Shakil Ahmad, J. Muhammad Arif Malik ("petitioner") has filed the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") to call into question the validity of order dated 17.03.2021 and judgments dated 19.02.2022 passed by learned Special Judge Rent, Lahore and learned Additional District Judge, Lahore, respectively, whereby ejectment petition filed by Iftikhar Ahmad Butt ("respondent") was accepted by learned Special Judge Rent, Lahore, however, the respondent was held entitled only to receive arrears of rent from the date of filing ejectment petition i.e. 29.06.2017 at the rate of Rs.9000/- per month till vacation of demised premises, and appeals filed by both the parties were decided by dismissing the appeal filed by petitioner and partially allowing the appeal filed by respondent.
2. Necessary facts, leading to the filing of instant petition are that the respondent filed a petition under section 15 of the Punjab Rented Premises Act, 2009 ("the Act, 2009") seeking eviction of the petitioner from the property bearing No.SWV-3-S-12/A measuring 03-Marlas & 112 Sq-Ft situated at Kamal Street Sanda Khurd, Lahore ("subject property"), precisely on the ground that Muhammad Rasheed, predecessor-in-interest of the petitioner ("mortgagor") being owner of the same agreed to mortgage the subject property with the respondent on 19.06.2000 for a consideration of Rs.200,000/- and in pursuance whereof an agreement regarding condition of mortgage was also reduced into writing wherein it was specifically mentioned that the mortgagor would not occupy the subject property because the possession had been transferred to the respondent after the payment of mortgage amount of Rs.2,00,000/-; however, the respondent signified his desire to rent out the subject property, whereupon mortgagor requested to obtain the mortgaged property on rent @ Rs.9000/- per month and tenancy agreement was made part of the said agreement regarding condition of mortgage. As per respondent's version, after demise of mortgagor, petitioner being legal heir of mortgagor remained in possession of subject property, however, he did not pay any rent despite repeated demands, hence, the eviction petition.
3. Petitioner, in response to notice, filed application seeking permission to appear and defend the matter by initially raising the objection that there existed no tenancy agreement between him and the respondent. He mainly came up with the assertion that he was owner-in-possession of the subject property since 1992 when his real father, through gift deed No.3401, Book No.1, Volume No.1586 dated 11.04.1992 transferred the subject property in his favour. This application was contested by the respondent by filing written reply, however, the application filed by the petitioner was finally allowed vide order dated 05.09.2018 and in view of divergent pleadings of the parties, learned Special Judge Rent, Lahore framed as many as four issues including that of relief and after recording evidence of either of the sides, proceeded to accept the ejectment petition by also entitling respondent to receive arrears of rent only from the date of filing ejectment petition i.e. 29.06.2017 at the rate of Rs.9000/- per month till vacation of demised premises. Both the parties filed their respective appeals, appeal filed by the petitioner was dismissed, whereas appeal filed by respondent was partially allowed by entitling him to recover arrears of rent for the period of three years at the rate of Rs.9000/- per month prior to the institution of ejectment petition, hence this petition.
4. Learned counsel for the petitioner argued that the impugned order and judgments have been passed against the facts and law. To explain the same, he argued that no title document ever existed in the name of mortgagor; as such there existed no question of his entering into any agreement with the respondent. Further adds that as a matter of fact, subject property was owned by petitioner's father, who through a registered document transferred the same in the name of petitioner as back in the year 1992 and since then petitioner is in possession of the same as the sole owner. Further submits that document PT-I is never considered as proof of ownership but unnecessary importance was given to the said document in preference with the registered document through which subject property was transferred to petitioner by the real owner, i.e., father of the petitioner. Learned counsel went on arguing that two transactions, one pertaining to mortgage deal and the other relating to agreement to rent out the subject property, were made through single document only to recover interest on the money advanced through mortgage, as such there was no relationship of landlord and tenant between mortgagor and the respondent and the lawful relationship between the parties, even as per the contents of mortgage deed, would be that of mortgagor and mortgagee, therefore, the petition filed under the provisions of the Act, 2009 was not at all made out. Learned counsel for the petitioner placed his reliance on cases titled "Mst.
Maqbool and others v. Samandar Khan" (PLD 1969 Peshawar 216),"Syed Jamal-ud-Din v. Syed Mobashar Hussain Shah" (PLD 1976 Lahore 187) and "Samandar Khan v. Mst. Maqbool and others" (1974 SCMR 388).
5. As against that, learned counsel for the respondent argued that as a matter of fact, the subject property was owned and possessed by the mortgagor who died issueless and in fact mortgagor obtained loan from the respondent and not only executed a pronote but simultaneously a rent deed was also reduced into writing through a single document, whereafter possession of the subject property was handed over to the respondent and subsequently respondent let out the subject property to mortgagor on rent who paid rent for a certain period of time and then stopped paying the rent.
Learned counsel for respondent went on arguing that the respondent has also filed a suit for recovery under the provisions of Order XXVII Rule 1 & 2 CPC and in that proceeding, it was admitted by the contesting side including petitioner that loan was obtained by mortgagor and that there exists tenancy relationship between mortgagor and the respondent. Learned counsel further emphasized that record of PT-I for the year 1991-92 clearly shows ownership of the subject property with mortgagor by negating the argument that the subject property was in fact owned by Muhammad Hussain, father of mortgagor and the petitioner. Learned counsel for the respondent further argued that both courts below have rightly decided the matter. It has further been argued that concurrent findings of courts below on facts and law cannot be called into question in extra constitutional jurisdiction of this Court and therefore requested that petition in hand be dismissed with cost throughout.
6. Heard learned counsel for the parties. Record so annexed with the petition and the case laws submitted have been perused.
7. Having seen the record annexed with the petition, it reveals that petitioner and mortgagor are sons of Muhammad Hussain Malik, who passed away on 09.11.2007 whereas mortgagor died on 05.02.2002. Document titled as 'Agreement regarding condition of mortgage' Exh:A1 claimed to have been executed by mortgagor on 19.06.2000, is the document on the basis of which respondent filed the Ejectment Petition under section 19 read with section 15 of the Act 2009, precisely, on the ground that mortgagor agreed to mortgage the subject property in lieu of Rs.200,000/- for a period of two years and it was further stipulated in the said document that mortgagor obtained the subject property on rent @ Rs.9000/- per month. From the contents of document Exh:A1, it transpires that both the parties were bound to get registered proper mortgage deed. It was further stipulated in Exh:A1 that if mortgagor fails to pay rent in time, he would be bound to hand over the possession of the subject property to mortgagee. From the perusal of contents of Exh:A1, it further transpires that the same can merely be counted as an agreement to mortgage whereby an amount to the tune of Rs.200,000/- was advanced by the respondent. The contents of Exh:A1 when are seen in their entirety, the same cannot be considered as a mortgage deed and therefore can hardly be considered as either a valid transaction of mortgage within the meaning of section 58 of the Act, 1882 or a charge upon property in terms of section 100 of the Act 1882. The contents of agreement Exh:A1 when are taken on their face value, the same merely deal with a right for the respondent to obtain another document, i.e, a mortgage deed regarding the subject property to be executed by mortgagor. In case titled "Patelkhana Venkataramasami and another v. Imperial Bank of India Rajahmundry and others" (A.I.R. 1938 MADRAS 889), while dealing with the moot point, it was observed that an agreement to mortgage does not create charge. Similar view was taken in case titled "Hukamchand Kasliwal and another v. Radha Kishen Moti Lal Chamaria and others" (A.I.R. 1930 Privy Council 76), wherein it was observed that in view of sections 58 and 100 of the Act 1882, an agreement to mortgage cannot be considered mortgage or charge. A mortgage, as per provisions of section 58 of the Act 1882 is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan. Mortgage, therefore, is merely a charge and not ownership for the reason that mortgage is transfer of interest in the property for the purpose of securing the payment of money advanced. Transaction/deal between respondent and mortgagor even in view of contents of Exh.A1 cannot be categorized as a complete mortgage deal conferring any right whatsoever upon the respondent to further rent out the subject property to the actual owner of the property. It will also not be out of context to mention here that possession of subject property was never handed over to the respondent and similarly no mortgage deed as stipulated in Exh.A1 was ever drawn or executed. Having seen the contents of document Exh.A1 and pleadings of the respondent, it can very safely be resolved that the mortgage deal can hardly be categorized as usufructuary mortgage. A usufructuary mortgage is considered as a contract whereunder the mortgagor transfers possession and usage rights of subject property to the mortgagee while retaining its ownership. The mortgagee is only granted the right to enjoy the income or produce generated by the property during the mortgage period. In the instant case even it is not the case of the respondent that possession of subject property was ever handed over to him in pursuance of any mortgage deal. It is also matter of record that ejectment petition has been filed with the delay of seventeen years.
8. Looking the matter from a different angle, it may be seen that as per contents of Exh:A1, mortgagor claimed himself to be the owner of the subject property on the basis of record of Excise Department. As per the narration of document Exh:A1, the subject property was shown to be ancestral property, however, no detail whatsoever has been given in the said document that as to how and under which mode the ownership of ancestral property devolved upon the mortgagor particularly in the backdrop of the fact that father of mortgagor namely Muhammad Hussain died after the demise of mortgagor. As per record annexed with the instant petition, Muhammad Hussain passed away on 09.11.2007 whereas mortgagor died on 05.02.2002. If the subject property was ancestral property as mentioned in Exh.A1, the same was supposed to be devolved upon the legal heirs of Muhammad Hussain after his demise. Even otherwise, it is by now a settled principle of law that entries in the record pertaining to PT-I in no way confer ownership rights. Reliance may safely be placed on case titled "Muzaffar Khan v. Sanchi Khan and another" (2007 SCMR 181), wherein while dealing with the authenticity of PT-1 it was observed by the Apex Court that any entry in PT-1 maintained by Excise & Taxation Office would not confer any ownership right over the property and such document merely speaks about the right of possession. Mortgagor since was not owner of the subject property, he was not competent to enter into any agreement of mortgage.
It is almost a settled principle of law that no one can transfer a better title than what he himself possesses as expressed by the maxim "nemo dat quod non habet". There is no cavil with the proposition that no mortgage can legitimately be created in respect of property, the title/ownership whereof does not vest in the mortgagor as the mortgagor does not have any explicit authority to create charge upon such property. Reliance in this regard can safely be placed on cases titled "V.E.R.. M.A.R Chettyar Firm v. Ma Joo Teen and others" (AIR 1933 Rang 299), "Messrs Bolan Bank Limited through Attorney v. Messrs Al-Aslam International through Proprietor and another" (2002 CLD 702) and "Australasia Bank Ltd v. Faruaui House Building Corporation Ltd. and 2 others" (PLD 1975 Karachi 870).
9. In the backdrop of above discussion, now the moot point that needs to be determined by this Court is that whether there existed relationship of landlord and tenant between the respondent and the petitioner within of provisions of the Act 2009. When the contents of document Exh:A1 are seen in their entirety, the relationship between the respondent and mortgagor at the most becomes that of mortgagor and mortgagee and the same can hardly be considered as relationship between them that of landlord and tenant. As per the provisions of section 2(d) of the Act 2009, term 'landlord' has been defined as owner of the premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises. The term 'tenant' has been defined under the provisions of section 2(l) of the Act 2009 whereby 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 include a person who continues to be in occupation of the premises after the termination of his tenancy for the purpose of a proceeding under the Act 2009.
Undeniably, agreements i.e. one to mortgage the property and second to lease out the property are mentioned in one and the same document Exh:A1. Irresistible and vivid conclusion that can be drawn from the contents of document Exh.A1 would be that lease deal as mentioned in Exh.A1 was coined merely for the purpose of realizing the interest due on mortgage money, therefore, the amount agreed to be paid as a rent can hardly be counted and considered as a rent payable by the tenant to the landlord. As the amount that was shown to be received by the respondent was a certain sum of amount to be received for the consideration of amount to the tune of Rs.200,000/- that was lent to mortgagor, therefore, said amount can hardly be considered as rent amount to be paid by the mortgagor to the mortgagee for the simple reason that the mortgagor still was the owner of the property. A person cannot be the owner and the tenant at the same time. In case "Kareem Bakhsh and others v. Noor Muhammad and others" (PLD 2011 Lahore 249), it was observed that it is established principle of law that mortgage is a charge and not ownership.
Reliance may further be placed on case reported as "Muhammad Abdullah v. Abdul Jabbar" (PLD 1967 Lahore 1000), wherein while dealing with almost similar moot point it was resolved as under:- "It is true that the rent deed in this case provides for payment of Rs. 90 per month as rent but considering the true relationship between the parties which was that of mortgagor and a mortgagee and the two transactions of mortgage and lease being in substance one and the lease being in the nature of a machinery for the purpose of realising the interest due on the mortgage, I am unable to hold that the amount made payable by the appellant to the landlord can be termed as rent payable by tenant to a landlord. What the respondent was to receive was a certain sum of money and the consideration for this payment was, the fact that he had lent a sum of Rs. 15,000 to the appellant] otherwise the appellant still remained the owner of the property He could not be an owner and a tenant at the same time. A similar question was considered by the Patna High Court in the Indian jurisdiction in the case of Baijnath v. Jung Bahadur (A I R1955 Pat, 357). In that case also the mortgagor had taken back a lease of the mortgaged property by executing a kerayanama in favour of the mortgagee. It was held that the so-called rent payable under the kerayanama in fact represented the interest payable on the mortgaged money and not rent for use and occupation. That being so, it was held that the mortgagor could not be deemed to be a tenant of the mortgagee so as to be evicted upon an application by the mortgagee under section 11 of the Bihar Buildings Control Act, 1947. In that Act also a tenant was defined to mean any person by whom or on whose account rent was payable for a building."
Simultaneous execution of mortgage and lease by the mortgagor shall be justifiably considered as mechanism/mode for the purposes of realizing due interest on the mortgage money and in such eventuality no relationship of landlord and tenant would come into existence as the lease deed in fact was a device to recover interest on loan. Same proposition when was under consideration before the Apex Court in case titled "Samandar Khan v. Mst. Maqbool and others" (1974 SCMR 388), it was observed as under:- "On examining the terms and conditions of the mortgage and the lease deed executed by the respondents on 8-4-51 we concur in the view formed by the learned Judge that the so-called lease deed was in fact a device under which the appellant was enabled to recover interest on the loan advanced by him to the respondents at the unconscionable rate of 80 per annum. As such relationship of landlord and tenant did not exist between the parties within the purview of the West Pakistan Urban Rent Restriction Ordinance, 1959."
It was further observed by the Apex Court that in dealing with the cases of that nature it should be kept in view that a lease deed executed simultaneously with the mortgage deed in fact provides a machinery under which the mortgagee has to receive interest on the principal amount advanced as loan to the mortgagor whereafter more than one legal incidents flow from that situation. It was finally resolved by the Apex Court that relationship of landlord and tenant would not thereby come into force in the sense in which those terms were ordinarily understood. The instant matter when is seen in its entirety and even the contents of Exh.P.1 are taken on their face value, an amount to the tune of Rs.9000/- was seemed to have been agreed to be paid as interest of loan of Rs.2,00,000/- and the so called rent of Rs.9000/- per month was not to be paid as rent more particularly when respondent was not landlord and the neither mortgagor nor the petitioner (being legal heir of mortgagor) was tenant as per the provisions of the Act 2009. Looking the matter from any angle no relationship of landlord and tenant existed between respondent and the mortgagor. Therefore, respondents No.1 and 2 had got no jurisdiction to either proceed in the matter or pass impugned order and judgments.
10. Indeed this Court while invoking the provisions of Article 199 of the Constitution do not ordinarily interfere with the concurrent findings of fact given by the courts below, however, it is settled principle of law that where the orders passed by the courts below suffer from some legal error or jurisdictional defect, this Court can conveniently invoke the jurisdiction under the provisions of Article 199 and to set aside the impugned order and decrees as being passed in exercise of jurisdiction not vested in the courts below. Reliance in this regard may safely be placed on case "United Bank Limited (UBL) through its President and others v. Jamil Ahmed and others" (2024 SCMR 164), wherein it was resolved that as a corrective measure in order to satisfy and reassure whether the impugned decision is within the domain of law or not and if such decision suffers from jurisdictional defect, this Court being impressed or influenced by the fact that matter reached it under constitutional jurisdiction in pursuit of the concurrent findings recorded below, can cure and rectify the defect while invoking the provisions of Article 199 of the Constitution. In the instant matter, since no relationship of landlord and tenant existed between the parties, learned courts below had got no jurisdiction to pass the impugned order and judgment, which are required to be quashed.
11. The sequel of above discussion is that instant petition is allowed. Impugned order and judgments are set aside and as a consequence, ejectment petition filed by respondent stands dismissed.