1. ' Appellant Ghulam Hussain has called in question dismissal of his Rent Application No,609 of 1986 ordered by VIth Senior Civil Judge and Rent Controller, Karachi West under a judgment dated 11-8- 1987.
2. ' Rent Case No,609 of 1986 was filed by the appellant for eviction of the respondent from the premises in litigation mentioned in para. 1 of the rent application, on the grounds of, failure to pay monthly rent since February 1983 and damage to the property in litigation and having made alterations and additions in the same. While claiming the respondent to be his tenant, the appellant relied on a tenancy agreement dated 19-6-1982 between him and the respondent.
3. ' In his written statement the respondent challenged jurisdiction of the Rent Controller to try the rent case on the ground that relationship of landlord and tenant did not exist between him and the appellant. Respondent claimed that the premises in his possession belonged to him and that construction of the same was raised by him and that the appellant had mala fidely given, description of the premises in his possession, to be the demised premises. Respondent claimed to be paying necessary taxes and rights to concerned authorities in respect of premises in his possession. He claimed to have filed a civil suit for declaration in respect of premises in litigation.
4. ' After recording evidence of the parties learned trial Court under the impugned judgment dismissed the rent application, after holding that there was no relationship of landlord and tenant between the parties. Hence this appeal.
5. ' Mr. Mehar Hussain, learned counsel for the appellant argued that the documentary evidence produced by the appellant in the shape of agreement dated 19-6-1982, P.T. 1 issued by Excise and Taxation Department and notice Annexure 'A' was not rebutted by the respondent and as such the relationship of landlord and tenant between the parties stood proved. Learned counsel referred to the affidavits of Allah Bux and. Ghous Bux, who were said to have supported case of the appellant.
6. Learned counsel referred to Suit No,1113/1984 filed by the respondent for cancellation of the tenancy agreement dated 19-6-1982. He also referred to Suit No,928/85 and Suit No,3125/82 filed by the respondent against the appellant. The appellant was said to have filed an application under Order 7, Rule 11 of C.P.C. In Suit No3125/82 which was decided on 4-7-1984. It was argued that the respondent had raised inconsistent pleas and his suit was barred by estoppel. Learned counsel for the appellant had grievance against the trial Court for not permitting the appellant to examine the witnesses mentioned in his application. In support learned counsel for the appellant cited the cases of:
(i) Muhammad Amir v. Additional District Judge and others 1990 SCM R 460.
7. ' Mahmood v. Additional District Judge, Bahawalpur and others 1990 SCM R 954.
8. ' Mst. Fatima v. Mst. Hanifa 1986 CLC 1613
(iv) Ehzar Ali Arhti v. Muhammad Yaqoob Khan and others 1985 SCM R 962.
9. ' Mr. Zahid Merghoob learned counsel for the respondent argued that Rent Controller's forum was limited and his jurisdiction was subject to existence of relationship of landlord and tenant between the parties and if there was no such relationship then the Rent Controller had no jurisdiction to deal with the matter. In respect of P.T.-1 it was argued that it did not confer title or right and so also entry in record of Excise and Taxation Department. In respect of the tenancy agreement dated 19-6-1982, learned counsel for the respondent argued that the same was never executed and it was manoeuvred. Referring to statement of the appellant in cross-examination, learned counsel for the respondent argued that there could not be tenancy agreement between the parties in 1982 when the respondent had set up his "Taal" 12 years back. Learned counsel for the respondent pointed out certain contradictions in the evidence about relationship of Allah Bux with the appellant. It was further argued that the premises in litigation were part of `Katchi Abadi' which could not be owned by anybody except the occupant. Learned counsel for the respondent also argued that since the Civil Courts were seized of the matter in respect of title of the demised premises, the Rent Controller had no jurisdiction in the matter. In respect of the agreement dated 19-6-1982, it was argued that the same was not attested by a Rent Controller or a Civil Judge or a Magistrate as required by section 5 of the Ordinance. Learned counsel for the respondent further argued that mere ownership of the premises would not establish the owner to be landlord of the occupant and in the present case there was no proof if the respondent was inducted into the disputed premises by the appellant and there was no proof if taxes etc., were paid by the appellant, who admitted in his cross-examination that he had not entered the disputed premises for a period of 28 years. Yet he had not filed a suit against anybody. In support learned counsel for the respondent cited the cases of:---
(i) Gul Dad Khan v. Rahim Shah PLD 1978 Kar.
19. Qassam v. Dunya Gul 1981 CLC 1743.
(iii) Habib Ahmed v. Liaquat Hussain PLD 1985 Kar.
10. 741.
(iv) Rahmatullah v. Ali Muhammad and others 1983 SCM R 1064.
(v) Mrs. Kaneez Raza v. Ansar Ali and another 1987 M LD 191.
(vi) Mst. Roshan Bi and others v. Munawar Hussain Gil 1987 M LD 3263.
11. It is the appellant, who has invoked jurisdiction of the Rent Controller and onus is on him to establish that relationship of landlord and tenant exists between him and the respondent.
12. Appellant Ghulam Hussain claimed being owner/landlord of the disputed property, and asserted that the respondent was his tenant in the same, at an agreed rent of Rs,500 per month payable before 7th of each calendar month. In support he produced tenancy agreement dated 19-6-1982 (Annexure C), notice dated 18-9-1987 (Annexure A) from the Assessing Authority Excise and Taxation Department, Form PT-I (Annexure B). The appellant denied in his affidavit if the respondent was occupying the disputed premises since his birth as owner. He denied construction over the disputed property by the respondent. In his cross-examination the appellant stated that the respondent had installed wooden "taal" for preceding 12 years and that father of the respondent was also doing the same business. In respect of his witnesses Allah Bux and Ghous Bux, the appellant stated that they are not related to him. Appellant claimed to have purchased stamp paper for the tenancy agreement in 1982. Appellant claimed to be paying property tax since 1982 and claimed to be owner of the disputed property for preceding 20/25 years but did not bring tax receipts for the period prior to 1982. Appellant produced photo copy Exh.1/1 of the Ration Card showing his residential address. Appellant admitted that he had no lease deed in respect of the demised premises. Appellant admitted that number of the demised premises was 587 before issue of P.T.-1 and that he got its number changed as K-587/A. Appellant admitted that Suit No,928/85 filed by the respondent for declaration and injunction was pending against him. In respect of the rent agreement dated 19-6-1982 the appellant stated that the same was typed by him in Court premises and then thumb impression of the respondent was obtained in office of a Councillor in the evening time in presence of Ali Hassan, Ghous Bux and Munawar Shah and that the respondent returned to his house after thumb marking the tenancy agreement. Appellant admitted that Suit No,3113/83 for cancellation of the tenancy agreement was pending before a Civil Court. Appellant admitted that during preceding 28 years he had not entered in the disputed premises. Appellant changed his statement by saying that Allah Bux was his uncle and also father-in-law. In respect of witness Ghous Bux the appellant stated that he was meeting him daily. The appellant has not produced any satisfactory evidence to establish that he was owner and title-holder of the disputed premises. According to section 2(f) of the Ordinance "landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises. In this way it was incumbent upon the appellant to establish that he was owner of the disputed premises before putting forth his claim about being landlord of the respondent. The tenancy agreement dated 19-6-1982 even if proved would not establish title of the appellant in the disputed property. As regards the Form P.T-1 and notice from Excise and Taxation Department, they cannot establish relationship of landlord and tenant between the parties. In the case of Gul Dad Khan PLD 1978 Kar. 19 a learned Single Judge of this Court took view that entries in the Excise and Taxation registers are irrelevant in an enquiry whether the relationship of landlord and tenant existed between the parties. This observation was based on the case of Haji Muhammad Ramzan v.
13. Mian Jamil Shah PLD 1967 Pesh. 190 where it was observed that the evidence about entries in the Excise and Taxation register may have some value on the question of title, but it is wholly irrelevant to the enquiry whether the relationship of landlord and tenant existed between the parties. In the case of Qassam v. Dunya Gul 1981 CLC 1743 a learned Single Judge of this Court agreed with the view taken in the cases of Muhammad Ramzan PLD 1967 Pesh. 380 and Gul Dad Khan PLD 1978 Kar.
14. 19 that entries of P.T.1 Register can hardly be of any value in respect of relationship of landlord and tenant between the parties. In the case of Rehmatullah v. Ali Muhammad and another 1985 SCMR 1064 it was held that the requirement of the relevant law contained in the Rent Restriction Ordinance 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. In the instant case the appellant has not been able even to show, much less establish, his being owner of the premises beyond reasonable doubt.
15. The premises in litigation are subject-matter of civil litigation. Appellant admitted in his cross- examination that Suit No,928 of 1985 was filed by the respondent against him for declaration and injunction. Copy of plaint Exh. 0/14 of said suit, shows that the respondent in said suit sought declaration that the PT-1 obtained by the appellant in respect of the disputed property, was of no legal effect, was void and was bad in the eye of law and that the disputed property with its structure measuring 200 square yards belonged absolutely and exclusively to the respondent, as against the appellant who had no right, title or interest in the same. Appellant also admitted pendency of Suit No,3113/83 for cancellation of Tenancy Agreement dated 19-6-1982. In view of such suits it would be proper for the appellant to wait till his title in the disputed property is cleared by the Civil Court. In the case of Ehzar Ali Arhti 1985 SCM R 962 the documents produced before the Rent Controller were sufficient to justify recording of positive finding of fact in favour of the landlord, whose title to the demised property was disputed by his tenant, and in the circumstances it was held that there was no error in appraisement of evidence by the lower appellate Court to justify interference by the High Court in Constitutional jurisdiction and leave to appeal was refused by the Supreme Court of Pakistan with an observation that the tenant was at liberty to agitate question of title in Civil Court. This authority does not help the appellant who in the present case has not produced documents sufficient to justify recording of finding in his favour about his being landlord of the respondent. In the case of Mehmood 1990 SCM R 954 the landlord produced documentary evidence to prove his title by showing that he had purchased the property in litigation through a registered deed for consideration from the persons whose title in the property was cleared by a Court under a judgment and decree. As against this the other party in the rent case led only oral evidence while claiming to be owner of the property in litigation and did not produce any receipt to show if he had paid rent to the Settlement Department or had paid property tax or had paid security for electric connection. In the circumstances it was held that the relationship of landlord and tenant between the parties stood proved. In the present case there is no registered deed-in favour of the appellant. In the case of Muhammad Amir 1990 SCM R 460 the persons in occupation of the property in litigation claimed ownership of the premises by adverse possession and challenged the rent deed between their predecessor-in-interest and the owner to be a forged document. The validity and genuineness of the rent deed was upheld by the lower Appellate Authority which ordered eviction of the ccupants. The order of eviction was not interfered with by the High Court or by the Supreme Court of Pakistan, which held that in presence of the rent deed the plea that the occupants had become owners of the property in litigation through adverse possession could not be accepted. In the present case validity and genuineness of the rent agreement dated 19-6-1982 is open to question in Suit No,1113 of 1984. The tenancy agreement dated 19-6-1982 has not been properly proved and its validity and genuineness has not been accepted or upheld by any Court below. Cited case therefore does not help the appellant.
16. ' According to section 5 of the Ordinance, the agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsory registrable, it shall be attested by the Controller of the area or by any Civil Judge or by any Magistrate of first class. In the present case the tenancy agreement dated 19-6-1982 is not attested either by a Controller or by a Civil Judge or by a Magistrate. The tenancy agreement appears to have been attested by Qadir Bux Councillor K.M.C., who should have been examined in support of the same as its execution was denied. It was argued on behalf of the respondent that since execution of the tenancy agreement was not in accordance with section 5 of the Ordinance, hence it will have no legal force and it cannot be used as a lease for any litigation. In this respect reliance was placed on the case of Habib Ahmed v. Liaquat Hussain PLD 1985 Kar. 741 where a learned Single Judge of this Court dealing with section 5 of the Ordinance 1979 took view that every agreement by which any premises is to be let out, has got to be reduced into writing, while the oral agreement in respect of such transaction will have no legal force, and will not be permitted to be used, as the basis for any litigation in respect of any matter including ejectment of tenant under the Ordinance, 1979. Differing with this view, a learned another Single Judge of this Court took view in the case of Mst. Fatima v.
17. Mst. Hanifa 1986 CLC 1613 cited on behalf of the appellant that section 5 of the Ordinance provides a manner for making the agreement and care has been taken to avoid any doubt or ambiguity in execution of the tenancy agreement and that any person can enter into agreement of tenancy orally as well but as the tenancy creates a valuable right it is advisable and convenient that it should be in writing to avoid dispute regarding terms and existence of relationship of landlord and tenant between the parties. In latter case it was also observed that section 5 of the Ordinance is in the nature of procedural provision which requires the agreement to be executed in a particular form, but it does not nullify the agreement not made in this form. It was also observed that section 5 of the Ordinance requires agreement of tenancy to be made in writing in a particular form, which shall if produced in Court will be accepted without any further proof, but it cannot be extended to mean that where the agreement of tenancy is in writing but not in the manner provided by section 5 of the Ordinance the relationship of landlord and tenant shall not be created between the parties. {{PAGE BLUR}} ' The appellant filed affidavits-in-evidence of Allah Bux a 43 They stated that the appellant was owner of the disputed pius.8 respondent was his tenant on monthly rent of Rs,500. Ghous Babe the tenancy agreement dated 19-6-1982 was executed and sii,:re respondent in his presence. He claimed to have witnessed the ex4, 4t other witness Munawar Shah was not examined. Allah Bux is not w0 tenancy agreement and he admitted being cousin of the appellant. I cross that there was no rent agreement between the respondent am the appellant. Allah Bux admitted that he did not know English at signed his affidavit in his village. It appears that affidavit of Allah Bu been sworn before the Oath Commissioner in his presence. Ghou signatory to the tenancy agreement. He stated in his cross-examination did not know English and that the contents 'of the rent agreement we over to him by Advocate in office of the Councillor where Ali Hassan, were present besides the Councillor. The tenancy agreement as well as at of Ghous Bux are in English. Ghous Bux admitted that in his presence co, of tenancy agreement were not read over to the respondent, who left f house after affixing his thumb mark over the tenancy agreement. In this the tenancy agreement has not been satisfactorily proved. There is no evid if the respondent was inducted as tenant in the disputed property by appellant. There is no evidence if rent has been paid by the respondent to appellant at any time. In somewhat similar circumstances finding of the R Controller about absence of relationship of landlord and tenant between t parties was upheld in the case of Mst.
18. Kaneez Raza v. Ansar Ali 1987 ML 191 where there was no agreement of tenancy and no rent receipt was eve issued by the person claiming to be the landlord. As a result of the above discussion the relationship of landlord and tenant between the parties is not established. Consequently this appeal stands dismissed with no order as to costs.