1. ' WALI MUHAMMAD KHAN, J.---Through the instant appeal Ghulam Samdani appellant has called in question the order, dated 19-11-1990 passed by the Lahore High Court, whereby the appeal filed by Abdul Hameed respondent was accepted and order of ejectment passed against him by the Rent Controller vide his order, dated 24-1-1985 in favour of the appellant, was dismissed. Leave was granted to consider the following points:--
(i) that since the respondent admitted the factum of being a tenant of Mst. Zainab Bibi and not in occupation of any other status, the High Court in view of the registered sale-deeds in favour of the petitioner and his brother and the entries of Revenue Record in their favour, could not have set aside the finding of the learned Rent Controller on the question of relationship, particularly keeping in view that the decree on which title of Mst. Zartaj Siddiqui was founded, was not set aside though an application under section 12(2), C.P.C. Was filed;
(ii) that the respondent having admitted himself being the tenant of Mst. Zainab Bibi, who was grandmother of Mst. Zartaj Siddiqui as per statement of her attorney at page 41 of the paper book, the respondent was estopped from' denying the relationship of landlord and tenant as the petitioner and his brother purchased . The suit property from said Mst. Zartaj Siddiqui; and
(iii) whether the present case was a fit case in which the High Court should have directed one of the parties to approach the Civil Court if there was any doubt as to the title.
2. ' The facts of the case, briefly stated, arc that the appellant and his brother Ghulam Subhani purchased the Suit Houses Nos.1596, 1597 and 1598 within the boundaries mentioned in para 1 of the eviction petition from Mst. Zartaj Siddiqui vide registered sale-deed dated 5-10-1982 and thus became the owner of the suit houses. Abdul Hameed respondent was occupying the same as tenant on behalf of Mst. Zartaj Siddiqui who had filed an eviction petition against him but later on withdrew from it on 7-6-1983. After the purchase of the suit houses, the appellant claimed to be the owner/landlord of the suit houses and the respondent a tenant under him on payment of Rs,50 per month as rent. He accordingly filed an eviction petition against him on the ground of default in payment of rent from 5-10-1982, damage to the property and bona fide personal need. The defendant, in his written reply, denied the relationship of landlord and tenant and consequently, challenged the jurisdiction of the Rent Controller to proceed with the eviction application. On facts, he ' denied the ownership of Mst.' Zartaj Siddiqui and also the sale by her in favour of the appellant.
3. He claimed tenancy under Mst. Zainab Bibi, since dead, at the rate of Rs, 25 per month and that on her death he had been depositing the rent regularly before the Rent Controller. The learned Rent Controller framed preliminary issue regarding the existence of relationship of landlord and tenant between the parties and after recording such evidence as the parties wished to produce before him, decided the issue in the affirmative and directed the respondent to hand over vacant possession of the houses to the appellant within one month, vide his order, dated 24-1-1985. Abdul Hameed respondent preferred appeal before the High Court which was heard by a learned Single Judge, and he vide his order, dated 19-11-1990, accepted the appeal and set aside the order of eviction passed against Abdul Hameed respondent herein. Hence the instant appeal through leave of the Court.
4. ' We have heard Ch. Mushtaq Ahmad Khan, Senior Advocate, for the appellant, Ch. M. Aslam Chatha, Advocate-on-Record, for the respondent and have perused the record of the case. The learned counsel for the respondent strenuously argued that the relationship of landlord and tenant had not been established; that no notice regarding the transfer of the suit property in favour of the appellant had been given to him; that the earlier eviction petition by Mst. Zartaj Siddiqui, transferor of the property to the appellant, had been dismissed and consequently the appellant could not move the Rent Controller for the same relief being the successor-in-interest of Mst. Zartaj Siddiqui; that the respondent was inducted as a tenant by Mst. Zainab Bibi and on her death he had been depositing the rent before the Rent Controller regularly as he was not certain about her heirs and thus he could not be declared as defaulter; and finally, the default being not contumacious the Rent Controller was bound to give finding on the other issues as well. The learned counsel for the respondent, on the other hand, .Submitted that the respondent had already moved an application under section 12(2) of the Civil Procedure Code challenging the decree passed in favour of Mst.
5. Zartaj Siddiqui on the ground of fraud and misrepresentation which is still pending disposal in the Court. Concerned and that so long as the same is not finally decided, the title being sub judice, the appellant cannot claim better title than her and the respondent is not liable to eviction.
6. ' Mst. Zainab Bibi, on whose behalf the respondent claimed to be in possession as tenant, was wife of Din Muhammad and Mst. Zartaj Siddiqui, predecessor-in-interest of the appellant, is admittedly their daughter. She instituted a suit for declaration of title to the suit house against the other heirs of Din Muhammad which was decreed vide judgment and decree, dated 10-34980 by Civil Judge, Sialkot in Suit No,201 of 1980 on the basis of compromise. On the strength of the said decree necessary correction was made in the G.L.R. Of the Cantonment. Mst. Zartaj Siddiqui, thereafter, filed an eviction application on 25-4-1982 against Abdul Hameed respondent on the ground of default in payment of rent and personal need. The respondent herein contested the same. During the pendency of these proceedings Mst. Zartaj Siddiqui sold the suit house in favour of the appellant and his brother vide registered deed dated 5-10-1982 and in consequence the learned Controller, vide his order, dated 7-6-1983 dismissed the eviction application holding that the property having been alienated, Mst. Zartaj Siddiqui was no longer interested in the prosecution of the petition. The registered sale-deed in favour of the appellant was given effect to in the G.L.R. And the appellant and his brother were substituted for Mst. Zartaj Siddiqui on 28-6-1983 and intimation to this effect was given to them vide letter dated 2-8-1983 (copy at page 46 of the paper book), whereafter they started paying the taxes etc. Having become owners by purchase, the appellant moved fresh application for the eviction of the respondent on the ground of default in payment of rent, damage to property and personal need which was resisted and culminated in the passing of the impugned judgment of the High Court as discussed earlier.
7. ' The respondent's case is that he is a tenant of Mst. Zainab Bibi and that on her death he had been depositing rent in the office of the Rent Controller. He has disputed the title of Mst. Zartaj Siddiqui transferor of the appellant. As narrated above, all the heirs of Mst. Zainab Bibi have admitted the title of Mst. Zartaj Siddiqui and the decree passed in her favour has attained finality as none of the other heirs who were defendants in Case No,201 of 1980 have challenged the same decree uptil now. The application filed by the respondent. Under section 12(2), C.P.C. Shall be considered on its own merits but prima facie, as he is not claiming any title in the suit house, the chances of its success do not appear to be bright. Anyhow Mst. Zartaj Siddiqui, besides the decree of exclusive ownership in her favour, is also the daughter and heir of Mst. Zainab Bibi and Din Muhammad, is by operation of law one of the landlords of the suit house and the respondent only a tenant under. Her and liable to eviction on the application of appellant who is the successor-ininterest of Mst. Zartaj Siddiqui being a transferee from her. The relationship of landlord and tenant is thus established between the appellant and the respondent and rightly held so by the Rent Controller vide his order, dated 24-1-1985. The learned High Court omitted to consider that Mst. Zartaj Siddiqui, besides being armed with a decree of ownership, was also the heir of Mst. Zainab Bibi and was included in the category of landlord. No independent evidence was required of her to establish that the respondent was inducted by her as a tenant because the respondent, on his own showing, is in occupation of the suit house since the time of his father under Mst. Zainab Bibi. The findings of the learned High Court are, therefore, not legally sustainable.
8. It is by now well-settled that if a tenant denies the relationship of landlord and tenant, he is liable to eviction straightaway without recording of evidence on the other allegations of default, damage to property and personal. Need because default in payment of rent is conceded by the tenant himself. In the case in hand, no doubt, the tenant/respondent alleges deposit of rent in Court but obviously there was no justification for the him to resort to this device when he came to know of the decree in favour of Mst. Zartaj Siddiqui in the earlier proceedings and the transfer of ownership rights by her in favour of the appellant, whereafter he was bound to attorn to Mst. Zartaj Siddiqui and later on to the appellant and tender rent to them and in case of their denial to receive the same to pay it in the office of Rent Controller in their names. It is apparent from the death certificate placed at page 51 of the paper book that Mst. Zainab Bibi died on 30-10-1942 and the plea of the respondent that he is a tenant in the suit house on her behalf, on the face of it, is mala fide to prolong his occupation of the suit house for indefinite period. The deposit of rent before the Rent Controller in this case cannot exonerate him from the liability of paying rent at the relevant time to Mst. Zartaj Siddiqui and thereafter to the appellant after its purchase vide registered deed dated 50-10-1982.
9. ' Resultantly, we accept this appeal, set aside the impugned order of the High Court and restore that of the Rent Controller, dated 24-1-1985 whereby the respondent was directed to hand over vacant possession of the suit house to the appellant within one month of the passing of his order.
10. Since the period allowed by the Rent - Controller has already expired, he is allowed two months time from today to surrender possession to the,landlord/appellant, failing which he shall be evicted through due process of law. No order as to costs.