MUHAMMAD NAEEM ANWAR, J.- Through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the judgment and decree of the learned Additional District Judge/Izafi Zila Qazi-III, Swat dated 12.08.2023, whereby their appeal against the judgment and decree of the learned Rent Controller dated 13.10.2022 allowing the ejectment petition of the respondents, was dismissed.
2. Essential facts for disposal of this petition are that respondents No.1 to 3 filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance of 1959) against the petitioners for their eviction from rented premises i.e., a house, fully described in the headnote ,-21 of the application on the ground that the rented house alongwith others properties were the ownership of their predecessor in interest namely Bakht Mand and Said Mashal, which have been properly partitioned amongst them and rented premises were handed over to the predecessor in interest of the applicants/landlords who handed over it to Sarkar and after his death now the petitioners are in possession of the house against rent of Rs.1,000/- whereas, their predecessor in interest was paying the rent regularly on yearly basis but since October, 2012, the present petitioners have not paid the rent fo them, as such, the petitioners/ tenants have become willful defaulters. It was also alleged that the respondents are in need of the house for personal use, for which, the petitioners were served with a notice. The application was resisted by the petitioners on the ground that no relationship of the landlord and tenant exists between the parties. It was averred that the house in question has never remained the ownership of respondents No.1 to 3 nor their predecessor or his brother was the owners of it, thus, the contention of the private partition is against the fact. They have also taken a plea that the disputed house was the ownership of Badshah Sahib (the ex-ruler of State of Swat) which was in possession of their predecessor in interest as it was given to him in lieu of services rendered by him to Badshah Sahib Arid the owners have never objected to the possession of the disputed house. After the death of Badshah Sahib, the disputed property was devolved upon Shahzada Sultan-e-Rome. It was averred that the petitioners have installed elcetricity meter and water connection. They have requested for summary dismissal of the application filed against them. On completion of trial, the application was allowed by the learned Rent Controller through its judgment and decree dated 13.10.2022, where-against the rent appeal filed by the present petitioners was dismissed by the learned Additional District Judge/Izafi Zila Qazi-III, Swat through impugned judgment and decree dated 12.08.2023, hence, this writ petition.
3. C.Ms No:1700 & 1980-M of 2023: Through these applications, the petitioners have sought permission of the Court for placing on file the attested copies of the documents appended therewith. As the respondents No.1 to 3 have not resisted the applications besides the documents are attested copies, which as per contention of the petitioners are necessary for an appropria4te decision iiz this controversy and the contents the same have. been, duly verified on oath through the affidavits, therefore, both these applications are allowed and the documents appended therewith are hereby read as part and parcel of the instant petition.
4. MIS. Shah Salam Khan and Engr. Shah Faisal Khan, Advocates representing the petitioners contended that the description of the property is not correct in the ,headnote of the application and that the disputed house was the ownership of Badshah Sahib (the ex-ruler of Swat state), which in lieu of services provided by the predecessor in interest of the petitioners to Badshah Sahib was given to him and since then they are enjoying its possession. According to them the respondents could not substantiate their contention regarding the existence of the alleged relationship of landlord and tenants, thus, they are required to get resolve the issue from the Court of competent jurisdiction and till then, the application, vide which, they are seeking ejectment of the petitioner needs dismissal. It was also vociferated that since the ownership of the disputed house was controverted- by the legal heirs of Badshah Sahib, who despite the resistance of respondents No.1 to 3 were arrayed as a party, have also filed civil suits against respondents No.1 to 3 and that since there is no written agreement of tenancy as alleged by respondents No.1 to 3 nor the petitioners have ever paid any rent to them, therefore, the application could not be proceeded against the petitioners until the matter is resolved through the Court of competent jurisdiction. In support of their contentions, they made reliance on the cases of "Kaleem Ullah Khan Vs. Nasib-ur- Raahman alias Nasib Ullah and 02 others" (2022 YLR 990), "Mushtaq Ahmad vs. Favaz and others" (2021 MLD 1410, Peshawar), " Rehmatullah Vs. Ali Muhammad and another" (1983 SCMR 1064), "Province of Puniab through Education Secretary and another Vs. Mufti Abdul Ghani" (PLD 1985 Supreme Court 1), "Mohammad Fahim Vs. Mohammad Faiz and 08 others" (2021 YLR 1608, Sindh), "Muhammad Ibrahim Vs. Niaz Muhammad' (2016 CLC 609), " Mst. Nasira Afridi Vs. Muhammad Akbar" (2015 MLD 171, Lahore), "Ghulam Rasool through LRs and others Vs. Muhammad Hussain and others" (PLD 2001 SC 119), "Mrs. Azra Riaz Vs. Additional District Judge and others" (2021 .CLC 623, Lahore), "Shajar Islam Vs. Muhammad Siddique and 02 others" (PLD 2007 SC 45), "Sarfraz Vs. Mukhtar Ahmad and others" (2016 CLC Note. 48, Lahore), "Basir Ahmad and 03 others Vs. Muhammad Aslam and 06 others" (2003 SCMR 1864), "Javed Ahmad Mir Vs. Muuhammad Afzal and others" (2022 CLC 68, Islamabad), "Zahoor-ud-din Vs. Haji Hussain through his legal heirs" (PLD 1991 Karachi 205), "Muhammad Azam Vs. Muhammad Abdullah through LRs" (2009 SCMR 326) and "Mst. Imtiaz Begum Vs. Mst. Sultan Jan and others" (2008 SCMR 1259).
5. Contrarily, Barrister Dr. Adnan Khan, Advocate appearing for respondents No.1 to 3 submitted. that through application for production of additional evidence, they have placed on file the receipts, through which, the rent of the house was received on 30.06.1994, 01.06.1994, 01.05.1995, 31.07.85, & 02.08.1986 and in the statement of APW-1 all these receipts. were properly tendered in evidence and exhibited besides crossed examined by the petitioners. According to him, the suit which was filed by the royal family /legal heirs of Badshah Sahib was later on withdrawn after their impleadment in the array of the respondents before the learned Rent Controller; that they have not pursued their application, with an addition that the present petitioners are deriving title from the royal family (legal heirs of Badshah Sahib), thus, they could file a suit before the civil Court for determination of their rights against the royal family/ legal heirs of Badshah Sahib and till then, they have got no right to remain in possession because they have refuted the contention of respondents No.1 to 3 and on the basis of the receipts pertaining to rent, placed on record, respondents No.1 to 3 have proved the existence Of relationship as that of landlords and tenants.
He also submitted that for the purpose of seeking ejectment, only the owners could not file the application but the landlord may submit the application before the Rent Controller for ejectment of the tenant but in the instant case when relationship has been proved and the petitioners could not deny from it or overturn the Stance of respondents No.1 to 3, their status has become as that of trespassers and encroachers and law did not favour an encroacher. Lastly, he submitted that the learned fora below have concurrently decided the controversial questions of facts and this Court in writ jurisdiction will not indulge into intricate question of law and facts. In suppOrt of his contentions, he placed reliance on the cases of "Ahmad All alias All Ahmad Vv. Nasar-ud-Din and another" (PLD 2009 SC 453), "M. Hamad Hussain Vs. Mst. Isma Bukhari" C.P No.1418 of 2023 decided by the apex Court on 17.07.2023, "W.P No.973-M/2023" decided by this Court on 13.10.2023 and "Mrs. Azra Riaz Vs. Additional District Judge and others" (2021. CLC 623, Lahore).
6. Argunients heard and record perused.
7. Insofar as the pedigree-table placed on file by the petitioners pertaining to _Muhammad Zarin s/o Shah Hussain and Bakht Mand son of Shamshi, from whom respondents No. I to 3 are deriving their title is concerned, suffice it to say that the matter before this Court is the outcome of an application submitted before the Rent Controller for ejectment of the petitioners/tenants from rented house, therefore, this document, at this stage, is of no use and similar is the case of the contention of Mr. Shah Salam Khan, Advocate that the respondents No.1 to 3 belong to Mula Khel and as per entries of the first ever settlement, record of rights of the years 1985-86, Muhammad Zarin s/o Shah Hussain and Bakht Mand s/o Shamshi were recorded as malikan-e-qabza, thus, they will remain owners to the extent of their purchased property as they are not the original owners' in the revenue estate of Mingora but this submission of Mr. Shah Salam Khan, Advocate at this juncture is of no purpose because this is the matter of the tenancy and ejectment of the petitioners and not regarding the determination as to who is the original owner and who is malik- e-qabza or specification of shares in shamilat as known in this particular area as daftar. The petitioners are deriving their title from the legal heirs of Badshah Sahib who have submitted an application and were impleaded as a party in the ejectment application but they have not pursued their application even before the Rent Controller rather opted to file a suit titled Mst. Bevan Naz Parwar and others Vs. Muhammad Avub and others, through which, they were seeking declaration, perpetual injunction and recovery of possession wherein respondents No.1 to 3 were also arrayed as a party but their suit was diSmissed as withdrawn and nothing is available on record contrary to the submissions of learned counsel for respondents No.1 to 3. It is pertinent to mention that petitioner No.1 iFazal Khaiq entered into the witness box as RW-1, who in his cross examination deposed that: It is of worth perusal that he admitted regarding the civil suit in the following terms.
This cross examination of petitioner No.1 in absolute terms with categoric stance has left nothing for further process in the instant petition or determination of the rights by the royal family against respondents No.1 to 3 and for that matter for respondents No.1 to 3 to get resolve their title dispute against the royal family. When the persons, from whom, the petitioners were deriving title, have shown their no concern with disputed house then they could not be directed to approach to the civil Court especially, when the present petitioners have not been able to show any locus standi for resisting the ejectment sought by respondents No.1 to 3 against them. The receipts of rent were placed on record, though in that respect APW-1 was cross examined at length but nothing contrary to the interest of the respondents No.1 to 3 could be brought on record by the petitioners. It is worth to mention that much stress was laid on the notification of 1972 issued under MLR-122 with Schedule-III but all this pertains to the ownership of the royal family (legal heirs of Badshah Sahib) who appeared before the learned Rent Controller, impleaded as a party in the ejectment and later on have withdrawn from the contest against the respondents No.1 to 3 and have also filed a civil suit against respondents No.1 to 3 but that suit was dismissed for their no interest in the disputed house, in such an eventuality, the possession of the petitioners of the disputed house is nothing but in the capacity of trespassers or encroachers when they have refuted the tenancy of respondents No.1 to 3. In accordance with law, when tenancy has been disputed, the only issue is framed as to whether there exists any relationship of landlord and tenant and if it is proved, straightaway the ejectment order is passed against the tenant, otherwise the application of the .landlord is dismissed. In the instant case, the tenancy has been proved by the respondents No.1 to 3 and the present petitioners have not been able to negate the version of respondents No.1 to 3, therefore, the learned Rent Controller and for that matter, the learned Appellate Court have Properly dilated upon the facts of the case and applied law in its true perspective. The petitioners have not been able to point out any illegality, irregularity or jurisdictional defect in the concurrent findings of the facts rendered by the learned fora below.
8. Thus, for the reasons discussed above, this petition, being devoid of merits, is Hereby' dismissed, with no order as to cost.