1. ' This Constitutional petition has been filed by Mr. Muhammad Latif against the order of his ejectment passed by the Rent Controller, Lahore on 18-12-1989 and upheld by the Additional District Judge, Lahore vide his order, dated 3-2-1991.
2. ' The respondent Fateh Muhammad Bhatti sought the ejectment of the petitioner from the property described in the ejectment petition as No,14-A, Murtaza Street No,9, Mubarakpura, Mozang, Lahore, the ground for eviction being default in payment of rent. The petition for ejectment was contested by the petitioner on legal and factual plane. The petitioner denied his tenancy under Fateh Muhammad. He contended that there was no such property known as No,14-A and that the portion occupied by him was a part of the Property No,14 owned and rented out by Messrs Maqbool Ahmad Bhatti.
3. ' After taking necessary proceedings the learned Rent Controller :oncluded that the petitioner owned his tenancy under Fateh 'Muhammad Bhatti in Property No,14-A. As a sequel to it he found that the default in nyment creating liability for ejectment had occurred. Accordingly, an order or ejectment was passed against the petitioner which was maintained in appeal by the learned Additional District Judge, Lahore.
4. ' The petitioner's first ground of attack against the impugned order is that the lower forums have held petitioner's tenancy under Fateh Muhammad without adverting to the question of ownership whereas the title of the property being in dispute it was their legal duty to first direct the parties to get their title established as it was essential for the determination of the relationship of landlord and tenant between the parties. According to the petitioner, the respondent claimed his landlord ship on the basis of his ownership but he could not show any title in support of it. It has also been alleged that in passing the impugned orders the evidence has been misread to the detriment of the petitioner. Alternatively it has been stated that as the petitioner is regularly submitting the stipulated rent, an affirmative fording on the issue of relationship of landlord and tenant could not pave the way for forthwith ejectment and the alleged default ought to have been determined independently.
5. ' A thorough analysis of the facts and circumstances of the case reveals that in reality the whole controversy revolves around the dispute of ownership between Fateh Muhammad and Messrs Maqbool Ahmad and Manzoor Ahmad. Although, apparently, the question before the Court seems to be under the Urban Rent Restriction Ordinance yet in its true perspective the property signifies a serious dispute between the rival contenders of its ownership. Ordinarily, the question of ownership may not be relevant in ejectment proceedings under the Urban Rent Restriction Ordinance but the unrestricted and indiscriminate application of this principle may also run counter to the propriety and justice. Obviously, the Courts cannot be oblivious of such a situation and shall not allow walk over to an unauthorised person.
6. ' Otherwise also, there is a patent fallacy in the impugned orders. In determining the petitioner's tenancy under the respondent Fateh Muhammad the forums below proceeded on certain presumption& As already stated there was no title deed in favour of the petitioner but the learned Rent Controller based his finding on an admission of the petitioner's witness, namely Maqbool Ahmad Bhatti (R.W.3) that at some juncture of time Fateh Muhammad had been in occupation of the portion in dispute. From here onward the learned Rent Controller linked up the events with the occupation of one Shafqat Begum as tenant under Fateh Muhammad and presumed that as at one time Fateh Muhammad had been in possession and as he had let the property to Shafqat Begum, in all probabilities it was he from whom the petitioner would have taken the possession as tenant. There is, however, no strong and reliable evidence to establish the continuity of these events with the occupation of the petitioner. Secondly, the tenancy of Shafqat Begum was under a written rent deed but no such deed was executed by the petitioner in favour of Fateh Muhammad at the time of his alleged induction as tenant in the property in dispute. In order to establish the continuity of the authority of Fateh Muhammad as landlord very strong evidence was required especially when the petitioner produced evidence that in the remote past Fateh Muhammad had been accommodated in this portion for the time being by Messrs Maqbool Ahmad and Manzoor Ahmad as their sister's husband. Thus, the impugned finding of the learned lower forums was not based on direct evidence of petitioner's tenancy under Fateh Muhammad. The conclusion drawn by them was rather based upon presumption.
7. ' In the impugned orders there is great emphasis on the fact that the disputed portion of the property has been mentioned in the record of the Excise and Taxation Department as No,14-A, meaning thereby that the same had an independent entity and was not part of Property No,14.
8. Even if it be so, tenancy cannot be presumed under Fateh Muhammad only because the premises bore a different number. The fact that in the description of the property Number "14" is followed by the word "A" ordinarily means that the disputed premises originally formed part of the Property No,14, which position is not denied by the parties. It is here that the question of title over No,14-A would become relevant. There is nothing on record to show how and on what basis an additional number was created within the original Property No,14. It was an ancestral property of the present owners and was initially composed of one unit. The division thereof and its ownership to different shareholders with distinct number or specification should be in accordance with the course permissible under the law. The record of the Excise and Taxation cannot of its own be conclusive proof of ownership because it is basically made for the fiscal purposes and cannot be substituted for proving the ownership of the landed property.
9. ' As against the claim of Fateh Muhammad which is not based on any title deed, Messrs Maqbool and Manzoor Ahmad under whom the petitioner claims his tenancy, derive their title from a sale- deed in their favour by Ch. Allah Din who was admittedly son of Muhammad Din, the original owner.
10. The requirement of law as laid down in Rehmatulla's case 1983 SCM R 1064 and further discussed in the Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt and that in that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment. In the present case, Fateh Muhammad failed to establish the relationship of landlord and tenant on the basis of his ownership. The tenant/petitioner has not only created reasonable doubt against the title of Fateh Muhammad but also brought sufficient material on record to show that his plea is not frivolous and vexatious.
11. ' As already stated, in these circumstances the proper course for the Rent Controller was to decide the issue of relationship of landlord and tenant against the respondent Fateh Muhammad, refuse to eject the petitioner and leave the rival claimants of ownership to seek remedy from the Civil Court first and then to approach the Rent Controller.
12. In view of the above, the impugned orders of the Rent Controller and the Additional District Judge, Lahore are not tenable in law. The same, being illegal and without lawful authority, are set aside and the petition is accepted. The respondent may, if he chooses so, proceed to establish his title before Civil Court and thereafter seek ejectment of the petitioner h accordance with law.