' This is second appeal under section 15(6) of the Rent Restriction Ordinance, 1959 against the order, dated 24-2-2000 passed by the learned Additional District Judge whereby the rent appeal against the order, dated 21-11-1998 of the Rent Controller has been accepted.
2. Brief facts of the case are that the respondent Mst. Rehana Kausar purchased the Property No,40 Block-A through registered sale-deed, dated 29-11-1986, it is stated in the ejectment petition filed under section 13 of the Punjab Urban Rent Restriction Ordinance that notice under section I3-A of the Ordinance was served to the appellant by the respondent after acquiring the proprietary rights of the suit-Property No,40, Block-A and it was requested to appellant to pay rent of the shop in dispute to the respondent w.e.f, December, 1986 to onward as the shop in occupation of the appellant is part of Property No,40 Block-A measuring 16 marlas 187 sq. Ft.
3. The appellant filed the written reply wherein preliminary objections were raised that no relationship of landlady and tenant existed, therefore, the Court has no jurisdiction to entertain, try and adjudicate upon the petition.
4. From divergent pleadings of the parties, following issues were framed by the trial Court:-- ISSUES
(I) Whether the relationship of landlord and a tenant exists between the parties? OPA
(2) Whether the application is barred? OPR
(3) Whether the application is defective due to non-verification? OPR
(4) Relief.
5. The respondent examined Haibat Khan as A.W.2 and Muhammad A fzal appeared as attorney of the respondent as A.W.1. On the other hand, father and attorney of the appellant Muhammad Aslam appeared as R.W.1 and got statement recorded. Attested copy of plaint, orders of the Civil Court R-3, P -4 and order of appellate Court as Exh. R-5. The learned Rent Controller vide his order, dated 21-11-1998, decided Issue No,1 against the respondent and dismissed the ejectment petition.
Mst. Rehana Kausar respondent filed the first appeal and the learned Additional District Judge vide judgment and decree, dated 24-4-2000 accepted the appeal and directed the appellant to hand over the vacant possession of the dispute shop to the respondent within one month. Hence this second appeal.
5-A. Learned counsel for the appellant has argued that there was no relationship of landlady and tenant between the parties. Further argued that the well-reasoned judgment of the trial Court has been illegally set aside by the first appellate Court on mere conjecture and surmises. Further adds that the judgment of the first appellate Court is result of complete non-reading of evidence. Further argued that neither the respondent is landlady nor the petitioner falls under the definition of tenant as contemplated in sections 2(c) and 2(i) of the Rent Restriction Ordinance.
6. I have considered the arguments and perused the record. The learned Additional District Judge while accepting the appeal of the respondent has relied on the pedigree-table of parties, in the impugned judgment and decree at para.7 which is as follows: {{TABLE}}
7. From the perusal of the above pedigree-table, it is clear that Mst. Allah Rekhi was the widow of Ch. Shah Din and Mst. Rehana Kausar-respondent the alleged landlady is the wife of Muhammad Afzal whereas the appellant Amjad is the son of Muhammad Aslam. Muhammad Aslam and Muhammad Afzal are real brothers being the sons of Ch. Shah Din. It is also admitted fact that the Property/Plot No,40 Block-A situated in Gulshan-e-Ravi, Lahore in which the shop was owned by minor Mst. Shabana Kausar daughter of Muhammad Afzal. Being guardian of his daughter, Muhammad Afzal executed the sale deed on behalf of his minor daughter Mst. Shabana Kausar in favour of his wife namely Mst. Rehana Kausar respondent on 29-11-1986. Prior to this, it is admitted position between the parties that an agreement to sell was executed by Mst. Shabana Kausar minor through Muhammad Afzal her father in favour of her grandmother Mst. Allah Rekhi on 23-9- 1978. It is also admitted that general power of attorney was also executed in favour of Mst. Allah Rekhi. The father of the appellant Muhammad Aslam and Muhammad Akram sons of Shah Din filed Civil Suit No,412 of 2001 on 6-12-1986 in the Court of Senior Civil Judge, Lahore against the legal heirs of Mst. Allah Rekhi and respondents. The same was decided by judgment and decree, dated 3-10- 2000 and the appeal against the judgment and decree is admittedly pending before the lower Court.
8. From perusal of the judgment and decree, dated 3-10-2000 passed by the Senior Civil Judge, Lahore in suit for specific performance and evidence, the position which has emerged that there is no proof of the fact that Mst. Shabana Kausar minor daughter of Muhammad Afzal who was the owner had put the appellant in possession of the suit shop. The suit for specific performance was dismissed by the Court on the ground that Muhammad Afzal father of the minor had no lawful authority to execute the agreement of sale in favour of Mst. Allah Rekhi. The appeal is pending.
9. There is no lease agreement or rent note between the parties. There is no receipt or counter file of any receipt to show that the appellant was put in possession by Mst. Shabana Kausar who was the original owner of the suit property or Mst. Allah Rekhi grand-mother of the appellant. There is no proof of payment of rent by the appellant Muhammad Amjad son of Muhammad Afzal to the real aunt namely Mst. Rehana Kausar respondent by way of cheque, receipt or money order. No notice under section 13-A of the Rent Restriction Ordinance has been produced on the record to show that the appellant Amjad was the previous tenant of Mst. Shabana Kausar minor or Mst. Allah Rekhi.
Merely because Habat Khan has stated in his statement that twice the rent has been paid in his presence is no ground to hold that relationship between the parties was of landlady and tenant. No reliance can be placed on the statement of Habat Khan, who is admittedly under the influence of the respondent.
10. The learned Additional District Judge while accepting the appeal has held that agreement to sell does not create any right, title or interest. No doubt, the agreement to sell does not create any right, title or interest and that suit for Specific Performance of Agreement to sell cannot be a ground to avoid eviction of tenant by the Rent Controller. But in the present case, the situation altogether is different, the appellant Amjad is not party in suit for specific performance filed by Muhammad Aslam his father on behalf of Mst. Allah Rehki and after the death of Mst. Allah Rakhi on 19-10-1985, the same is being contested by the legal heirs inter-se, therefore, the principle laid down in cases "Haji Shafi Muhammad v. Mst: Shah Bibi "(1987 SCM R 347) and "Iqbal v. Mst. Rabia Bibi" (PLD 1991 SC 242), are not applicable to the facts and circumstances of the present case because admittedly in the above mentioned cases, the tenancy was not in dispute and the ,suit for specific performance of agreement to sell was brought by the tenant and it was held by their lordships that the suit for specific performance of agreement cannot be a ground to avoid eviction of a tenant by the Rent Controller.
11. To resolve the controversy reading of section 2(c) and (i) which define terms landlord and tenant is necessary which is as follow:
(c) "landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving the title under a landlord.
(i) "tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord or a person to whom the collection of rent or fees in a public market, cart- stand, or slaughter house or of rents for shops has been framed out or leased by a municipal, town or notified area committee, or by the Corporation of the City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust; and"
12. Keeping in view the above stated definitions of landlord and tenant and the evidence produced by respondent in support of case I am of considered opinion that relationship of landlady and tenant between the parties does not exist. To my mind not an iota of evidence existing that the construction on the plot out of which one shop was under occupation by the appellant was raised by the minor Mst. Shabana Kausar or by the alleged landlady Mst. Rehana Kausar wife of Muhammad Afzal appellant or that his grandmother Mst. Allah Rekhi has raised the construction and possession was handed over to him. It is also proved on the record that power of attorney was also executed in favour of Mst. Allah Rekhi. No convincing evidence existing on the record that Muhammad Amjad tenant had ever acknowledged the respondentMst. Rehana Kausar as his landlady and ever paid rent in token of acceptance of status as tenant. In case of Mst. Roshan Bi and 6 others v. Munawar Hussain Gil" (1987 M LD 3263). It has been held that "nothing on record found to suggest that respondent was ever inducted as tenant in disputed premises either by appellants or by their predecessorin-interest---No cogent evidence available on record to show that respondent had ever paid any rent in respect of premises in dispute either to appellants or to their predecessor-ininterest---Finding of Rent Controller that no relationship of landlord and tenant existed between parties was upheld in appeal, being based on evidence on record."
13. The first appellate Court was wrongly influenced by case-law cited by the learned counsel for the appellant in case "Muhammad Naeem v. Abdul Wahid (1999 M LD 1342) in which it was the dispute of title between the parties and the learned Additional District Judge while accepting the appeal held that dispute of title was not on the basis of agreement to sell or suit for specific performance of contract. It is well-settled law that the genuine dispute of title between the parties ousts the jurisdiction of the Rent Controller and the parties are always directed by the Court to resolve the dispute from the Civil Court. See the cases reported as "Rehmat Ullah v. Ali Muhammad and another (1983 SCM R 1064). In which it has been held as under:- "The requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord had not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be, to decide the issue against the landlord and advise him to first get his title established before seeking ejectment." ' and Province of Punjab through Secretary etc. v. Mufti Abdul Ghani PLD 1985 SC 1. .
14. Similarly in case of Province of Punjab Supra the Hon'ble Supreme Court distinguished the case while examining dispute of title between the parties and the cases of simple relationship of landlord and tenant under Rent Restriction Ordinance.
15. The learn( 1 Additional District Judge in the impugned order, dated 24-2-2000 observed that the relationship of landlady and tenant does exist because the agreement of sale in favour of Allah Rakhigrand-mother of Muhammad Amjad and his father Muhammad Aslam has not created any right as the suit for Specific Performance of agreement is still subjudice. Legally it may be proposition of law that agreement to sell between the parties does not create any right in favour of the vendee but in the instance case neither agreement of sale is existed between Mst. Rehana Kausar the alleged landlady and the present appellant Amjad. This is a simple case in which parameter laid down in the definitions of landlord and tenant as envisaged in section 2(c) and (i) of the Rent Restriction Ordinance are applicable. In this view of the matter. I conclude that the agreement of sale between Mst. Allah Rakhi and father of the appellant Muhammad Aslam has no relevancy and, therefore, the principle of law applied by the learned Additional District Judge in cases of "Haji Shati Muhammad and Mst. Iqbal Begum supra are not applicable. Moreover, there is no dispute of title between the parties, therefore. From the evidence it is proved that the respondent is neither the landlady nor Muhammad Amjad is the tenant of the shop in dispute.
' For what has been discussed above, this appeal is accepted, the order, dated 24-2-2000 of the learned Additional District Judge is set aside and that of order, dated 21-11-1998 of the learned Rent Controller, Lahore is restored. Parties are to bear their own costs.