Through this appeal, the appellant has challenged the order/judgment of the learned Rent Controller, Bahawalpur dated 4-7-1993 whereby the respondents-petitioner's petition for ejectment was accepted and the appellant---defendant was directed to vacate the premises within thirty days as also the judgment/order, dated 31-1-1995 passed by the District Judge, Bahawalpur, whereby appeal against the afore-referred order/judgment was dismissed.
2. Brief facts leading to the above-noted appeal are that the respondent---petitioner filed an ejectment petition before the learned Rent Controller, Bahawalpur against the appellant- defendant stating therein that he after obtaining the plot (bearing No. 4 measuring 50 x 50 feet, situated outside Shikar Puri Gate, Bahawalpur) on rent @ 300 per month through rent deed Exh. A1, dated 14-4-1975 did not pay the rent with effect from October, 1978. She sought ejectment on the ground of default, personal need and demanded damages for the damage done to the property in question.
3. In terms of the pleas of the parties, the following issues were framed:--- (1)Whether there exists relationship of landlord and tenant between the parties?
(2)Relief.
4.The respondent-petitioner produced the following evidence:--- (i)Rent deed Exh. A1.
(ii)Sale-deed Exh. A2.
(iii)Copy of the sale-deed, dated 1-6-1986 Exh. A3.
(iv)Copy of the sale-deed, dated 17-6-1965 Exh. A4.
(v)Copy of the judgment passed by the Chairman, Evacuee Trust Property Board Exh. A5.
(vi)Riaz Ahmad appeared as A. W.1 to depose that the plot was owned by the respondent- petitioner and was rented out to the appellant---defendant through written rent deed Exh. A1.
5. The appellant-defendant produced R. W.1 Roshan Lal, R. W.2 Muhammad Iqbal and he himself appeared as R. W.3. He also produced Exh. R1 which is a copy of the order, dated 3-5-1979 passed by the Deputy Administrator, Evacuee Trust Property Board. Exh. R2 is a copy of the order, dated 1-2- 1988, Exh. R3 is a copy of order, dated 12-6-1986 and Exh. R4 is a copy of the order passed in Civil Appeal 63/88.
6. The learned Rent Controller accepted the petition on the following grounds:--- (i)The appellant-defendant admitted the execution of Rent Deed Exh. A1 and he did not deny to have acquired the property from the respondent-petitioner on rent.
(ii)The appellant-defendant took up the plea that he did not pay the rent to the respondent- petitioner as he received a notice from the Evacuee Trust Property Board to the effect that the property in question was evacuee trust of Sarai Lal Jee Parshad and had desired the eviction of the same and, therefore, he started to pay the rent to the department. However, this plea of the appellant is demolished by the order of the Chairman, Evacuee Trust Property Board dated 31-10- 1985 which is Exh. A5 wherein it was declared that the property in question was not an evacuee trust property.
(iii)The statements of Roshan Lal and Muhammad Iqbal did not, in any manner, advance appellant-defendant's case.
(iv)The Rent Controller is not obliged to decide the intricate question of ownership of the property and it was only to comment upon the existence of the relationship of landlord and tenant. This relationship has been proved in view of Exh. A1 which stands admitted.
7. In appeal, the learned District Judge, Bahawalpur, affirmed the finding of the learned Rent Controller and dismissed the appeal observing that the relationship of landlord and tenant stands established in view of Exh. A1 the execution of which is not denied, the counter-claim of the Evacuee Trust Property Board qua the ownership of the property in dispute stood demolished in view of Exh.
A5 and there was nothing on record to suggest that the relationship of landlord and tenant between the appellant-defendant and respondent-petitioner had come to an end.
8. The learned counsel for the appellant has raised the following pleas in support of this appeal:--- (i)That the learned District Judge, Bahawalpur, has not discussed the oral or documentary evidence produced by the appellant-defendant.
(ii)That the question of title was involved and the learned District Judge should have asked the respondent to go to the learned Civil Court. He relied on 1983 SCM R 1064 (Rehmatullah v. A.I Muhammad) and (1994 CLC 1323 (Inayatullah Butt v. Umar Hayat Khan) to contend. That the orders/judgments of the learned Courts below are not sustainable in law.
9. I have gone through the impugned judgments/orders and have given anxious thought to the arguments addressed by the learned counsel and have also considered the precedent case-law referred to above.
10. In 1983 SCM R 1064, the facts were somewhat different. The learned Rent Controller had come to the conclusion that the sale-deed as well rent note could not be proved so as to establish the relationship of landlord and tenant. He dismissed the ejectment application and advised the landlord to have the question of title decided from the learned Civil Court first. The learned Additional District Judge accepted the appeal and ordered eviction. This order was challenged in the High Court without success. The Hon'ble Supreme Court accepted the appeal and restored the learned Rent Controller's order on the ground that when the issue regarding relationship of landlord and tenant depends solely on the question of ownership, then the proper course for the landlord is "to move the Civil Court to establish his title over the property occupied by the appellant and in the event of his success in the Civil Court to move the Rent Controller against his ejectment".
1994 CLC 1323 the ejectment application was dismissed as relationship of landlord and tenant could not be proved and the alleged tenant claimed ownership of the property in question. The order was challenged before the learned District Judge who accepted the appeal and ordered eviction. This was assailed in the High Court and while accepting the writ petition, this Court held:-- - "In the present case it is the question of title precisely which was the core question in the litigation before the Rent Controller. The kind of evidence produced has resulted in confusion. It was proper, therefore, for the Rent Controller to have left the question to the Civil Court."
11. Coming to the facts of the present case, the appellant does not claim ownership of the property in question. In the written statement filed by the appellant, the execution of rent deed (Exh. A1) has been admitted by the appellant. He made an abortive attempt to wriggle out of the said rent deed and claimed termination of the relationship of landlord and tenant on the ground of having received a notice of eviction from the Evacuee Trust Property Board which had allegedly claimed the said property. However, this plea stood falsified by Exh. A5 which is a judgment/order of the Chairman, Evacuee Trust Property Board, Lahore, wherein it was held that "the ownership of the Sarai Lal Ji Parshad existed in the name of Sarkar Daulat Madar, therefore, the property in question cannot be considered as an Evacuee Trust Property".
Thus the notice of eviction received by the appellant-defendant from the Evacuee Trust Property Board stood discharged and the matter was finally adjudicated by the afore-referred order of the Chairman, Evacuee Trust Property Board. The only issue which the learned Rent Controller was called upon to decide was qua the existence of relationship of landlord and tenant. The appellant- defendant led no evidence to prove that the said relationship had ceased to exist. The statements of R. W.1 and R. W.2 do not, in any manner, improve the appellant-defendant's case. In fact in cross- examination, R. W.2 had admitted that the Evacuee Trust Property Board had summoned the parties; Municipal Corporation, Bahawalpur, was also a party in these proceedings and it was ultimately decided against the department.
12. The appellant-defendant's default in paying the rent stands established on his own admission.
He could claim benefit of default after having received a notice from Evacuee Trust Property Board but when the proceedings initiated pursuant to the notice culminated in the order of the Chairman, Evacuee Trust B Property Board i.e. Exh. A5 dated 31-10-1985, the appellant-defendant had no justifiable reason not to pay rent to the respondent-petitioner. He has, in his evidence, given no explanation for this default. There is yet another aspect of the matter. The rule laid down in Article 115 of Qanun-e-Shahadat, 1984 is to the following effect:--- "No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
The import of the afore-referred provision of law is that a tenant cannot deny the title of his landlord. The only exception to this concept of Estoppel is if there is notice of eviction by a third person who happens to be the real owner. In that eventuality, the relationship of landlord and tenant would come to an end. And for this, the eviction may be real or symbolic. The threat/notice of eviction from real owner would constitute symbolic eviction. In a very illuminating judgment reported in PLD 1973 Kar. 284 (Azimuddin v. Pilshad Hussain), it was held:--- "Evidence Act, 1872 (1 of 1872), S.116---Applicability and scope---Real owner intervening--- Protection under section 116---Not available.
Ordinarily, by reason of the rule laid down in section 116, a tenant cannot deny the title of his landlord. But the legal position becomes very different when a third person, who is the real owner, intervenes, and, in that case, the relationship of landlord and tenant comes to, an end if the tenant is evicted by this real owner. The eviction need not be actual, but may be only symbolic. In other words, if there is notice to quit from the real owner to the tenant in occupation of the disputed property, or if there is a threat of eviction from the real owner to such tenant, then it would be a case of symbolic eviction of the tenant by the real owner which would bring to an end the relationship of landlord and tenant which is protected by section 116 of the Evidence Act:'
13. In the instant case, the so-called threat of eviction which the appellant---defendant had received from the Evacuee Trust Property Board had, on his own admission, disappeared after the matter had been finally decided.
14. It is thus clear that the relationship of landlord and tenant was denied by the appellant on wholly contumacious and frivolous grounds and the tenancy stood liable to resumption on the principle of forfeiture of tenancy.
15. There was nothing in law or fact to justify non-payment of rent to the respondent-petitioner. The default has been established beyond doubt. The two concurrent findings of the learned Courts below neither suffered from any irregularity nor the same have been passed against the weight of evidence. I see no merit in this appeal which is hereby dismissed in limine.