' FAZAL ILAHI KHAN, J.---Haji Maqsood Ilahi respondent No,1 brought an ejectment petition against the petitioner in respect of "Saqawa" bearing Khana Shomari No,313 situated in new Vegetable Market, Peshawar City. The ejectment was brought for on the ground of default in payment of rent.
Petitioner, however, on his appearance before the Rent Controller in his written statement denied the existence of relationship of landlord and tenant between the parties. The learned Rent Controller, therefore, after framing of preliminary issues in this regard placing reliance on an extract from the Revenue Record, a registered deed and the Court decree allegedly existing in favor of the parties in respect of the premises in question, came to the conclusion that there was some doubt regarding the title of the suit property decided the issue against the respondent/landlord and dismissed the ejectment petition. The learned District Judge on appeal came to the conclusion that the existence of relationship of landlord and tenant between the parties was fully established and in consequence 'thereof, accepted the appeal, set aside the order of the Rent Controller and ordered the petitioner's ejectment from the suit premises vide order dated 9-3-1993. The aforementioned judgment of the learned District Judge was challenged by the petitioner in writ petition before the learned High Court on the ground that no appeal was competent against the finding given on the existence of relationship of landlord and tenant. That there was no sufficient documentary evidence in support of the title of the petitioner which the learned Trial Court had avoided to take into consideration. Reliance was placed on Mst. Aiyasha Bai v. Mst. Mamoon Bai (PLD 1973 Karachi 419), Ibrahim v. Muhammad Hussain (PLD 1975 SC 457) and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1).
2. The contention was repelled by the learned High Court holding that the decision given on the issue pertaining to existence of relationship of landlord and tenant between the parties falls within the purview of section 13 and is, 'therefore, appealable under section 15 of the Ordinance. On factual aspect of the case the learned High Court referring to the documentary evidence placed on record came to the conclusion that the learned District Judge was correct in holding that the land underneath "Saqawa" belonged to someone else over which superstructure has been raised by Pir Bakhsh etc. From whom the respondent purchased it through registered sale-deed, a copy of which is Exh.P.W.-4/1. The respondent then purchased the land, under-neath from Ch. Sher Muhammad through his attorney Said Jan yet by another sale-deed Exh.P.W.-4/2 which was duly given effect in the Revenue Record also: Apart from one Behram Khan previous tenant-petitioner did, execute a rent deed in favor of the respondent and was regularly paying rent to the respondent as is evident from the counter foils of the rent receipts, copies placed on file.
3. Contrary to the above, petitioner claimed to have, acquired the property measuring 5 Marla's from one Muhammad Ali transferee through Amanullah his general attorney per Mutation No,3391 sanctioned on 26-1-1978 and further claimed to have raised superstructure over such land and in support thereof produced a Court decree. However, he did admit the execution of rent deed in favour of the respondent. On such finding the learned High Court did not find any fault in the judgment of the learned District Judge which was based on proper appraisal of the evidence and was in accordance with law and dismissed the writ petition.
4. We have heard the learned counsel 'for the petitioner and the learned counsel appearing for the caveat or and perused the record. The ejectment of the petitioner was sought for by the respondent from the suit "Saqawa" on the ground of default. It was alleged in the petition for ejectment that he firstly purchased the superstructure from the person in possession of the suit premises and subsequently obtained the site underneath it from its transferee through another sale-deed and thereby he became the full owner of the suit premises. Petitioner as such accepted the respondent as his landlord and executed a rent deed on 26-6-1970 in his favour and was regularly making payment of rent and subsequently since 1-11-1978 defaulted in payment of rent, presumably after he managed to get a decree in his favor in Suit No,905/1 instituted on 4-12-1977 decided on 10-12-1977. As far as Mutation No,3391 is concerned, which was entered on the basis of aforementioned decree allegedly passed in favor of the petitioner, it pertains to a joint 'Khata' measuring 6 Canals, 3 Marla's through which 2/266 share is shown to have been transferred in his favor. This mutation was, therefore, held by the learned District Judge to have no connection with the "Saqawa" in question which was in possession of the petitioner long before the acquisition of such right and title in the joint "Khata". We, therefore, find no infirmity in the judgment of the learned High Court refusing to interfere with the finding of the learned District Judge that the tenant was debarred from challenging the title of his landlord. Petition is, accordingly, dismissed.