' This judgment will dispose of Writ Petition No 8844 of 1999 S.A.O. 89 of 1999 as the same arise out of common judgment of the learned Additional District Judge, Gujrat, dated 25-3-1999.
2. Facts relevant for the present decision are that Zahida Perveen, respondent filed an ejectment application against Guizar Ahmad and Sarfraz Ahmad sons of Muhammad Din for seeking their eviction from a shop, on the ground of default in payment of rent, subletting and personal need. It was claimed that Guizar Ahmad (appellant in S.A.O. 87 of 1999) was a tenant who executed a rent note in her favour and that he was a defaulter in payment of rent. It was added that Gulzar Ahmad, sublet the rented premises and transferred possession to Sarfraz Ahmad petitioner in Writ Petition No,8844 of 1999, without permission of the landlady.
3. The ejectment was resisted on the ground that Guizar Ahmad was previously a tenant who vacated the shop in April, 1991 and that the shop was rented out to Sarfraz Ahmad by the husband of respondent No, 1 .
4. After issues and evidence the learned Rent Controller concluded that Gulzar Ahmad (appellant in S.A.O. No,87) was a tenant, who sublet the premises in violation of rent deed in favour of Sarfraz Ahmad petitioner (in Writ Petition No,8844 of 1999). Issue of default was also decided against the tenant.
5. Two appeals were filed against the order of Rent Controller one by Gulzar Ahmad (respondent No,1 in ejectment petition) and the other by Sarfraz Ahmad (respondent No,2 in the ejectment petition) both these appeals were dismissed by the learned Additional District Judge by his order, dated 25-3-1999. Learned Additional District Judge also affirmed the findings of the Rent Controller on the issue of subletting and default.
6. S.A.O. No,87 of 1999 has been filed by Gulzar Ahmad tenant while Writ Petition No,8844 of 1999 by Sarfraz Ahmad, subtenant.
7. Learned counsel for Guizar Ahmad appellant argued that the appellant was no longer in possession and had nothing to do with the tenancy as he had allegedly vacated the premises.
Learned counsel for the petitioner in writ petition (Sarfraz Ahmad) argued that the premises was acquired by his client from the husband of respondent No,1, respondent No,1 was not on speaking terms with her husband and that it was a different premises which was rented out to the petitioner and not the one which was initially in occupation of Gulzar Ahmad. At this juncture, Mr. Ijaz Ahmad Awan, Advocate, counsel for Gulzar Ahmad appellant (tenant) was asked as to whether the premises which was rented out to his client was the same as is now occupied by Sarfraz Ahmad (petitioner) in writ petition. Learned counsel submitted that both the premises are one and the same. This being so, the plea of counsel for the petitioner that there are two premises is not well- founded and stands contradicted.
8. As to the merit of the case, admittedly, the premises was rented out to appellant Guizar Ahmad who executed rent agreement in favour of respondent Zahida Parveen. It is also not denied that Zahida Parveen is the owner of the property and that her husband was not the owner, at the time when Sarfraz Ahmad claims to have acquired the premises. Once Guizar Ahmad accepted the tenancy and claimed that he had vacated the property in April, 1991 and that it was rented out to Sarfraz Ahmad by the husband of Zahida. Perveen (respondent No,1) the onus would shift upon the appellant/ petitioner, to prove that the vacant possession was delivered to the landlady, and tenancy came to an end and that the premises was rented out to Sarfraz Ahmad. Neither the husband of respondent' No,1 was ever summoned nor any evidence was produced to prove that the possession was restored to the landlady. It is not denied that the husband of respondent No,1 was not on speaking term with her and this being so, it was for the appellant or the petitioner (Sarfraz Ahmad) to summon him as a witness as he claimed that the husband had rented out the property to him. 'Non-production of the material witness will obviously speak volumes against the petitioner. Tenancy between Zahida Perveen and Gulzar Ahmad having been admitted, return of possession to the landlady having not been proved, there being no worthy of credence evidence to prove renting out property to Sarfraz Ahmad, the rent having not been paid by tenant to the landlady for the disputed period, the allegation of subletting and default stood proved. Learned Rent Controller as well as learned Additional District Judge after considering the evidence and taking in view the circumstances noted supra, came to the same conclusion and directed eviction of the appellant as well as petitioner, who were tenant and sub-tenant. Findings of the Courts below do not suffer from any misreading of the record or from legal infirmity.
9. Resultantly, no ground is made out for interference. The appeal and writ petition, therefore, fail and are accordingly dismissed.
10. However, four months' time is allowed to deliver vacant possession to the respondent.