' Brief facts necessary for the disposal of this appeal are that the respondent had filed a petition before the Rent Controller, Multat Cantt. For seeking eviction of the appellant from the disputed shop on the grounds of default in payment of rent and for bona fide personal use.
2. It was opposed by the appellant inter alia on the grounds that relationship of landlord and tenant did not exist between the parties. An issue regarding existence of aforesaid relationship between the parties was framed by the Rent Controller and after recording evidence it was decided in favor of the respondent (landlord). The appellant was directed to deposit arrears of rent at the rate of Rs,850 per month with effect from February, 1996 to June, 2002 by 3-7-2002 and further to continue depositing future monthly rent at the same rate before the 5th of each succeeding month till the final disposal of the petition. Two Additional issues relating to default in payment of rent and bona fide personal requirement of the lapdlord were framed.
3. The aforesaid order of the Rent Controller which was passed on 8-6-2002 was assailed in a writ petition by the appellant (tenant) on the ground that since it was held by the Rent Controller that relationship of landlord and tenant existed between the parties, framing of further issues by the Rent Controller was uncalled for. Learned counsel for the respondent (landlord) was also of the view that after recording finding that relationship of landlord and tenant exists, the Rent Controller should have passed order of outright ejectment and no further issues or evidence was required.
4. Writ petition was accordingly accepted on 5-8-2002 in terms that after having held the existence of relationship of landlord and tenant, the Rent Controller should have proceeded to pass appropriate order called for in the circumstances instead of proceeding further with the petition. It was ordered accordingly.
5. In pursuance of the aforesaid direction given in the writ petition the Rent Controller passed an order on 14-9-2002 directing eviction of the appellant (tenant) from the disputed shop and ordered him to hand over vacant possession of the shop and further to pay arrears of rent due to the landlord within sixty days from the date of that order.
6. The aforesaid order of the Rent Controller is assailed by the appellant (tenant) through this F.A.O.
7. The appeal is opposed by the learned counsel for the respondent.
8. Arguments heard. Record perused.
9. Learned counsel for the appellant urged that it stood established through evidence that an agreement to sell the shop in-question was executed by the respondent in favor of the appellant in respect whereof the appellant had also filed a suit for specific performance of agreement which is admittedly pending; on the basis of the said agreement, the appellant had denied the existence of the relationship of tenant and landlord between him and the respondent and had claimed ownership of the disputed shop. There was therefore, a dispute of title which the Rent Controller was not competent to decide. Hence he should have directed the respondent to get his title established from the Civil Court and then to file ejectment petition. Relying on the case of Hassan Abbas reported in 1980 CLC 1442 it was urged that tenant could successfully resist ejectment proceedings on the strength of an agreement made by the Landlord to sell the property in his favor.
10. The above argument is without force because during his statement as R.W.2, the appellant admitted during cross-examination that he had obtained possession of the disputed shop under a written rent agreement executed between him and the respondent on 25-1-1988 at the rate of Rs,500 per month which was subsequently increased to Rs,850 per month and that he had paid the rent of the shop till January, 1996.
11. Thereafter agreement to sell Exh.A.3 was executed between the parties on 27-2-1996. In the said agreement there is no stipulation that hence-forth relationship of landlord and tenant would cease and the tenant would not be liable to pay future rent. Mere execution of an agreement to sell by the landlord without the aforesaid stipulation, did not have the effect of the termination of tenancy neither it absolved the tenant of his obligation to pay the rent.
12. The authority referred by the appellant's counsel does not apply to this case inasmuch as landlord in the said reported case while executing the agreement to sell had absolved the tenant of his liability to pay the rent and there was a specific stipulation in the agreement to sell that the tenant was not to pay any rent to the owner. Hence with the execution of the agreement containing that condition, it was held that the tenancy had ceased and the tenant in such case could successfully resist ejectment proceedings in view of the provisions of section 53-A of the Transfer of Property Act on the basis of such agreement.
13. The appellant was admittedly inducted in the disputed shop as a tenant, hence he could not set up adverse claim against the landlord without surrendering possession.
14. Since agreement to sell does not create any right or title, claim of the appellant on the basis of such agreement could not be, therefore, considered as a dispute regarding title between the parties, therefore, there was no occasion for the Rent Controller to have directed the respondent (landlord) to get his title established from the Civil Court and, thereafter to file the ejectment petition.
15. It was next argued by the learned counsel for the appellant that the appellant was not served with a notice prior to filing of the ejectment petition. This argument is without force inasmuch as the said objection was neither taken up in reply to the rent petition nor anything was said about it in the evidence by the appellant. Such objection cannot be, therefore, taken up for the first time at the appellate stage.
16. Learned counsel for the appellant had drawn my attention to the statement of respondent where he said during cross-examination that it was stated in the agreement to sell that the appellant would continue to pay rent till the execution of conveyance deed. Learned counsel contended that it was not so stated in the agreement Exh.A.3.
17. The said omission is of no legal significance because in spite of that omission the agreement did not create any right or title in favor of the tenant and he was not absolved of his liability to pay the rent.
18. It was finally submitted by the appellant's counsel that the impugned order was passed in violation of the direction given in Writ, Petition No,5297 of 2002 inasmuch as findings on additional issues were not given by the learned Rent Controller.
19. The argument is misconceived. A perusal of order passed in the aforesaid writ petition on 5-8- 2002 shows that it was the appellant's counsel who had contended there that once it was held by the learned Rent Controller that the relationship of landlord and tenant exists between the parties, thereafter, issues relating to default in payment of rent and bona tide personal need of landlord were uncalled for. His said contention was accepted by the High Court and a direction was given to the learned Rent Controller to pass an appropriate order which should have been passed by him after having held that relationship of landlord and tenant existed between the parties, instead of proceeding further.
20. Where the tenant falsely denies relationship, allegation of landlord regarding default in payment of rent is deemed as proved by implication inasmuch as question of payment of rent to a person who is not acknowledged as landlord does not arise.
21. In this case induction of the appellant in the disputed shop as tenant was admitted; claim of title and ownership in the shop by the appellant was not proved; he was admittedly in possession as a tenant when the agreement to sell in respect of that shop was executed in his favor by the respondent; there was no stipulation in the agreement that hence-forth his possession would be deemed under the agreement and he would not be liable to pay rent; in paras. 2 and 7 of the reply to the rent petition as well as while appearing in the witness-box, the appellant admitted that he had paid rent up to January, 1996 and did not pay any rent, thereafter; rate of rent Rs,850 per month was not disputed, hence default in payment of rent since February, 1996 was admitted.
Facts which are admitted are not required to be proved. Hence there was no occasion for proceeding further with the rent petition when issues regarding relationship of landlord and tenant were found in the affirmative. In the circumstances stated above, there was no alternative left before the learned Rent Controller but to pass an order of eviction against the tenant.
22. The impugned order of eviction is, therefore, un-exceptionable. As default in payment of rent since February, 1996 onwards was admitted by the appellant not only in his reply to the rent petition but also during his statement, order regarding payment of arrears of rent since February, 1996 is, therefore, also upheld and the appeal being devoid of any merit is hereby dismissed with costs.