assuming the role of Civil Judge. Reliance is placed on the case of Ahmed Ali alias Ali Ahmed v.
Nasar-ud-Din PLD 2009 SC 453, whereby it has been 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."
9. The respondent contented that neither they are tenant of the appellant nor the appellant is owner of the shop in question, rather one Muhammad Sarwar is the owner of the shops in question.
The respondents witnesses admitted in cross-examination that the suit land is still in the name of appellant in the revenue record. Neither respondents nor RW-Muhammad Sarwar (who claimed the ownership of the property) produced any document in respect of ownership. There is no cavil to the proposition that who alleges something has to prove the same. RW Muhammad Sarwar alleged that he purchased the property in the year 2011 in sum of Rs.1,68,95,000/- but astonishingly did not transfer the land in question in the revenue record. The Rent Controller is not Civil Court, therefore it is not mandate of the Rent Controller to decide the question of title/ownership. Even as per dictum laid down by the Hon'ble Supreme Court of Pakistan that the ownership may not always be determining factor to establish the relationship of landlord and tenant between the parties. In this regard reliance is placed on the case of Shajjar Islam v. Muhammad Saddique PLD 2007 SC 45, whereby it has been held as under: "This is settled proposition of law that a landlord my 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."
10. The trial court merely relied upon the fact that Muhammad Sarwar filed suit for specific performance of agreement, which is pending before civil court of competent jurisdiction. Mere pendency of suit for specific performance by itself is no ground to held that there is no relationship of landlord and tenant. Even in circumstances of possession by the tenant was no other capacity but as tenant. In this regard reliance is placed on the case of Allah Yar and others v. Additional District Judge and others (1984 SCMR 741) as well as on the case of Mian Muhammad Abdullah v.
District Judge Sahiwal and others (PLD 1985 Lah 467), whereby it was laid down unambiguously that ejectment proceedings cannot be stayed on the plea that tenant has in possession such an agreement. Even pendency of a suit for specific performance of the agreement was held no ground to avoid eviction of the tenant by the Rent Controller. In the case of Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877) it was held that tenant could not be allowed to retain his possession on such agreement till decision of their title by the Civil Court of competent jurisdiction. The tenant denied the relationship of landlord and tenant stated that one Muhammad Sarwar filed civil suit wherein disputed the title of landlord, in such circumstances it is settled principle of law that the tenant is bound to first of all deliver the possession of the premises in question then to contest his proprietary right in the suit property. In this regard reliance is placed on the case of Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320, whereby it has been held as under: "5. We have heard both the learned Advocates Supreme Court. It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. In this regard reference can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 375), Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877). In so far as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature. Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter. Consequently, the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller. In the tentative rent order the learned Rent Controller has carried out such summary exercise and decided the relationship between the parties to exist.
11. The record transpires that the applicant recorded his statement on oath. Despite lengthy cross- examination the respondent failed to extract any material which benefit to them. The statement of applicant is firm in all aspect. The law does not impose, any embargo on person to establish any business. Sole testimony of the landlord is sufficient to M establish personal bona fide need. In this regard reliance is placed on the ease of Bakht Zamin Shah v. Faiz Muhammad Khan 2003 CLC 1121 whereby it has been observed as under: "6. In determining whether a particular premises required by landlord for personal use, fundamental importance is to be attached to statement of landlord himself. Section 13(4) of the Ordinance is an adequate safeguard against abuse of provisions ''of section 13(3) (a) (ii) by landlord. Where statement of landlord is confidence-inspiring and no material is on record to detract from its veracity, such statement should be given all important weight and shall not be treated as statement of an interested person (1992 SCMR 437). A landlord is primarily responsible for establishing his claim, through cogent and reliable evidence. The need has to be reasonable and bona fide and not actuated by bad faith and ulterior motive. Good faith means honestly and not motivated by oblique motive."
For the above reasons, the FAO Nos.24, 25 and 26 of 2020 are accepted. The impugned judgments and decrees, dated 27th November, 2020, passed by the Civil Judge-IX/Rent Controller Quetta are set-aside. Resultantly Eviction Applications Nos.1, 2 and 3 of 2019 are allowed. The respondents are directed to vacate the premises i.e. Shop Nos.4, 5 and 6, which is part and parcel of property bearing Mutation Entry No.665, Khasra No.91, situated at Mouza Ward No.34, Tappa Urban No. II, Tehsil and District Quetta under. Municipal No.4-7/7 situated at Art School Road, Quetta, within a period of three months.