ABDUL QADEER CHAUDHRY, J.---Leave to appeal was granted to consider the contention of the appellant that "it was not open to the High Court in writ jurisdiction to interfere with the concurrent finding of the Additional District Judge and the Rent Controller with regard to the relationship of landlord and tenant between the parties and that it also erred in casting doubt on the title of the petitioner to the property in dispute".
2. The facts, in brief, are that the appellant brought an application on 25-11-1980 for the eviction of respondent No.1 from the house boundaries of which have been described in the eviction application. It was alleged that the respondent was a tenant in the house for the last more than 10 years at a monthly rent of Rs. 1,000 and that he made a default in the payment of rent from November, 1976 onwards despite service of notice under section 13-A of the Punjab Rent Restriction Ordinance. It was also alleged that the respondent had caused damage to the property and materially impaired its value and utility. The respondent contested the ejectment application and the relationship of landlord and tenant was denied. It. Was alleged that the appellant and others were not the owners of the house and that the site of the house about 9 marlas was taken on rent by the respondent from one Ch. Muhammad Bashir and the respondent constructed a house at his own expense. It was also alleged that thereafter Ch. Muhammad Bashir had agreed to sell the land to the respondent and an agreement to sell was executed in his favour. On the pleadings of the parties, an issue, "whether the relationship of landlord and tenant existed between the parties" was framed. The appellant examined four witnesses including himself and produced certain documents. The respondent appeared as his own witness in rebuttal.
3. The learned Rent Controller after evaluating the evidence came to the conclusion that the relationship of landlord and tenant was established between the parties and as the respondent had failed to pay or tender the rent, an order of ejectment was passed against him. The respondent challenged this order in the Court of District Judge, Gujranwala, in appeal. During the course of proceedings before the learned District Judge, certain applications were filed by the respondent for additional evidence, but those applications were rejected. Ultimately, the appeal was dismissed by the learned District Judge on 15-5-1984. The respondent then challenged the orders of the Rent Controller and the District Judge in a Constitution petition before the High Court.
The learned High Court accepted the petition and set aside the orders of eviction passed by the Civil Judge and the District Judge.
4. Learned counsel for the appellant has submitted that it was not at all necessary to establish the title of the suit property because there was sufficient evidence on record to determine the relationship of landlord and tenant between the parties. He also submitted that the respondent had taken contradictory pleas in the written statement and the evidence produced by him. The Tribunals have assessed the evidence and came to the conclusion which could not be disturbed by the High Court. The High Court made the following observation:-- "Petitioner's case, as set forth in the ejectment petition, is that rent since November, 1976 was not paid when his father was alive. Sh. Abdul Hamid died on 25-5-1979. Alleged default continued till the date of application i.e. 25-1 A1980. Arrears by then had mounted to Rs. 48,000. It is not easily conceivable that the landlord would take no steps against the defaulter-tenant for four years and allow part of the arrears to become barred by time. No satisfactory explanation for this inordinate delay is available on the present record. Further, it is in evidence that property was taken on rent in the year 1970. Evidence could be led to show about the previous occupants of the suit property."
5. The High Court further observed in the latter part of the judgment that:-- "It is equally correct that he did not produce revenue papers to show ownership of Muhammad Bashir. As observed above, omissions/ infirmities in his evidence cannot properly be availed of by Shaukat Javaid to successfully prove the issue of relationship. When evidence with aforenoted omissions and infirmities is examined and properly analysed it can be safely said that the petitioner had miserably failed to prove pleaded relationship and the respondent had visibly demonstrated and succeeded in throwing a doubt in the title of the petitioner (Shaukat Javaid). In saying so, I am not unmindful of the fact that learned Judges of the Courts below, in the result of their appreciation of evidence, had concurrently found the issue of relationship proved. I was also not oblivious of the limitations placed on exercise of Constitutional jurisdiction in respect of rent matters. But the finding of fact to be held binding presupposes that it must be a judicial decision and must have been reached on full appreciation and consideration of the whole of evidence. On a clear reading of record, I have no hesitation, therefore, to say that impugned orders suffered from serious misappreciation of evidence which resulted in incorrect conclusions."
6. In the present case, the High Court itself appraised the evidence on record. It is an accepted principle of law that the High Court would not itself appraise the evidence made by Tribunals of the exclusive jurisdiction. Though the Tribunals have concurrently held that there did exist relationship of landlord and tenant between the parties but in the present case, the boundaries given by the appellant in the eviction application are not in conformity with the boundaries given in the sale- deed which is the basis of the title of the appellant. Similarly, the respondent claimed that he is in occupation of the house in his own right. He contended that he had purchased the house in dispute from one Muhammad . Bashir son of Mehr Din. The boundaries mentioned in the said sale- deed also vary from the boundaries given by the appellant in his eviction application. There is no evidence that the appellant had received rent from the respondent. Basically, it is a question of title and unless the title is determined, the appellant cannot seek. Dispossession of the respondent.
Additionally, even if an eviction order is passed in favour of the appellant, that is not capable of execution in view of the fact that there is a dispute with regard to the boundaries of the property. In this view of the matter, the direction of the High Court that the appellant can institute a civil suit against the respondent is not open to challenge. This Court in Rehmatullah v. Ali Muhammad 1983 SCMR 1064 has observed that "landlord failing to establish relationship of `landlord and tenant' beyond reasonable doubt cannot be allowed benefit of affirmative finding on issue. Rent Controller need not go into disputed `question of title'. The proper course for Rent Controller, in circumstances, would be to decide issue against landlord and advise landlord to get his title established from a Court of general jurisdiction before seeking ejectment".
7. The appeal in the above circumstances fails leaving the parties to bear their own costs.