' This FA.O. Arises out of an ejectment application instituted by the respondent on 24-8-1983 against the petitioner. It was allowed by the learned Rent Controller vide his order dated nil (passed on 24-1-1985 according to the order-sheet). The disputed property bearing Nos. 1596, 1597 and 1598 was purchased by Ghulam Samdani, respondent and his brother Ghulam Subhani from Mst. Zartaj Siddiqi, through three registered sale deeds. Mst. Zartaj Siddiqi on her turn had claimed title on the basis of a gift made in her favour by her maternal-uncle Din Muhammad. The ejectment petition was filed on three grounds; first default of rent from 5.10.1982 onwards; second damage to the property and third personal need. The petitioner denied the relationship of landlord and tenant between the parties, on which the following issues were framed:-
(1) Whether the relationship of landlord and tenant exists between the parties? OPA
(2) Relief.
' The learned Rent Controller primarily relied on the registered sale-deeds and the entry in the GLR Ex.A-3 for holding that the relationship of landlord and tenant existed between the parties.
2. The appellant's learned counsel contends that the respondent is not lawful owner of the disputed property and even if he is proved to be the owner he can only file a suit for possession, in the absence of proof of tenancy. He submits that the appellant's admission that he was tenant under Mst. Zaineb Bibi is of no avail to the respondent because the record does not prove any link between said Mst. Zaineb Bibi and the respondent. The learned counsel for the respondent urged that the present appeal was barred by time and that the relationship of landlord and tenant was proved by the sale deeds in favour of the respondent and the appellant's own admission that he was tenant under Mst. Zaineb Bibi. He cannot set up any claim other than that of tenancy and being stranger cannot object to the respondent's title. He points out that the appellant's suit challenging the respondent's title was dismissed on 29-9-1983 and the appeal on 21-7-1990.
3. The objection regarding delay in filing the appeal cannot be entertained because it was already condoned, for cogent reasons, vide order dated 31-3-1985 passed on C.M. No, 1364-C of 1985 respondent had become owner of the property bearing Nos.1596, 1597 and 1598. His title is based on the title of Mst. Zartaj Siddiqi who had obtained a decree from the Court on 10-3-1980 and the appellant has already filed an application under section 12 (2) of the C.P.C. Challenging the decree as being fraudulent. The said application shall be decided by the Civil Court on its own merits.
However, even if it is presumed that the respondent is the lawful owner of the property this by itself is not sufficient to show that the appellant is a tenant under him. Tenancy is a fact apart and had to be proved independently through evidence which is lacking in the present case. On a fiding that the respondent is owner the appellant cannot be presumed to be a tenant. The appellant's admission that he was a tenant in some property under Mst. Zaineb Bibi is of no avail to the respondent A because his right is in no manner linked with the said Mst. Zaineb Bibi in the light of the evidence available on the record.
5. Admittedly the appellant never paid any rent to the respondent. The respondent never issued any notice to the appellant alleging his tenancy and claiming rent from him. In the sale-deeds Ex.
A-1, A-2 and A-3 there is no mention that the property on the spot was in possession of the present appellant as a tenant. While appearing as AW-2 Ghulam Samdani stated that Mst. Zartaj Siddiqi had filed an application for ejectment against Abdul Hamid, appellant but had withdrawn it. He did not know whether the appellant had attorned to Mst. Zartaj Siddiqi as a tenant or not. He also stated that he did not know from whom Mst. Zartaj Siddiqi had purchased the house. He also did not know any woman by the name of Mst. Zaineb Bibi. The appellant had, in fact, denied his tenancy under Mst. Zartaj Siddiqi. The respondent does not claim to have obtained ownership rights from Mst. Zaineb Bibi. Hence the respondent cannot press the appellant's admission that he was tenant in some property under Mst. Zaineb Bibi for proving tenancy.
6. In view of the above discussion I accept this appeal and set aside the order passed by the learned Rent Controller, leaving the parties to bear their own Costs.