' This Constitutional petition is directed against the judgment dated 1-7-1996 of Additional District Judge, Faisalabad whereby the respondents/landlord's appeal was accepted and the judgment of the Rent Controller, Faisalabad, dated 14-2-1995 of the dismissal of ejectment petition was set aside and the ejectment petition was accepted.
2. The facts, in brief, are that respondent No, 1, Abdul Wahid, instituted an ejectment petition against the present petitioner, Muhammad Naeem, on 21-9-1993, before the Rent Controller. Faisalabad, alleging that the petitioner was a tenant under him in House bearing No,P.183-D, People's Colony No,1, Faisalabad, at the monthly rent of Rs,2,000 the tenancy commenced on 28th of every month and that the petitioner Muhammad Naeem was liable to be ejected on the ground of landlord's personal need and on the ground of the tenant's default in payment of rent for the months of June, July and August, 1993. The ejectment petition was contested by the petitioner and the relationship of landlord and tenant was denied and it was asserted that the respondent No, 1 had sold the house in dispute to one Fazal Muhammad alias Baba Kona and the petitioner had purchased the same from the abovesaid Fazal Muhammad and he was in possession of the house in dispute as owner and not as a tenant. Out of the pleadings of the parties. The Trial Court framed the following issues:--
(1) Whether the relationship of landlord and tenant does exist between the parties? OPA
(2) Relief.
' The parties led their evidence and after hearing the learned counsel for the parties and after perusing the record, the trial Court held that the petitioner was never a tenant tinder the respondent and the respondent has failed to establish that there was a relationship of landlord and tenant between him and the petitioner. The order of the Rent Controller was challenged by the respondent in appeal and the learned Appellate Court while accepting the respondent No, 1's appeal, as mentioned above, on 1-7-1996 held that asthe respondent was proved to be the owner of the premises in dispute and that the petitioner himself had admitted in his statement on oath and in his examination-in-chief that he initially took the possession of the house in dispute as a tenant from the said Fazal Muhammad, therefore, he will be deemed to be the tenant of the respondent No, 1 because the sale respondent No,1 in favour of the above-said Fazal Muhammad was not proved. Hence, this Constitutional petition.
3. It is contended by the learned counsel for the petitioner that the respondent No, 1 sold the property in dispute to Fazal Muhammad and in turn Fazal Muhammad sold the same to the petitioner by agreement to sell (Exh.R-I) dated 26-2-1989 and since then he was in possession of the house in dispute as an owner and not as a tenant of any one including the respondent No, 1; that allegedly the agreement of tenancy between the respondent No, 1 and the petitioner was written but no such deed was ever produced in the Court by the respondent No, I to prove the tenancy; that no proof whatsoever was produced by respondent No, 1 of payment of rent for a single month, no witness excepting the respondent No, 1 himself has come forward and stated that petitioner ever paid any rent in his presence to the respondent No, 1 and the judgment of the First Appellate Court suffers from misreading of evidence and from legal infirmities and it has drawn wrong conclusions from the facts of the case. The learned counsel has also submitted that the dispute regarding title between the parties is pending before the Civil Court as the petitioner has filed a suit for specific performance of the agreement against Muhammad Sai, son of the abovesaid Fazal Muhammad, and against the petitioner and Muhammad Sai etc., the legal heirs of Fazal Muhammad, who has since died, have also filed an application seeking permission to file a suit in forma pauperis for specific performance of agreement to sell against the present petitioner and in this situation the Appellate Court ought to have stayed its hands from the issue regarding the title of the property in dispute. Reliance in this regard is placed on Province of Punjab through Education Secretary and another v. Mufi Abdul Ghani (PLD 1985 SC 1) and Rehmatullah v. Ali Muhammad and another (1983 SCM R 1064). In the former, it has been held that when a person bases his claim on the right to receive rent on account of ownership of property, he will have to satisfy Rent Controller about his title and failure of such person to satisfy Rent Controller would result into a verdict against him. In the latter, it was held that where a doubt is created about the ownership of disputed premises then the leading of evidence by parties before Rent Controller on issue of title is not desirable and the proper course for Rent Controller, in circumstances, would be to decide the issue against the landlord and advise the landlord to get his title established from a Court of general jurisdiction before seeking ejectment. Learned counsel for the petitioner has further submitted that the record of Excise and Taxation could not of its own be conclusive proof of ownership, for such record Was basically made for fiscal purposes and could not be substituted for proving ownership of property. Reliance in this regard is placed on Muhammad Latif v. Additional District Judge. Lahore and 2 others (1993 M LD 1631) and Fateh Gul v. M. Anwarul Huda and another (1987 CLC 635). It has been submitted next that in the absence of remedy of second appeal, the Constitutional petition is the proper and effective remedy against decision of First Appellate Court and this Court in the exercise of its Constitutional jurisdiction can grant proper relief to the aggrieved party. Reliance in this regard is placed on lkhlaq Ahmad and 10 others v. Ch. Muhammad Sharif and 3 others (1995 CLC 239) and Attique-ur-Rehman and others v. Muhammd Aslam (1995 CLC 66). It has also been submitted that there is nothing on the record to suggest that petitioner was ever inducted as tenant in disputed premises either by the respondent or his predecessor-in- interest and no cogent evidence was available on the record to show that the petitioner had ever paid any rent in respect of premises in dispute either to the respondent or any of his predecessor- in-interst and, therefore, the First Appellate Court has illegally held the petitioner to be the respondent's tenant. Reliance in this regard is placed on Mst. Roshan Bi and others v. Munawar Hussain Gil (1987 M LD 3263 (Karachi)) and Syed Aijaz Hussain v. Azimullah (1984 CLC 2908 (Karachi) wherein both the parties were claiming ownership of disputed property and the question of title was not yet finally decided and on the failure of landlord to produce any tenancy agreement, any evidence in writing about payment of rent in the shape of money-order, counterfoil of any receipt, any letter from tenant, any notice or any other document, it was held that oral testimony of landlord was not sufficient to base finding that relationship of landlord and tenant existed between the parties. Learned counsel has also submitted that respondent claimed to be the owner of premises but failed to produce any documentary evidence in support of his ownership whereas the petitioner had produced evidence whereby it was established that dispute about ownership was going on between the parties and in the absence of documentary evidence of ownership of disputed premises, the relationship of landlord and tenant was not established.
Reliance in this regard is placed on Sultan Ahmed v. Nisar Ellahi (1988 CLC 1776 (Karachi)). Reliance has also been placed on Beejal Mal v. Punaji (1987 CLC 1134) wherein it was held that mere fact of a person being owner of premises would not lead to a conclusion, that there existed relationship of landlord and tenant between the parties. Learned counsel has also referred to Fazal Baqi and another v. Rehmatuallah (1995 M LD 303 (Peshawar)) wherein it has been held that in case, the claim of landlord regarding the title of the property is doubtful, the tenant and landlord should be advised to seek remedy in Civil Court.
4. On the other hand, the learned counsel for the respondent has submitted that as the original ownership of the respondent No, 1 has been submitted by the petitioner, because it is the case of the petitioner that petitioner's predecessor-ininterest Fazal Muhammad had purchased this property from the respondent No,1, therefore, prima facie it was proved that the respondent No, 1 was the owner of the property in dispute and it was for the petitioner to prove that his predecessor- in-interest had validly purchased it from the respondent No,1 and no such evidence has been brought on record prove the factum of sale by the respondent No, 1 in favour of Fazal Muhammad and the trial Court has wrongly held that the respondent No, 1 should have proved his ownership over the property in dispute. Learned counsel has next contended that tenancy between the parties is proved which is apparent from the statement of respondent No,1 himself, and the rent- deed was not produced because the same was with the Property Dealer. Reliance also been placed on the statement of A.W.2, Muhammad Shafique, the Recordkeeper, who produced the excise record which pertained to the years 1989, 1990 1992, 1993 and 1994 in which the respondent No, 1 is entered as owner and the petitioner is entered as tenant.
5. I have heard the learned counsel for the parties and have also seen the record which has been attached by the petitioner with the petition.
6. The First Appellate Court has correctly held that in view of the fact that the alleged agreement to sell (Exh. R-1) executed by Fazal Muhammad in favour of the petitioner does not prove the petitioner's ownership because the agreement allegedly executed by respondent No, I in favour of Fazal Muhammad dated 13-12-1988 has not been produced in Court, and, therefore, in my opinion the petitioner has failed to prove his ownership over the property in dispute as far as these rent proceedings are concerned, especially, when it is admitted by the petitioner that respondent No,1 was the owner of the property in dispute and he had allegedly sold it to Fazal Muhammad, the predecessro-ininterest of the petitioner. On the other hand, the respondent No,1 has miserably failed to prove that the petitioner entered into the property in dispute as a tenant of the respondent No,
1. The agreement of tenancy though allegedly written has not been produced in evidence. The payment of rent has not been proved, the solitary statement of respondent No,1 cannot make the petitioner as tenant of the respondent No,
1. Similarly, the entries in the Excise record are not a conclusive proof of tenancy.
7. The upshot of the above discussion is that though, prima facie, for the purposes of decision of the ejectment petition, the respondent No, 1 has been able to show his ownership over the property in dispute but he has failed tc prove that the petitioner entered in the premises in dispute as his tenant, therefore, the relationship of landlord and tenant between the parties is nol established. It is, however, clarified that as the parties are in litigation in regard to the title of the premises in dispute before the Civil Court, any observatior made by this Court or the Courts below in this regard shall not prejudice the case of either party before the Civil Court and the Civil Court shall decide the matter pending before it in regard to the title of the house in dispute on merits keeping in view the evidence produced or to be produced by the parties independent of the present proceedings.
' In view of the above discussion, this petition is accepted and the impugned judgment dated 1-7- 1996, of Additional District Judge, is set aside. However, under the circumstances, the parties are left to bear their own costs.
Ejectment set aside.