' Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan,.1973, the petitioner has challenged the legality of impugned judgment and decree, dated 18-12-2002 passed by the learned Addl. District Judge, Alipur, District Muzaffargarh by which he has accepted the appeal filed by Respondent No.1 and consequently the ejectment petition filed by him which was dismissed by the learned Civil Judge, 1st Class/Rent Controller, Alipur was accepted and the petitioner was directed to vacate the disputed house and delivered the vacant possession of the said property to Respondent No.2 within one month.
2. The brief facts of the case are that Respondent No.2 filed an application for ejectment against the petitioner from the property claiming that the petitioner is his tenant in the said property at the rate of Rs.500 per month. It was alleged that the tenancy was oral and the petitioner had not paid the agreed rate, who was defaulter of Rs.10,5000. He also sought ejectment on other grounds as well. The application of Respondent No.2 was contested by the petitioner and he filed written reply stating therein the whole facts. However, the learned Rent Controller on the pleadings of the parties framed the following issues:--
(1) Whether there exists relationship of landlord and tenant between the parties in respect of disputed property? OPP
(2) Relief.
' Botb the parties produced their evidence. Rana Salah-ud-Din Respondent No.2 . Himself appeared as A.W.1 and get examined Zawar Hussain A.W.2. He also produced copy of plaint as Ex.A. 1, copy of final order, dated 17-12-1999 as Ex.A.2, copy of decree-sheet as Ex. A..3, copy of report of Local Commission as Ex.A. 4, copy of Register of record of Rights for the year, 1995-96 ' as Ex.A. 5 and copy of Khasra Girdawari as Ex.A. 6 as documentary evidence. On the other hand Karam Din petitioner appeared as R.W.1 and also produced the affidavits of Abdul Hameed Shah and Muhammad Alam Shah as Marks R.1 and R. 2 alongwith copy of plaint of case No. 69/99 as Ex. R.1; copy of written statement as Ex. R. 2, copy of application for withdrawal of suit as Ex. R.3, copy of statement and order, dated 25-9-2000 as Ex. R. 4, copy of report of Local Commission as Ex. R.5 and copy of report of Commission as Ex. R. 6 as documentary evidence.
3. After hearing the learned counsel for the parties the learned Rent Controller dismissed the ejectment petition as Respondent No.2 failed to prove the relationship of landlord and tenant betweert him and the petitioner, vide judgment and decree, dated 12-11-2001. Feeling aggrieved by the said judgment and decree the Respondent No.2 filed an appeal before the learned Addl. District Judge, Alipur who was pleased to accept the same vide judgment and decree, dated 18-12-2002 and set aside the judgment and decree of the learned Rent Controller. Hence this writ petition.
4. Learned counsel for the petitioner contends that no evidence was produced by Respondent No.2 that he was in possession as the suit house owner of same and the documents filed by him according to the learned counsel for the petitioner are not sufficient to prove that Respondent No.2 was owner of the disputed house. It is also contended that there is nothing on the record to show that the house was rented out to the petitioner even through oral agreement as no one was produced to prove the agreement between the petitioner and Respondent No.2 evidence was also produced that in whose presence the petitioner had paid the rent to Respondent No.2. It is also contended that the findings arrived at by the learned Rent Controller were according to the evidence produced by Respondent No.2 but the learned Addl. District Judge has accepted the appeal on surmises and conjectures. Relies upon Ahmed Shah v. Mst. Bibi Sakina and another (PLD 1990 Lah. 48) in which the principle laid down by the Supreme Court of Pakistan in Rehmat Ullah v.
Ali Muhammad and another (1983 SCMR page 1064) has been followed that if it is established that the ejectment petitioner was owner of the house it is not necessary that the ejectment petition should be accepted unless it is proved that the ejectment petitioner was a landlord.
5. On the other hand learned counsel for Respondent No.2 opposes this petition on the ground that it is a writ petition which cannot be heard as an appeal and the report of the Local Commission was also in favour of Respondent No.2 that although the relationship of landlord and tenant was denied but the petitioner has failed to show that how he was in possession of the suit house hence he being in its illegal occupation was not entitled to retain the possession on the plea of adverse possession and that sufficient evidence was produced on the record. Relies upon Muhammad Nazeef Khan and others v. Mst. Mumtaz Begum (2002 CLC 1517) in support of his contentions.
6. I have heard the learned counsel for the parties and also gone through the impugned judgments and decrees of both the Courts below as well as the documents attached with this petition including the evidence adduced during trial. The onus to prove relationship of tenancy with the petitioner was on Respondent No.2 was filed the ejectment petition. In Para. 2 of the ejectment petition it was admitted by Respondent No.2 that the oral agreement was made between him and the petitioner in the presence of the witnesses but while appearing as A.W.1 he took a contradictory stand that it was an oral agreement and it was not made in the presence of the witnesses. Even otherwise only the respondent No.2 appeared as A.W.1 to prove that he was landlord and the petitioner was tenant. He has miserably failed to prove that the petitioner was his tenant as he failed to produce any other evidence except his oral statement which is found contradictory with the averments of his ejectment petition that the house was ever taken by the petitioner on rent and he had been paying the rent amounting to Rs.500 for two years. No receipt was produced by Respondent No.2 and even no witness was examined to prove that the petitioner had ever paid an amount of Rs.500 as monthly rent to Respondent No.2. No witness was also produced to prove that the petitioner was living as tenant in the said house.
6-A. On the other hand in the report of Commission of page 46 of the writ petition it has been mentioned that the house was in possession of the petitioner as illegal occupant. The report of the Local Commission cannot be considered as it was obtained in another suit filed by Respondent No.2 against Mst. Irshad Begum etc. And the petitioner was not a patty in the said suit. Any report obtained through Local Commission at the back of the petitioner cannot be relied upon against him. Even otherwise the said report does not disclose about the relationship of landlord and tenant between the petitioner and Respondent No.2. The other documents are not sufficient to prove the Respondent No.2 had ever rented out the house in question to the petitioner. Even if he is in illegal occupation, he cannot be dispossessed without due process of law. The ejectment petition was rightly dismissed by the learned Rent Controller. If respondent No.2 has produced some evidence to show that he was owner of the house that was not sufficient to accept the A.D.J., Lahore etc.- Respondent's ejectment petition in view of the principles laid down by the Supreme Court of Pakistan in Rehmat Ullah's case (supra). The relevant parties is reproduced 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. "
7. In the above circumstances when Respondent No:2 failed to prove the relationship of landlord and tenant between him and the petitioner, the learned Rent Controller was justified in dismissing the application of Respondent No.2 while the appeal has been accepted on surmises and - conjectures.
8. Following the above-said dictum C laid down by the Supreme Court of Pakistan this writ petition is accepted, the impugned judgment and decree, dated on 8-12-2002 is set aside, the appeal filed by respondent No. 2 is dismissed and judgment and decree, dated 12-11-2002 passed by the learned Rent Controller whereby ejectment petition filed by respondent No:2 was dismissed is upheld. However, respondent .1o.2 if files another suit for possession of the property, that will be dealt with by the Court without being influenced by this circler as this order has been passed only considering the relationship of landlord and tenant between the parties. There will be no order as to cost.