ANWAAR HUSSAIN, J. Through the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner who is in possession of House No.302, opposite Janazagah Shah Habib within the Municipal Committee, Layyah (hereinafter referred as "the rented premises") has laid challenge to judgment dated 25.08.2020 passed by the learned Additional District Judge, Layyah, whereby order dated 04.05.2018 passed by the learned Rent Tribunal, Layyah, in eviction petition filed by respondents Nos.03 to 07 (hereinafter referred as "the respondents") against the petitioner and respondents Nos. 8 to 13, was set aside and the eviction petition filed by the respondents was accepted.
2. Briefly stated facts of the case are that the respondents filed eviction petition under the provisions of the Punjab Rented Premises Act, 2009 (hereinafter referred as "the Act, 2009"), with the contention that the rented premises was owned and possessed by predecessor-in-interest of the respondents and after the death of their predecessor-in-interest, they are the owner of the rented premises whereas the petitioner, being real paternal uncle of the respondents, was only allowed to reside in the rented premises since he had no abode to dwell in, however, initially no fixed amount of rent was settled but nominal amount was paid by the petitioner to predecessor-in-interest of the respondents, from time to time, as tenancy was oral in nature, on account of the cordial relation between the parties; that motivated out of lust and malice, the petitioner in the year 1998 instituted a suit for perpetual injunction with respect to the rented premises with the claim that predecessor-in-interest of the respondents is interfering into the lawful possession of the petitioner, however, the said suit was withdrawn when a statement was got recorded by predecessor-in- interest of the respondents that no unlawful act will be performed to dispossess the petitioner.
Subsequent thereto, as contended, through the intervention and mediation of the locals, on 01.07.2001 at 6.00 pm in the presence of witnesses (AW-2 and AW-3), the petitioner orally agreed to pay monthly rent at the rate of Rs.1,000/- per month, where after he paid the said rent regularly but when the petitioner was called upon by the respondents to vacate the rented premises, the former put off the request on one pretext or the other and the petitioner not only continued to delay and defer the vacation rather instituted another civil suit for perpetual injunction on 30.10.2012, which was dismissed as withdrawn on 02.04.2013 on the ground that the petitioner instituted yet another suit on 25.03.2013 wherein the petitioner claimed the ownership of the rented premises. In suit instituted on 25.03.2013, the respondents filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter "the. C.P.C.") that was accepted and the plaint of the suit submitted by the petitioner was rejected, vide order dated 15.03.2017 and the said finding was upheld in appeal, where after no further proceedings took place. It is further averred in the eviction petition that the petitioner got constructed six shops on the rented premises and handed them over to respondents Nos. 08 to 13, which is yet another violation of the tenancy agreement. The eviction petition was resisted by filing application for leave to appear and contest, which was allowed and the following issues were framed: "ISSUES
1. Whether the relationship of landlord and tenant exists between the petitioners Bilal Hussain etc. and Khadim Hussain respondent No.1?OPA 2 Whether the respondent No.1 Khadim Hussain sublet the suit shops to respondents Nos.2 and 6 without any authority?OPA 3 If issues Nos.1 and 2 are proved in affirmative, then whether the petitioners are entitled to get eviction order against the respondents on the grounds set out in the petition?OPA
4. Whether the petitioners are entitled to get outstanding amount of rent Rs.55000/- past and future rent with an enhancement of 25% per annum from October 2012 to April 2017?OPA
5. Order."
The parties led their respective evidence which was recorded and the learned Rent Tribunal was pleased to dismiss the eviction petition on the ground that the respondents have failed to establish the relationship of landlord and tenant, which finding was upset through the impugned judgment by the appellate court.
3. Learned counsel for the petitioner submits that the learned appellate court below misread the evidence and overlooked the fact that even though the rented premise is in the ownership of the respondents, on papers after the demise of their predecessor-in-interest, the petitioner got into the possession of the rented premise not as a tenant as per admission of the respondents as no rent was fixed by and between the parties with respect to the rented premise. Adds that fixation and existence of rent formulates the basic requirement of tenancy relationship sans which no tenancy relationship can exist. Further contends that the learned appellate court below erred in law by deciding the appeal only on the basis of ownership ignoring the fact that mere ownership does not ipso facto convert respondents into landlord nor the same invariably creates tenancy relationship.
4. Conversely, learned counsel for the respondents submit that the petitioner in connivance with the applicants of C.M. No.2441/2022 intends to usurp the property of the respondents (the rented premises). Adds that having clearly admitted the respondents to be the owners of the rented premise, the petitioner cannot continue with the unlawful possession of the same. Places reliance upon "Shajar Islam v. Muhammad Siddique and 2 others" (PLD 2007 SC 45) as well as "Mst. Azra Riaz v. Additional District Judge and others" (2021 CLC 623 Lahore) to contend that once the title of the landlord is proved, the occupant is presumed to be the tenant. Finally submits that the applicants of C.M. No.2441/2022 only intend to prolong the matter inasmuch as their application to become party under Order 1, Rule 10 of the C.P.C. before the learned Rent Tribunal was dismissed and the same has attained finality as no further proceedings were initiated by the applicants.
5. Learned counsel for the applicants in C.M. No.2441/2022 submits that predecessor-in-interest of the respondents was no more the owner of the rented premises inasmuch as the rented premises was adjusted in favour of one Mst. Muniran Bibi, who is predecessor-in-interest of the applicants and in respect of the same, appeal is pending before the court of competent jurisdiction, whereby order of adjustment dated 20.12.1982 passed by Extra Assistant (Colonization) Officer, Layyah is in question. Adds that as per the revenue record, Mst. Muniran Bibi is reflected as owner of the rented premises and, hence, in this manner the title documents of the respondents are in question.
6. Arguments heard. Record perused.
7. Judgments of the fora below are at variance and the instant lis involves an important legal question to be adjudicated by this Court to examine whether valid tenancy can be created without settlement of rent under the Act, 2009 more particularly when the purported landlord establishes his title to the rented premises, however, before examining the same and rendering a decision thereon, it is pertinent to decide the fate of C.M. No.2441/2022 whereby the applicants thereof seek to be impleaded as party in the instant petition. In this regard, suffice to state that the dispute as to whether the rented premises has been adjusted in favour of Mst. Muniran Bibi or not has not reached its logical conclusion and matter is still sub-judice before the Additional Commissioner (Revenue), Dera Ghazi Khan which, as and when decided, would have its own consequences and ramifications as per law, therefore, the applicants are not necessary parties to be added and heard at this stage. Moreover, the applicants have no legs to stand in the instant proceedings inasmuch as the applicants filed an application to become party under Order 1, Rule 10 of the CPC before the learned Rent Tribunal, which was admittedly dismissed and same has attained finality as no further proceedings were initiated by the applicants. Hence, the C.M. No.2441/2022 stands dismissed.
8. Reverting to the legal question involved and for rendering its opinion thereon, this Court feels imperative to examine the provisions of the Act, 2009 and thereafter apply the same to the facts of the case in hand. The Act, 2009 mandates that rented premises must be rented out through a written tenancy agreement, however, an 'oral tenancy' has not been barred under the Act, 2009.
Cases reported as "Rana Abdul Hameed Talib v. Additional District Judge Lahore and others"
(PLD 2013 SC 775) and "Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others" (2013 SCMR 1520) are referred. Section 2 of the Act, 2009 is the basic provision, which contemplates the definition of the most relevant terms. Under clause (d) of Section 2 of the Act, 2009, the term 'landlord' means the owner of a premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises. Similarly, the term 'tenant' means a person who undertakes or is bound to pay rent as consideration for the occupation of a premises by him or by any other person on his behalf and includes persons who are legal heirs of such tenant or sub-tenants thereof etc. A careful perusal of both the terms unequivocally depicts the payment and receipt of rent as sine qua non for establishing the relationship of tenancy between the parties. Thus, a "premises" and "agreed rent" with regards to such "premises" forms the necessary constituents of existence of tenancy relationship and the absence of either of the two would imply the absence of any tenancy relationship. It would not be unsafe to state that the element of rent completes the relationship of tenancy. In the instant case, while analyzing the evidentiary resume of the case, the learned Rent Tribunal reached the conclusion that the respondents failed to establish the relationship of landlord and tenant whereas the learned appellate court held otherwise mainly on the ground that since the petitioner failed to prove his contentions regarding the title of the rented premises, therefore, he is presumed to be the tenant under the oral tenancy agreement. During the course of arguments, learned counsel for the respondents have supported the findings of the learned appellate court below while drawing strength from the judgment of the august Supreme Court in case of Shajar Islam supra, wherein the Hon'ble Supreme Court has held that once the purported landlord establishes title to the rented premises, a presumption of existence of tenancy relationship comes into being out of that title, which shifts the burden upon the occupant to rebut the same that he is not holding the premises in question on rent. There is no denial to such a presumption, however, it merely creates a presumption and to treat such presumption as a sole and conclusive ground for eviction in each and every case may not be safe administration of justice as every case has its own peculiar facts and attending circumstances and it is the preponderance of evidence and its weighing up, on the basis of which, the acceptance or rejection of eviction petition is to be determined and decided.
The presumption emanating out of the title/ownership is merely one element of evidence, which has to be read with the rest of the evidentiary material as well. The instant case is one such unique case turning on its own facts and evidence. The title of predecessor-in-interest of the respondents to rented premises though could not be forcefully disputed by the petitioner through cogent evidence, however, admittedly such a presumption is to be weighed in keeping in view the stance taken by the .respondents in their eviction petition and the evidence led by the respondents. The dicta laid down in case of "Shajar Islam" supra followed by this Court in case of "Mst. Azra Riaz" supra is helpful in those cases where the ejectment petitioner, being the owner of the rented premises, alleges that the occupant thereof was inducted as the tenant upon certain settled and agreed terms and conditions and it is presumed upon establishment of the title that the occupant is tenant unless proved otherwise by the said tenant. In both referred cases, prima facie it appears that the landowners thereof clearly asserted that the induction of the occupant of rented premises of said cases was upon certain agreed terms and condition including the amount of rent, however, in the instant case, the pleadings and evidence of the eviction petitioner reflect that the possession of the premises came into the hand of the petitioner not as a tenant as the essential element of rent was not settled and agreed. In paras 2 and 4 of the eviction petition, the respondents themselves asserted as under: (Emphasis supplied)
Whereas one of the respondents, namely, Bilal Hussain appeared as AW-1 and while being cross- examined stated as under: (Emphasis supplied)
Similarly, the main witness of the respondents namely, Kalu Khan (AW-3) stated as under: (Emphasis supplied)
When above referred stances taken by the respondents' side are put in juxtaposition, the same clearly reveals that on one hand the initial induction of the petitioner side has been admitted to be without settlement as to any amount of rent payable whereas in respect of the later establishment of an oral tenancy in the year 2001 for payment of Rs. 1,000 per month as rent, the stance is self- contradictory inasmuch as in the eviction petition it has been stated by the respondents that the parties agreed orally for payment of rupees one thousand in presence of Kalu Khan (AW-3) whereas said AW-3 while being cross-examined contradicted the stance taken in eviction petition and one taken by AW-1 by stating that the tenancy was initially written in the year 1998 and then in 2001. Here it is worth mentioning that mere acknowledgment that the petitioner was put into occupation of the rented premises without settlement of any rent takes the case out of the purview of applicability of Act, 2009. At this juncture, it would be essential to reiterate that the existence of tenancy relationship makes up the jurisdictional fact for the exercise of jurisdiction by the learned Rent Tribunal under the Act, 2009 and the agreed rent between the parties, in turn, as stated above, is a sine qua non of existence of tenancy relationship whereas the scanning of evidence reveals that the respondents failed to prove the same. Even otherwise, the stance that the oral agreement was without any fixed and agreed rent makes the agreement uncertain and hence, void in terms of Section 29 of the Contract Act, 1872.
9. Dealing with somewhat similar facts and circumstances, in case titled "Yasin Khan v. Additional District No. VII, District Judge West, Islamabad and 2 others" (2019 YLR 2894 Islamabad), it was held as follows: "15. The petitioner failed to bring on record any evidence to prove that respondent No.3 had paid rent to him at any stage. Since it was the petitioner who had invoked the jurisdiction of the learned Rent Controller, it was obligatory upon him to have proved the existence as to the factum of the relationship of landlord and tenant between himself and respondent No.3. The petitioner neither produced any independent witness, nor produced any rent receipts to show that such a relationship existed between the petitioner and respondent No.3. Since an eviction order can only be passed by the Rent Controller against a tenant or a person who has been put in possessions of the rented premises by the tenant, it is essential for the eviction petitioner to prove that the person whose eviction is sought, is in occupation of the premises in his capacity as a tenant and none other. There are other remedies available under the law to the owner of immovable property to have an unlawful occupant or a trespasser, who is not a tenant evicted from such property."
(Emphasis supplied)
Similarly, in "Muhammad Ibrahim v. Niaz Muhammad" (2016 CLC 609 Balochistan), it has been held that where there was even no specific oral evidence stating payment of rent to the ejectment petitioner by the purported tenant, or any other act on part of the latter, which determined his status as of tenant of the ejectment petitioner, the relationship of tenancy is not proved.
10. Much emphasis has been laid down by the respondents that the petitioner side has put forth its defence, which has been wrapped in an adjustment and exchange of inherited property of the petitioner with the rented premises but all such attempts to challenge the title of predecessor-in- interest of the respondents has been failed as nothing favourable is available on record and the plaint in the last suit for declaration titled as "Khadim Hussain v. Manzoor Hussain" instituted by the petitioner was also rejected, vide order dated 15.03.2017 against which the petitioner preferred an appeal before the learned Appellate Court, which was also dismissed vide order dated 07.10.2017 and the petitioner did not assail the above-said order dated 07.10.2017 at any forum and hence, the same attained finality, therefore, title of the respondents is not under any clog and the presumption of existence of tenancy relationship holds the field. In this regard, needless to mention that predecessor-in-interest of the respondents, while submitting his written statement in the suit instituted by the petitioner, as well as the statement of the former recorded on 02.04.2013, on the basis of which the said suit was withdrawn, never took the stance that the petitioner was inducted. as tenant of the rented premises rather stated in the written statement that the petitioner is an illegal occupant. Even otherwise, the failure of the petitioner to successfully challenge the title of the respondents does not ipso facto transform the relationship of the petitioner and respondents into that of tenancy a4 the possession of person may come in ways other than as a tenant (for instance as licensee, trespasser, etc.) and such possession may be recovered by owner having title by means and ways other than by filing an eviction petition. Thus, in order for an eviction petition to succeed and exercise of jurisdiction by the learned Rent Tribunal under the Act, 2009, it is necessary that the respondents establish their own case independent of the failure of petitioner to successfully challenge their title. In the instant case, the respondents asserted a particular fact regarding existence of the relationship of tenancy between the parties on the basis of an oral agreement and was under obligation to prove the same, however, their own witnesses contradicted their stance while being cross-examined, therefore, the case of respondents squarely falls under the purview of maxim "Allegans Contraria Non Est Audiendus (A person who alleges things contradictory to each other is not to be heard).
11. The above referred discussion leads to the conclusion that settlement of rent, as examined hereinabove is one of the basic requirement for the establishment of landlord-tenant relationship and in the absence of the same there cannot be an oral tenancy. Similarly, in case where settlement of rent is not alleged in the eviction petition and thereafter not proved, an eviction petitioner cannot succeed merely on the ground of presumption that an eviction petitioner, being owner of the rented premises, is also the landlord. It is however observed rather reiterated that there are other remedies available under the law to the owner of such an immovable property to have an unlawful occupant or a trespasser, who is not a tenant, evicted from such property, which the respondents may avail, if so advised and findings rendered herein do not confer any title upon the petitioner qua the rented premises.
12. In view of the above discussion, this Court finds merit in this constitutional petition and the same is allowed and the judgment passed by the learned appellate court is set aside and the order dated 04.05.2018 passed by the learned Rent Tribunal is restored and the eviction petition of the respondents is dismissed.