Ejectment successful in rent case.
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Must read Judgement
Stereo HCJ DA 38
JUDGMENT SHEET
LAHORE HIGH COURT,
RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT
Writ Petition No.3978 of 2024
Izzat Khan
V/S Additional District Judge etc.
J U D G M E N T
Date of hearing
10.02.2025
Petitioner(s) by
Mr. Hassan Raza Pasha, ASC.
Respondent(s) by
Mr. Shahid Latif Hashmi, Advocate for
Respondent No.3.
JAWAD HASSAN, J. By invoking the constitutional
jurisdiction of this Court under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner
has called in question the vires of judgment dated 24.10.2024 passed by
Additional District Judge, Rawalpindi whereby appeal filed by the
Petitioner against judgment dated 28.11.2023 passed by Special Judge
(Rent), Gujar Khan was dismissed. These concurrent findings of fact
have been assailed through this constitutional petition.
2.
Precisely the facts necessary for adjudication of instant petition
are that the Respondent No.3 filed ejectment petition before Special
Judge (Rent), Gujar Khan seeking eviction of the Petitioner on the
ground of default and personal need as she is owner of disputed shop
through registered sale deed No.1079 dated 05.07.2018 and subsequent
mutation No.4190 dated 30.10.2018 purchased from one Sajid
Mehmood. The ejectment petition was resisted by the Petitioner, who
filed an application for leave to contest denying the relationship of
landlord and tenant on the ground that he purchased the disputed shop
from Sajid Mehmood through agreement to sell on 01.08.2014 and
Writ Petition No.3978 of 2024
2
mutation No.4240 dated 30.03.2019 and now he is in possession of the
same and question to pay the rent to the Respondent No.3 does not
arise. By way of order dated 19.09.2022 leave to contest was allowed in
favour of the Petitioner. From the divergent pleadings of the parties, the
Special Judge (Rent), Gujar Khan framed issues to the following
effect:-
ISSUES
1. Whether petitioner is sole owner of shop and
respondent obtained the shops from the
petitioner on rent therefore, respondent is liable
to be evicted from the rented premises and
petitioner is entitled for order as prayed for?
OPA
2. Whether ejectment petition of the petitioner is not
maintainable in present form and liable to be
rejected? OPR
3. Relief.
After framing of issue, both the sides produced their respective
evidence and on completion of the same ejectment petition was allowed
vide judgment dated 28.11.2023. The Petitioner, feeling aggrieved from
the said judgment preferred an appeal under Section 28 of the Punjab
Rented Premises Act, 2009 (the “Act”) before the Additional District
Judge, Gujar Khan, which was also dismissed vide judgment dated
24.10.2024, hence this petition.
3.
Learned counsel for the Petitioner inter alia argued that both the
impugned judgments are illegal and the same are based on misreading
and non-reading of evidence; that the Petitioner fully established the
factum of taking the disputed shop on rent from original owner on
01.08.2014 for a period of ten years and later on purchasing the same
vide mutation No.4240 dated 30.03.2019; that the Petitioner further
established that he never remained tenant of the Respondent No.3 but
the same has not been taken into consideration by the Courts below.
4.
Conversely, learned counsel for Respondent No.3 controverted
the stance of the Petitioner by supporting the impugned judgments
passed by the lower Appellate Court and Special Judge (Rent), Gujar
Writ Petition No.3978 of 2024
3
Khan that the same have been passed pursuant to proper appreciation of
the facts and circumstances of the case.
5.
I have heard learned counsel for the parties and gone through the
available record.
6.
As already observed that the Respondent No.3 while claiming
herself owner/landlord of the disputed shop moved an ejectment
petition under Section 15 of the “Act” for eviction of the Petitioner on
the grounds of default in payment of rent and personal need. The
Petitioner, while submitting his reply denied the relationship of
landlord and tenant and pleaded that disputed shop was purchased by
him from original owner namely Sajid Mehmood during the
continuance of tenancy period through mutation No.4240 dated
30.03.2019. Since the Respondent No.3 has moved the ejectment
petition for eviction of the Petitioner on the ground that she is owner of
the disputed shop, so primarily it was her bounden duty to prove the
existence of relationship of landlord and tenant between the parties so
as to vest the jurisdiction to the learned Rent Tribunal to proceed with
the ejectment petition. In documentary evidence the Petitioner produced
attested copy of mutation No.4140 dated 30.03.2019 as Exh.R2,
attested copy of register of record of rights for the year 1998-99 of
Khewat No.549 as Exh.R3, photograph as Mark-R-1 and copy of rent
agreement as Mark-R2 (under objection). While the Respondent No.3
produced copy of registered sale deed No.1079/18 as Exh.P5, attested
copy of sale deed No.391/19 as Exh.P6, copy of mutation No.4180 as
Mark-A, copy of mutation No.4249 as Mark-B. The basic document
produced by the Petitioner was Exh.R2 on the basis of which he
claimed himself to be the owner of the disputed shop whereas the
Respondent No.3 produced Exh.P5 in support of her claim which is the
sale deed. The dispute between the parties was with regard to purchase
of one marla land through two different documents on the basis of
which the parties claimed themselves to be the owners. It is not
disputed by the partes that one marla land was purchased by them from
Writ Petition No.3978 of 2024
4
original owner namely Sajid Mehmood. The learned Additional District
Judge, Rawalpindi observed that:
“The document tendered by appellant was placed on
record but as per Ex.A-5 respondent/petitioner
purchased the property measuring one Marla from one
Sajjid Mehmood through registered sale deed with
specific description and with proper measurement of
adjoining properties and no difference is found in
description given in registered sale deed and
description given by the respondent/petitioner in
eviction petition and said sale was subsequently
incorporated through mutation No.4190 dated
30.10.2018. On the other hand the
appellant/respondent tendered mutation No.4240 dated
30.03.2019 in his documentary evidence and claimed
his ownership on the basis of said mutation. But said
document reveals that the appellant/respondent
purchased one marla property from one Sajjid
Mehmood from whole Khewat comprising of 17 kanals
11 marlas and no description was provided in it. So
respondent/petitioner became owner of disputed shop
through registered sale deed and subsequent mutation
with proper description of property mentioned in sale
deed while appellant/respondent purchased one marla
land from whole Khewat without any description. Thus
it was rightly observed by the Rent Tribunal that the
appellant/respondent was under heavy burden to prove
that his status of tenancy was converted into ownership
to which he remained miserably failed. On the other
hand the respondent/petitioner became owner of the
disputed shop after purchasing the same from Sajjid
Mehmood. The appellant/respondent was tenant of said
person who remained miserably failed to discharge the
onus that his status was converted from tenant to owner
of disputed shop. So this issue was rightly decided in
favor of respondent/petitioner and against the
appellant/respondent”.
7.
In view of above observation, it can safely be said that a
registered sale deed, with accurate metes and bounds, when executed
with due compliance of law, proper stamp duty, payment and valid title
transfer from a legally competent seller, confers a valid and enforceable
right upon the purchaser. Upon considering the evidence, legal
principles, and arguments, this Court holds that the Respondent No.3
Writ Petition No.3978 of 2024
5
has acquired a better title through a duly executed registered sale deed,
free from legal infirmities and the Petitioner’s claim, based on a weak
and legally flawed mutation, does not override the Respondent No.3’s
valid ownership rights.
8.
As per preamble of the “Act” the purpose and object of the law
is to regulate the relationship of landlord and tenant and to provide a
mechanism for settlement of their disputes in an expeditious and
cost-effective manner. An application for ejectment can be filed in
respect of rented premises before the Rent Tribunal established under
Section 16 of the “Act” for the said purpose. The jurisdiction of a Rent
Tribunal is confined to the matters, arising out from a relationship of
tenancy between landlord and tenant. For the said purpose the terms
“landlord” and “tenant” become of significance importance. A person
seeking eviction of an occupant from the premises is bound to prove
that he is a landlord and the person, whose eviction is required is tenant.
The term “landlord” is defined in Section 2(d) whereas “tenant” is
defined in Section 2(l) of the “Act”. For the purpose of convenience
both the provisions are reproduced below :-
“(d) “Landlord” means the owner of a premises and
includes a person for the time being entitled or
authorized to receive rent in respect of the premises;
(l) “Tenant” means a person who undertakes or is
bound to pay rent as consideration for the occupation
of a premises by him or by any other person on his
behalf and includes;
(i) a person who continues to be in occupation of the
premises after the termination of his tenancy for the
purpose of a proceeding under this Act;
(ii) legal heirs of a tenant in the event of death of the
tenant who continue to be in occupation of the
premises; and
(iii)a sub-tenant who is in possession of the premises or
part thereof with the written consent of the
landlord;”
9.
For proving the existence of relationship of landlord and tenant, it
is thus a pre-condition that the person seeking eviction must establish
Writ Petition No.3978 of 2024
6
that the occupant has undertaken or bound to pay rent as consideration
for the occupation of the premises to him.
10.
From the available material it can safely be inferred that
Petitioner has failed to bring on record any tangible evidence
substantiating the non-existence of relationship of landlord and tenant
between the parties. Needless to observe that the learned Rent Tribunal
established under Section 16 of the “Act” can only exercise the
jurisdiction with regard to rented premises if there exist relationship of
landlord and tenant between the parties. The question relating to
existence of relationship of landlord and tenant interse parties is
undoubtedly a question of fact which has been concurrently resolved by
both the courts below in favour of Respondent No.3. It is trite law that
constitutional jurisdiction cannot be resorted merely on the ground that
from the available material some other view is possible. Reference in
this respect can be made to “Mian UMAR IKRAM-UL-HAQUE versus
Dr. SHAHIDA HASNAIN and another” (PLJ 2017 SC 1) wherein it
is held that:-
“3. Leave has been granted to consider whether an
order under Section 24 of the Act can be passed where
the relationship of tenancy has been denied and the effect
of Section 10 of the Act upon such denial. Although the
legislative history of rent laws in Pakistan has been
discussed in detail in Rana Abdul Hameed Talib’s case
(supra), nevertheless we find it expedient to briefly
reiterate the same for the sake of completeness before
deciding the proposition in hand. Initially disputes inter
se landlords and tenants relating to leases and tenancies
were dealt with under the general law of the land i.e.
Transfer of Property Act, 1872 (excluding leases of
agricultural properties, dealt with by the revenue Courts)
and the same were adjudicated by the Courts of general
jurisdiction (see Section 9, CPC). The West Pakistan
Rent Restriction Ordinance, 1959 (Ordinance) a special
law was enacted for the purposes of resolution of such
disputes between landlords and tenants within the
purview of the provisions mentioned therein, particularly
Section 13 of the Ordinance which provided the grounds
upon which a tenant may be evicted by the landlord. The
definitions of landlord and tenant were specifically
Writ Petition No.3978 of 2024
7
provided and it is clear that jurisdiction under this
special law was endowed in three ways. The first was
jurisdiction upon the subject matter i.e. the property was
to be urban immovable property – residential or nonresidential, or rented land etc. The second was
jurisdiction upon the parties i.e. there was to be a
relationship of tenancy, in other words the dispute must
be between the landlord and tenant as defined in the law.
The third was territorial jurisdiction. Therefore if any of
the aforementioned requirements were not met, the Rent
Controller would have no jurisdiction over the matter
before him. With respect to the second type of
jurisdiction: if the respondent in a rent matter denied the
relationship of tenancy, a question of jurisdictional fact
would arise. The doctrine of jurisdictional fact connotes
that the jurisdiction of an adjudication forum is
dependent upon the ascertainment and determination of
certain facts. In this behalf, N.S. Bindra in the
Interpretation of Statutes Seventh Edition, 1984, p.229,
has defined “Court’s jurisdiction to determine the
jurisdictional fact”, as follows:--
“Court’s jurisdiction to determine jurisdictional
facts. It is well settled that a Tribunal can
investigate into the facts relating to the exercise of
its jurisdiction when that jurisdictional fact itself is
in dispute. Where a Tribunal is invested with
jurisdiction to determine a particular question, it is
competent to determine the existence of the facts
collateral to the actual matter which the Tribunal
has to try. This power to decide collateral facts is
the foundation for the exercise of its jurisdiction.”
11.
Moreover, there are concurrent findings of facts recorded by
both the Courts below, which apparently do not suffer from any
legal infirmity. Reliance is placed on “NOOR-UN-NISA and
others Versus UNITED BANK LIMITED through Authorized
Officers and 2 others” (PLD 2021 Lahore 90). This Court is also
not ordinarily inclined to interfere with the concurrent findings of fact
recorded by the Courts below, particularly when they are not shown to
be contrary to record or arbitrary or whimsical. In the instant case, apart
from the bald assertions, no specific instance was brought to the notice
of the Court that might be regarded as a case of misreading or non-
Writ Petition No.3978 of 2024
8
reading of material evidence, having direct and decisive bearing on the
issues. Both the Courts exercised the jurisdiction vested in them,
without violating any principles governing the assessment and appraisal
of evidence.
12.
Nutshell of above discussion is that both the judgments are wellreasoned having been passed after taking into consideration every
aspect of the case. This petition holds no merit hence same is hereby
dismissed.
(JAWAD HASSAN)
JUDGE
عزت خان کے کیس ہارنے کی درج ذیل وجوہات تھیں:1. قانونی ملکیت ثابت نہ کر پانا
عزت خان نے دعویٰ کیا کہ اس نے دکان خرید لی تھی، لیکن اس کے پاس رجسٹرڈ سیل ڈیڈ (Registered Sale Deed) نہیں تھی۔
اس نے صرف انتقالِ ملکیت (Mutation) کی بنیاد پر دعویٰ کیا، جو کہ مالکیت کا حتمی ثبوت نہیں ہوتا۔
عدالت نے واضح کیا کہ رجسٹرڈ سیل ڈیڈ زیادہ مستند قانونی ثبوت ہے، جبکہ محض انتقالِ ملکیت پر انحصار کافی نہیں تھا۔
2. کرایہ داری کا تعلق ثابت ہو جانا
عزت خان نے خود کو مالک ثابت کرنے کی کوشش کی، لیکن وہ مدعا علیہہ نمبر 3 کے کرایہ دار ہونے سے واضح طور پر انکار نہ کر سکا۔
کرایہ داری کے کیسز میں عام طور پر یہ اصول ہوتا ہے کہ اگر کرایہ داری کا رشتہ کبھی قائم ہو چکا ہو تو جب تک مالک کی تبدیلی کا ٹھوس ثبوت نہ ملے، کرایہ داری برقرار سمجھی جاتی ہے۔
مدعا علیہہ نے ثابت کیا کہ وہ قانونی طور پر ملکیت حاصل کر چکا ہے، اور عزت خان اس کے کرایہ دار کے طور پر تسلیم کیا جاتا ہے۔
3. کمزور شواہد
عزت خان کے پاس کوئی تحریری معاہدہ فروخت (Agreement to Sell) یا رجسٹرڈ سیل ڈیڈ موجود نہیں تھی۔
اس کے صرف زبانی دعوے اور غیر مستند کاغذات (صرف انتقال) تھے، جنہیں عدالت نے ناکافی سمجھا۔
عدالت نے یہ بھی نوٹ کیا کہ اگر عزت خان واقعی دکان خرید چکا ہوتا تو وہ رجسٹری کروا چکا ہوتا۔
4. رینٹ ٹربیونل اور اپیلٹ عدالت کے فیصلوں کا برقرار رہنا
پہلے رینٹ ٹربیونل نے مدعا علیہہ نمبر 3 کے حق میں فیصلہ دیا۔
پھر ایڈیشنل ڈسٹرکٹ جج نے بھی اپیل مسترد کر دی، جس سے ظاہر ہوا کہ عزت خان کا کیس کمزور تھا۔
جب ہائی کورٹ میں کیس پہنچا تو وہ کوئی نئی یا مضبوط قانونی بنیاد فراہم نہ کر سکا، جس کی وجہ سے اس کی درخواست مسترد ہو گئی۔
5. قانونی نکات:
ہائی کورٹ نے فیصلہ دیا کہ:
کرایہ داری کے مقدمات میں ملکیت کا تنازعہ نہیں دیکھا جاتا، بلکہ صرف کرایہ دار اور مالک کا تعلق دیکھا جاتا ہے۔
اگر عزت خان کو ملکیت کا دعویٰ کرنا تھا تو اسے دیوانی عدالت (Civil Court) میں ملکیت کا مقدمہ دائر کرنا چاہیے تھا، نہ کہ رینٹ ٹربیونل میں بے دخلی کے خلاف دفاع کرنا چاہیے تھا۔
چونکہ مدعا علیہہ نمبر 3 کے پاس رجسٹرڈ سیل ڈیڈ موجود تھی، اس لیے قانونی طور پر وہ مالک تھا، اور کرایہ داری کا رشتہ برقرار سمجھا گیا۔
نتیجہ:
عزت خان کرایہ داری سے انکار کرتے ہوئے بھی متبادل طور پر خود کو قانونی مالک ثابت نہ کر سکا۔
اس کے دعوے میں تضاد تھا: وہ کرایہ داری کو رد بھی کر رہا تھا لیکن اپنی ملکیت کا قانونی ثبوت بھی فراہم نہ کر سکا۔
عدالت نے مدعا علیہہ نمبر 3 کے حق میں فیصلہ برقرار رکھا، اور عزت خان کی درخواست خارج کر دی۔
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