The brief facts of the case are that the suit property, fully detailed in the plaint, originally belonged to one Abdul Rahim, the father of the respondent/landlord who had mortgaged the same to a Hindu, namely, Mr. Permanand for a sum of Rs.600. This happened before the partition of Indo-- Pakistan. However, after the partition the suit property vested with the Settlement Department.
Abdul Rahim, therefore, filed a suit for the redemption of the property in question but during the pendency of the case he expired and the respondent/landlord stepped into his shoes being his son. Resultantly the Settlement Department transferred the property to respondent/landlord, on payment of mortgage amount of Rs.600. Accordingly the respondent became the owner of the suit property.
2. As result of the decision of the Settlement Department, the Cantonment Board, Nowshera also effected a mutation in favour of the respondent/landlord and also approved the building plan for the reconstruction of the suit shop vide Cantonment Board No.53(A) (13) dated 25-6-1989.
3. Ghulam Haider, predecessor-in-interest of the petitioners/tenants was in occupation of the suit shop in the first instance, as a tenant, on payment of monthly rent of Rs.10 as is evident from rent deed Exh. 4/1. After his demise, his legal heirs, i.e. Petitioners became the tenants on payment of Rs.100 per month. They, however, failed to pay rent to the respondent/landlord and therefore the respondent filed the present ejectment petition against them in the Court of the Rent Controller, Nowshera on 8-1-1990. It was alleged that the petitioners/tenants were liable to be ejected from the suit shop on two grounds, firstly, that they had defaulted in the payment of rent and secondly, the suit shop was required for reconstruction in respect of which building plans had been approved by the competent authority i.e., the Cantonment Board, Nowshera.
4. The ejectment petition was resisted by the petitioners/tenants on variety of grounds legal as well as factual. The pleadings of the parties gave rise to the following issues:---
(1) Whether the relationship of landlord and tenants exists between the parties? (OPR)
(2) Whether the petitioner is estopped to bring the present petition being res judicata? (OPR)
(3) Relief.
5. After recording the evidence of the parties, which they wished. To produce in support of their respective cases, examining Amanullah as a Court witness and hearing the learned counsel for the parties, the Rent Controller, Nowshera, vide his judgment dated 16-2-1994 accepted the ejectment petition and ordered the tenants to vacate the suit property within a period of six months and to hand over the possession of the suit premises to the respondent/landlord. The tenants were also directed to pay the rent due from them w.e.f. November, 1984 to 16th February, 1994 @ Rs.100 per month to the respondent/landlord, before handing over the possession.
6. The said order of the Rent Controller has been impugned by the tenants who have filed this F.A.O.
For the redress of their grievance.
7. I have heard Mr. Abdul Majid Khan, Advocate, learned counsel for the appellants and Mr. Tasleem Hussain Advocate, learned counsel for the respondents and have also gone through the record of the case carefully.
8. It may be pointed out here that alongwith the F.A.O., the petitioners/tenants had also filed C.M.
No.64/94 wherein they had prayed that the operation of the impugned order of the Rent Controller dated 16-2-1991, be suspended till final decision of the appeal. The said application was, however, rejected. His Lordship, Mr. Justice J.D. Akbarji had in this respect passed the following order:--- "C.M. No.64/94 The application does not disclose that the execution application has been filed. The application is, therefore, dismissed."
9. It would, therefore, follow that the petitioners/tenants had to comply with the orders of the Rent Controller regarding the payment of rent due from them i.e., w.e.f. November, 1984 to 16th February, 1994 (9 years and 3 months) @ Rs.100 per month. Since the petitioners/tenants have not deposited the rent so far, therefore, the petitioners/tenants have rendered themselves to be ejected from the suit shop and their appeal is liable to be dismissed on this score alone.
10. However, even on merits, the petitioners/tenants has no case at all. To support his case Muhammad Ismail, respondent/landlord, appeared in the lower court -as P.W.4 and stated, on oath, that he was the owner of the suit shop which was rented out by him in the first instance to Ghulam Haider a Rs.10 per month. To further support his contention he produced rent deed Exh.PW 4/1 and stated that initially the rent of the property was fixed at Rs.10 which was later enhanced to Rs.100 per month. According to him Ghulam Haider the predecessor-in-interest of the petitioners/tenants used to pay the said monthly rent till 1983 when he died, that thereafter the petitioners/tenants stepped into his shoes as tenants and started paying him monthly rent @ Rs.100, that after November, 1984 they stopped paying him the rent. According to him the tenants being rent defaulters were thus liable to be ejected. He further stated that beside this he needed the suit property for reconstruction and that in this respect he had applied to the competent authority (the Cantonment Board) which had granted him the permission to reconstruct the suit shop. He also produced the approved building plan (Exh. PW 2/2).
11. In his cross-examination he admitted that the rent deed was in fact scribed by one Amanullah (C.W.1) who is still alive and is residing in Lal Kurti, Nowshera Cantt. He further admitted that Pir Bakhsh was the other marginal witness of the rent deed. It may be noted that during the course of cross-examination it was, nowhere suggested to him that the rent deed was fictitious/forged and had not been signed by Ghulam Haider, the predecessor-in---interest of the petitioners/tenants. In short the testimony of this witness remained unshattered.
12. Pir Bakhsh, the marginal witness of rent deed(Exh. PW 4/1) appeared as P.W.5 while in the witness-box he stated (on oath) that rent deed Exh. PW 4/1 was scribed in his presence and that Ghulam Haider (the predecessor-in---interest of the petitioners/tenants) had signed the same. He also stated that the suit shop was owned by Muhammad Ismail respondent/landlord.
13. When cross-examined, P.W.5 refuted the suggestion that he was either a relative of the respondent/landlord or was his servant. He stated that he was a businessman and himself running a shop in village Badrashi. He expressed his ignorance about the fact as to who was in possession of the suit shop prior to Ghulam Haider (the predecessor-in-interest of the petitioners/tenants).
14. Line Superintendent, Cantonment Board, Nowshera, Muhammad Ismail was examined as P.W.2.
According to him the suit shop had been transferred in the name of Muhammad Ismail respondent/landlord in September, 1985. He also stated that the map/plans for the reconstruction of the suit shop has already been approved by the competent authority.
15. This witness was thoroughly cross-examined by the petitioners/tenants but nothing could be brought on record to show that he was not a truthful witness.
16. Rehmatullah, Ward Incharge, while appearing as P. W. I stated on oath that after the property was transferred to Muhammad Ismail (respondent/ landlord) Letter No.752-753 was addressed on 31-10-1985 to Mr. Iftikhar petitioner No.2, son of Ghulam Haider, directing him to pay the rent in future to Muhammad Ismail.
17. It will not be out of place to mention here that P.W.1 was also cross---examined thoroughly but nothing could be brought on record to shatter the veracity of this witness.
18. For reasons best known to the respondent/landlord he did not produce the scribe of the deed, namely Amahullah, however, in order to resolve the controversy once and for all, the Rent Controller summoned Amanullah (aged about 60 years) and examined him as a Court witness (C.W.) while in the witness-box he admitted, on oath, to have scribed the rent deed (P.W.4/1). However, he stated that he did not remember as to who was the other person who had signed the deed as a marginal witness. He further stated that he could not say as to whether or not the father of the petitioners/tenants had signed the deed in his presence.
19. On the other hand, petitioner No. 2/tenant appeared as D. W.1 and stated that the petitioners/tenants had never remained as tenant of the respondent/landlord. According to him the rent deed produced by the respondent/tenant was fictitious because his father could not sign.
20. In cross-examination he stated as under:-
21. In the next breath this witness changed his version and stated that:--
22. In the circumstances, I am of the view that D.W.1 Sarfaraz Haider (petitioner No.2) is not a truthful witness. His solitary statement which is contradictory in nature, and is not backed by any other oral or documentary evidence, cannot be relied upon safely. The same is therefore discarded.
23. After having gone through the record of the case carefully, I am of the opinion that no reason exists and none indeed has been made out by the petitioners/tenants as to why the impugned order of the Rent Controller which undoubtedly is a speaking order and does not suffer from misreading or non---reading of evidence, be set aside. This appeal does not merit consideration and is accordingly dismissed with costs.