1. Second appeal under section 15 (6) of the Punjab Urban Rent Restriction Ordinance, 1959 as amended was against an order of learned Additional District Judge, Nankana Sahib passed in appeal on 26-11-1992 by which an order of learned Rent Controller directing ejectment of the respondent from the shop in question was set aside and the ejectment petition instituted by the appellant was dismissed by holding that the tenancy--relationship was not established between the parties.
2. Fact for decision of the dispute in the second appeal are briefly these Property No. BII-S4-32 situated at Sabzi Bazar of Nankana Sahib in District Sheikhupura belonged to a non-Muslim Sardar Sohan Singh. It was transferred by the Settlement Department to Khadim Hussain appellant. Its P.T.D. was issued to him. P.T.D. was Exh. A.6 on file of the Rent Controller. Above property was shown to have been constructed on Khasra Nos. 733, 734 and 735. On the northern side of Khasra No. 734 fell Khasra No. 736. Municipal Committee, Nankana Sahib had constructed some shops on Khasra No. 736 and in the process had included a part of Khasra No. 734 measuring 2.7` x 60` from its northern side. Upon discovery of encroachments on Khasra No. 734 by the Municipal Committee, appellant exchanged his area encroached upon measuring 2/1/2` x 47` with an equal area of 117 square feet (9` x 13`) with a shop constructed on it belonging to the Municipal Committee.
3. Exchange deed was reduced in writing on 27-11-1968. It is Exits. A-1 and A-3 on file of the Rent Controller. The property taken in exchange from Municipal Committee was numbered as BII-S4- 32A. It was in possession of Ghulam Muhammad respondent.
4. On 24-2-1987, appellant filed a petition for ejectment of the respondent from the property in question on ground of rent-default and its personal requirement for the use of his son. It was asserted that the appellant gave the shop on rent to the respondent vide rent-deed executed on 11-6-1969. It was further asserted that initially the rent fixed per month was Rs.30 which in due course was enhanced to Rs.250 per month. Respondent had paid the rent till the month of August, 1986 and was defaulter thereafter. On two-fold grounds of rent default and personal requirement of the shop for self --occupation of his son, the appellant sought ejectment of the respondent.
5. Upon being served in the ejectment case, respondent filed his written statement and denied the tenancy-relationship. In addition, it was averred that Rent Controller had no jurisdiction to try the ejectment case; appellant was estopped to sue him; he had no cause of action or locus standi to institute the ejectment petition. On merits, it was averred that description of property given in the ejectment petition was incorrect and it was denied that the respondent was in occupation of the shop as tenant. Execution of rent-deed was also denied.
6. On 19-7-1987, Rent Controller settled following preliminary issue for determination. It reads "Whether the relationship of landlord and tenant exists between the parties? OPA."
7. Appellant gave evidence of five A.Ws. and himself appeared as A.W.6. In addition, as many, as eleven documents marked Exhs. A-1 to A-11 were tendered in evidence. Respondent himself did not appear in the witness-box. His son Taj Din held a power of attorney from him and appeared on his behalf as R.W.1. He was supported by the testimony of Muhammad Suleman R.W. 2.
8. Upon the analysis of oral as well as documentary evidence, Rent Controller found the preliminary issue in affirmative and directed ejectment of the respondent from the shop in question on 15-7- 1991. In appeal, his decision was reversed by learned Additional District Judge who found that appellant had failed to establish the tenancy relationship with the respondent in respect of the shop in question. Thereupon, this appeal was filed in this Court.
9. It was urged on behalf of the appellant that the learned lower appellate Court did not read the record in its correct perspectives and arrived at erroneous conclusions. In response, learned counsel for the respondent defended the impugned order and submitted that on record it was clearly sustainable.
10. The basic point for decision in 'the second appeal was about the ownership of the Shop No.BII-S4- 32A and holding of it as tenant by the respondent under the appellant. In case, it was found that he held the shop as tenant of the appellant, he was liable to vacate it on the ground of rent-default.
11. Before adverting to the recorded evidence, it appeared appropriate to make a reference to the written statement submitted by the respondent and the evidence led in its defence on his behalf. In the written statement, respondent had merely denied the existence of relationship of landlord and tenant between the parties but did not disclose his nature of the possession on the shop and its ownership. In the evidence led on his behalf, it was brought out that the shop was a non-Muslim evacuee trust property and was in occupation of the respondent as rent paying tenant of Evacuee Trust Property Board. However, no proof of tenancy or payment of rent to Evacuee Trust Property Board was forthcoming on record of the ejectment case. Exh. R.2, a decision by Chairman of Evacuee Trust Property Board on 20-3-1980, showed that Khasra Nos.736, 737 and 746 were found evacuee trust property by him. Respondent was a party (respondent No.14) before the Chairman of the Board. Municipal Committee, Nankana Sahib preferred a revision under section 17 of Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) before the Secretary to Government of Pakistan in the Ministry of Religious Affairs and Minorities Affairs. Respondent was respondent No.14 in the revision petition. Revision was allowed on 28-12-1983 by the Secretary to the Government of Pakistan and the case was remanded to the Chairman of Evacuee Trust Property Board, Lahore for its fresh decision on merits. The decision of the Secretary was Exh-A-11 on file. On 11-3-1993, the Chairman again found the above Khasra numbers as evacuee trust property.
12. Decision by the Chairman of the Board was now in revision before the Federal Government.
13. Appellant also filed a revision before the Federal Government. It was also sub judice. The result of exercise of revisional jurisdiction by the Federal Government was not known to the parties to the second appeal.
14. As regards documentary evidence, it showed exchange of properties between the appellant and Municipal Committee, Nankana Sahib. Exchange deed was Exh. A-1. By it, Municipal Committee, Nankana Sahib gave a shop constructed on an area of 117 square feet to the appellant in return for an equivalent area of 117-1/2 square feet already in possession of the Municipal Committee. It is in evidence of the appellant that respondent was in occupation of the shop transferred to him in exchange as tenant of the Municipal Committee, Nankana Sahib and he executed a rent deed on 11-6-1969 for paying the monthly rent at RS30 to the appellant. Rent deed was Exh. A-2 on file of the ejectment case. Hakim Muhammad Arshad and Muhammad Siddique alias Rashida were its marginal witnesses. Both were dead. It was admitted in the testimony of R.W.1 that both had died.
15. Exh. A-2 was proved in the testimony of Waseeqa Navees A.W3 and the statement of the appellant as A.W.
6. As regards he exchange of properties between the appellant and Municipal Committee, Nankana Sahib, there was no dispute between them. The officials of the Municipal Committee, in their evidence, had supported it. Copy of assessment from register in Form P.T.I for the year 1965- 66-Exh. A-8 showed that the property No.BII-4S-32A was a shop owned by Municipal Committee, Nankana Sahib and was in occupation of Ghulam Muhammad respondent at the monthly rent of Rs.25. Similar entry existed in Forms P.T.I for the years 1970-71 and 1975-76 Exhs. A-9 and A-10, except for the change of ownership in favour of the appellant. Entries from Excise and Taxation records were a piece of evidence for proof of ownership of the property mentioned therein. It was also a relevant piece of evidence to show possession on it. Appellant gave sufficient evidence of the possession of respondent on the shop in question and adequately proved execution of the rent- deed by him in his favour. Oral evidence coupled with entries in Excise and Taxation records clearly established that the respondent occupied the shop and was tenant of it holding under the appellant. :There was no evidence that Evacuee Trust Property Board gave the shop to the respondent as their tenant or that the respondent even paid them any rent for it. R.W.1 deposed that there were receipts to support payment of rent by the respondent to the Evacuee Trust Property Board. Nonetheless, these receipts were not produced. As said above, respondent himself did not enter the witness-box to rebut the evidence given in support of the tenancy by the appellant and preferred to produced his son on his behalf. Presumably, he avoided to face the truth. Rent-deed Exh. A-2 was signed by the respondent on 11-6-1969. Memo. of appeal filed in the lower Court also appeared to be signed by him. Learned counsel for the appellant submitted that his signatures on the two documents, which a slight variation caused by passage of time, were similar which showed that rent-deed was in the hand of respondent and he did not appear at that trial to avoid admission of his signatures on it. Though the lower Courts could have compared the signatures of the respondent appearing on Exh. A-2 with his sample signatures, yet, no effort was made in that direction. Nonetheless, preponderance of evidence, oral as well as documentary convincingly showed that the respondent was in occupation of Shop No32-A as tenant of the appellant and the denial of tenancy was ill-founded. A little discrepancy in the site-plan Exh.A-4 was inconsequential to the giving of affirmative finding on the preliminary issue in favour of the appellant. With the help of the learned counsel for the parties, whole of the record was thoroughly searched and every bit of evidence was taken into consideration. Its result led to an inevitable conclusion that the. finding on preliminary issue was incorrectly reversed by the learned lower appellant Court. Reasons given for it were neither sound nor weighty. I would, therefore, set aside the impugned judgment for restoring of the judgment of Rent Controller to take its place.
16. In result, second appeal is allowed, impugned judgment of learned Additional District Judge, Nankana Sahib is set aside and that of learned Rent Controller is restored. Respondent shall vacate the rented premises in favour of the appellant within a month from the date of the judgment.
17. Decision of the tenancy disputed between the parties shall not affect the jurisdiction of the competent forums to decide on the nature of the property under Act XIII of 1975. There shall be no order as to costs of this appeal.