' This is a writ petition against the order dated 9-10-1997 of the learned Additional District Judge, Sialkot, whereby the ejectment order passed by the learned Rent Controller, Sialkot on 7-10-1996 was maintained and appeal dismissed.
2. Mst. Haleema Begum, daughter of Ilam Din, who is respondent No,2 in this petition, filed an ejecement petition on 9-12-1993 against Mst. Amina Bibi, widow of Inayatullah and Mst. Samara Begum, wife of Muhammad Riaz, who are now represented by the petitioners in this writ petition.
(To avoid any confusion, the ejectment petitioner is hereinafter called Haleema Begum, and the respondents in the ejectment petition as the writ petitioners).
3. The ejectment was sought on the ground of non payment of rent for the last more than three years and the personal need of her son. The ejectment petition was contested inter alia, on the ground that there exists no relationship of landlord and tenant between the parties. The back ground stated for such an assertion was that 30 years ago, Ilam Din, father of Mst. Haleema Begum, had sold the house to Inayatullah, father of the writ-petitioners (husband of Mst. Amina Bibi) for Rs,35,000. It was alleged that an amount of Rs,5,000 was received by Ilam Din from Inayatullah and he went abroad thereafter. The balance amount of Rs,30,000 was paid by Inayatullah to the wife of Ilam Din. It is the case of the petitioners that since Ilam Din was out of country, the sale deed could not be executed nor was it done by his successors. It was admitted fact that the alleged transaction was oral without any receipt or other document. It is their case that for the last 30 years they are in possession of the house as owners and paying the property tax and utility bills.
3. The learned Rent Controller on the pleadings of the parties framed preliminary issues. The issue as to "whether the relationship of landlord and tenant does not exist between the parties" has the significance for the case. Although the issue was in the negative form, yet Mst. Haleema Begum produced the evidence first and in rebuttal the respondents (in the ejectment petition) also led their evidence. Apart from the oral depositions the parties produced documentary evidence. Mst.
Haleema Begum produced Exh.A/1 and A/2, (the site plan) and Exhs.A/3 and A/4 (Property Tax receipts) whereas the writ petitioner produced Exh.R1 to Exh.R22 (receipts of payment of Sui Gas charges), Exh.R29 to Exh.R35 (receipts of payment of property tax) and Exh.R37 to Exh.R.44 (receipts of payment of electricity bills).
4. On the perusal of the evidence led by the parties, the learned Rent Controller, Sialkot on the crucial issue as to the relationship of parties as landlord and tenant came to the conclusion that Inayatullah, the predecessor of the writ petitioners, was a tenant of Ilam Din and paying rent for the same. Apart from the other depositions he relied upon A.W.2 Alhaaj Muhammad Ajmal Qureshi, who is described as an old respectable man of 75 years of age, who has been collecting the rent on behalf of Ilam Din. It is also the finding of the learned trial Court that in the Excise and Taxation record Ilam Din is shown as the owner of the property. Invoking the principle of once a tenant always a tenant, he found that the relationship of landlord and tenant exists between the parties and ordered forthwith ejectment vide order dated 7-10-1996.
5. The order of learned Rent Controller was challenged by the writ petitioner in appeal which appeal has been dismissed by the learned Additional District Judge, Sialkot vide judgment dated 9-10-1997 upholding the findings and order of the learned Rent Controller, Silakot. This writ petition has been filed to challenge the aforesaid orders of the learned Appellate Court as well as the learned Rent Controller.
6. The learned counsel for the petitioners has contended that the issue was not correctly framed inasmuch as the burden should have been on the landlord to prove the existence of relationship of landlord and tenant between the parties. It is submitted that the wrong framing of the issue has prejudiced the case of the petitioners. It is further contended that it was the duty of the landlord in any case to prove by some convincing evidence, the existence of relationship of landlord and tenant and that the predecessor of writ petitioners Inayatullah had entered into a transaction for purchase with Ilam Din, the father of Haleema Begum and made a part payment of Rs,5,000 to him and the further payment of Rs,30,000 to his wife, and thus the petitioners' predecessor Inayatullah was owner for all practical purposes and cannot be dispossessed from the premises. The learned counsel for the petitioners in support of his contention has relied upon Allah Rakha v. Ashfaq Ali (1995 MLD 874), Barkat Ali and another v. Additional District Judge, Lahore and others (1994 MLD 1920), Syed Aijaz Hussain v. Azimullah (1984 CLC 2908), Qadir Khan v. Mst. Kishwar Begum and others (1983 CLC 613), Ahmad Din v. Mst. Muhammad Nisa and another (PLD 1961 (W.P.) Karachi 237) and Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064).
7. As against this, the learned counsel for the respondents who has appeared in pursuance of preadmission notice dated 10-12-1997, contends that even if it is assumed that issue was not correctly framed no prejudice has been caused to the parties inasmuch as both the parties have led their evidence. It was contended that Inayatullah was tenant in the premises and the principle that once a tenant always a tenant continue to apply even to the successors-in-interest. He made reference to the documentary evidence led by the writ petitioners themselves before the learned Rent Controller such as electricity bills and record of Excise and Taxation Deptt. Which show the ownership of the premises that of Ilam Din, the predecessor-in-interest of Haleema Begum. It was submitted that in view of this admitted nature of evidence that Ilam Din was the owner of the premises it cannot be contended by the writ petitioner that property had been purchased by them for which there is no evidence on the record except the oral assertion. He has relied upon Nisar Ahmad and others v. District Judge, Muzaffargarh and others (1984 SCMR 317) and Muhammad Bux and another v. Ghulam Rasool (PLD 1982 Karachi 28) that the findings recorded by the learned Rent Controller as affirmed by the learned appellate Court are correct and legal.
8. The learned counsel for the parties have been heard at some length. The assertion of the petitioners that they were owners in possession of the premises has not been accepted either by the learned Rent Controller or by the learned Appellate Court. The concurrent finding recorded against them is that their predecessor had entered into the premises as a tenant, who had been paying rent for the premises. A.W.2 Alhaaj Muhammad Ajmal Qureshi apart from other evidence was relied by both the Courts below, who had stated that he himself had been collecting the rent on behalf of Ilam Din from Inayatullah. Although the appraisal of evidence and the findings arrived at by the two tribunals below cannot be assailed or gone into in writ jurisdiction, yet the preponderance of the evidence shows that Ilam Din has continued to remain the owner of the premises. The property tax paid to the Excise and Taxation Department, (the receipts of which have been produced by the petitioners as Exhs.R29 to R35) proves the ownership of the premises in the name of Haji Ilam Din. Likewise, the electricity bills have been issued in the name of Allah Ditta, who is father of Ilam Din and bills produced in this behalf Exhs.R36 to R44 do not show the ownership of the petitioners in the premises. These are the documents produced by the petitioners themselves, the contents of which cannot be denied by them. Apart from this Haleema Begum has also produced Exh.A3 and Exh.A4 which also show the ownership of Haji Ilam Din. The writ petitioners, however, have also produced some bills issued by the Sui Northern Gas Pipelines Ltd. Which are in the name of Manzoor Hussain, one of the petitioners, to show the gas connection in his name, but that is very common to get a gas connection by the occupants of the premises. The Tribunals below made the assessm ent of the evidence and came to the conclusion that the ownership is that of Ilam Din and the possession of the premises by writ petitioners is that of a tenant and not as owner and, thus, passed the order under section 13 of the Rent Restriction Ordinance for ejectment against them. The judgments relied upon by the learned counsel for the petitioners proceed on their peculiar facts and features and have no direct relevancy to the facts and circumstances of this case, except Rehmatullah's case reference to which has been made in the later part of the judgment.
' The grievance of the learned counsel that issue was not correctly framed and burden of proof as to the relationship of landlord and tenant was wrongly placed on the writ petitioners, has no real substance, after the parties have led their evidence with full opportunity. It was held in Zia Muhammad and others v. Ghulam Muhammad (1989 MLD 4228) that when the issue was wrongly framed in the negative form and the onus placed on the defendant that itself would not be enough to undo the judgment and decree when both the parties were conscious of the controversy and had opportunity of leading evidence in support of their respective claims. In Malik Raheem Bakhsh Awan v. Ejaz Mahmood and another (PLD 1990 Lahore 37) it was held that when the parties have fully led their evidence the matter of onus of proof looses its significance. It is not the case of the writ petitioners that they were in any way denied the. Right of defence or the opportunity of producing some evidence. Thus, no prejudice has been caused to them. Further these are proceedings under a Special Law i.e, Rent Restriction Ordinance, aimed at for the satisfaction of the learned Rent Controller and not to be converted into a regular trial as in a civil suit, to be conducted under the C.P.C. And the provisions of Qanun-e-Shahadat Order, 1984. The mere fact that, the issue was not correctly framed, would not vitiate the order of the learned Rent Controller.
' In matters where a dispute as to title arises in the contest and the tenant takes up the plea that he himself is owner and not tenant and denies the existence of relationship of landlord and tenant, the guide-lines provided in Rehmatullah's case (supra) become attracted and to be followed. It was laid down that when a tenant has succeeded before, the Rent Controller to create a reasonable doubt about the title of the landlord or that his plea is not frivolous, the Rent Controller can refuse to eject the tenant and leave the scope for civil suit by observing so. However, in this case the tenant has not succeeded in creating such a reasonable doubt and the concurrent findings are against the petitioners. The question of relegating the landlord to the civil Court for establishing his title only arises when the tenant succeeds in creating doubt about the title of the landlord which the petitioners have failed in the present case.
' In the context of these proceedings the judgment which is more closer to the facts of this case is Nisar Ahmad and others (supra). In that case the tenant denied the relationship of landlord and tenant, claiming to be in possession as a co-sharer of the property on account of the will in his favour. The Rent Controller found the said will "death bed transaction" and of no avail to him and ordered his ejectment which order was maintained by the learned Appellate Court. In the constitutional petition filed by Nisar Ahmad his case was that he had become a co-sharer on the basis of the will and that this matter was to be decided by the Courts of plenary jurisdiction and not by the learned Rent Controller. The High Court took the view that a question of fact namely the existence of relationship of landlord and tenant was required to be decided and the Rent Controller had jurisdiction to decide it and that it was not amenable to interference in the Constitutional jurisdiction. The Hon'ble Supreme Court on the petition filed by Nisar Ahmad held that:- ' "The Rent Controller and the first appellate authority on the question whether the relationship of landlord and tenant existed between the parties or not was within their jurisdiction and a finding had been recorded after appraising the evidence which had come on the record. To that extent such a finding was not open to scrutiny and reversal in Constitutional jurisdiction. However, as the petitioner Nisar Ahmad claimed under a will the more appropriate course as indicated by us in Rahmat Ullah v. Ali Muhammad and another (1983 SCMR 1064) would have been to leave an opportunity open for him to go and establish his claim in Courts of plenary jurisdiction. Except for allowing such an opportunity to the petitioners which we hereby do, we find no merit in this petition for leave to appeal which is hereby dismissed."
' This judgment has also been pressed into service by the writ petitioners in this case to contend that similar opportunity may be given to the petitioners.
11. In view of the rule laid down in the aforesaid judgment in Nisar Ahmad case, it may be open for the petitioners to seek their remedy in the appropriate forum as to their claim regarding payment of the price and the alleged purchase of the property from Ilam Din. However, so for as the finding as to the existence of relationship of landlord and tenant is concerned and the order of the ejectment passed by the two Courts below, there is no justification to interfere with the same by this Court in this petitioner. With the aforesaid observations, this petition is dismissed. The petitioners are allowed 2 months time to vacate the premises on payment of rent.