PLJ 2021 Peshawar (Note) 114
Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Constitution of
[Para 8 & 10] A, B & D
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 129(g) & 179--Duty of petitioner--Adverse presumption--When petitioner has contended that he has purchased disputed premises through an agreement to sell then he was duty bound to produce two marginal witnesses of deed as required under Article 79 of Order to prove deed and payment of sale consideration--Though, one of them was produced whereas other one was not produced despite fact that he was alive without any plausible reasons, thus, best available evidence was withheld from Court and, as such, in accordance with Article 129(g) of Order an adverse presumption could be drawn against petitioner. [Para 8] C
Mr. Iftikhar Ali Qadir, Advocate for Petitioner.
Qazi Muhammad Aqil Khan, Advocate for Respondents.
Date of hearing: 2.12.2019.
PLJ 2021 Peshawar (Note) 114
Present: Muhammad Naeem Anwar, J
IFTIKHAR KHAN--Petitioner
versus
SIKANDAR KHAN and 7 others--Respondents
W.P. No. 1167-P of 2019, decided on 2.12.2019.
Judgment
Haris Khan and others, the respondents-landlords (hereinafter called the respondents) had submitted an application before the learned Rent Controller, Mardan, for recovery of possession of shop, situated in Khasra No. 1957, properly described in para-1 of the head note of the application, and recovery of rent at the rate of Rs. 4000/- per month since October, 2010 till the ejectment of the Iftikhar, the petitioner-tenant (hereafter called the petitioner). It was contended that they are legal heirs of Mamoor Khan, who rented out the disputed shop to the petitioner at the rate of Rs. 4000/- per month, vide rent deed dated 17.6.2008, and, now, they being legal heirs of Mamoor Khan sought ejectment of the petitioner on the ground of default, personal need and violation of terms and conditions of the rent deed.
2. The petitioner, in his turn, while appearing before the Rent Controller, has submitted written reply wherein he contended that the disputed property/shop was sold out through an agreement deed dated 24.05.2008 by Mamoor Khan in his life time in his favour and, as such, there exist no relationship between the parties as tenant and landlords. It was further contended that he has spent millions of rupees on the disputed property after it was purchased and, now, he is owner in possession regarding which the sale consideration has already been paid to Mamoor Khan in his life time.
3. After institution of the ejectment application, the petitioner also instituted a suit for specific performance of an agreement deed dated 24.5.2008 before the civil Court with the contention that the property in question was purchased by him from Mamoor Khan through sale deed in lieu of Rupees fourteen lac, which were paid to him and the successors of Mamoor Khan are legally bound to transfer the suit premises in his name. It was also contended that entry in the revenue papers in favour of the respondents are ineffective upon their rights.
4. It is pertinent to mention that during pendency of the ejectment petition and civil suit, the petitioner submitted an application before the Rent Controller for sine die adjournment of the ejectment petition till disposal of the civil suit, while the respondents submitted an application for rejection of plaint under Order VII, Rule 11, C.P.C. The learned trial Court rejected both the applications and framed a preliminary issue with regard to existence or otherwise of the relationship between the parties as tenant and landlords, however, which order was challenged by the petitioner before the appellate Court as well as before this Court, but with no premium to him and, thus, attained the finality. The ejectment application and civil suit were consolidated, however, proceedings were ordered to be conducted in the ejectment application wherein both the parties produced their respective evidence. The main preliminary issue which was framed by the Rent Controller in the application for ejectment was in respect of the existence of relation between the parties as tenant and landlord. In order to substantiate their respective contentions the respondents produced Malik Said as PW-1 and Azhar as PW-2 while attorney of the respondents Sajjad Khan recorded his statement as PW-3. On the other hand, the petitioner himself appeared as RW-1. He also produced Khan Saib as RW-2 and Umar Said as RW-3. The learned Rent Controller, after hearing the parties, vide judgment dated 18.03.2015, accepted the application for ejectment and the petitioner was directed to vacate the suit premises within one month positively with further direction to pay the outstanding rent against him while suit of the Petitioner Bearing No. 35/1 was dismissed. The petitioner feeling aggrieved of the judgment and decree filed appeal, however, learned Additional District Judge, VIII, Mardan also dismissed the same, vide judgment dated 19.01.2019. Still not satisfied, the petitioner filed the instant W.P No. 1167-P/2019 and Civil Revision No. 160-P/2019. Since, both the writ petition and civil revision, have been filed against one and same judgment, therefore, I intend to dispose of the same through this single judgment.
5. Learned counsel for the petitioner contended that as the title of the property was disputed by the petitioner regarding which civil suit was instituted on basis of deed dated 24.05.2008, therefore, the Rent Controller was duty bound to have stayed the proceedings in the ejectment petition till final decision of the civil suit. He continued that as Mamoor Khan in his life time through deed, mentioned above, has transferred proprietorship of the disputed shop to the petitioner regarding which witnesses of the deed i.e., Oath Commissioner and one of the marginal witness besides his own statement was recorded before the Rent Controller on the basis of which it was properly proved by him that Mamoor Khan has transferred his proprietorship in his favour, as such, the inheritance mutation in favour of the respondents is wrong as at the time of death of Mamoor Khan, he was no more owner of the disputed shop, which could not be transferred or succeeded by the respondents. It was added that in accordance with Article 79 of the Qanun-e-Shahadat Order, 1984, marginal witness and Notary public were produced by the petitioner, who have specifically pleaded/corroborated the version as taken by him in his written reply in the ejectment application, therefore, the learned Rent Controller and learned appellate Court have miserably failed to appreciate the evidence in its true perspective. He has also argued that the respondents have also failed to prove relationship of landlord and tenant between the parties as in the life time of Mamor Khan, no rent he ever paid to him nor after his death rent was paid to the respondents and, as such, there exists no relationship of landlord and tenant between the parties but despite of specific stance coupled with the corroborative and direct evidence, the learned Rent Controller as well as the appellate Court have passed the impugned order of his ejectment, which resulted into grave miscarriage of justice.
6. Conversely, learned counsel for the respondents vehemently argued that the tenancy was admitted by the petitioner in his written statement, as such, it was not legal requirement for them to prove the agreement/rent deed on the basis of which the disputed shop was rented out by their predecessor, namely, Mamor Khan in favour of the petitioner. Similarly, as the deed was already admitted, therefore, in accordance with the provisions of Article 113 of the Qanun-e-Shahadat Order, 1984, they were not required to prove the same. He further contended that the stance as taken by the petitioner that the disputed shop was purchased by him from predecessor of the respondents in lieu of sale consideration of rupees fourteen lac was required to be proved regarding which neither the petitioner has been able to prove the scribing of the so called sale deed nor there is any evidence in respect of the payment of the sale consideration to Mamoor Khan. It was also added that both the Courts below have properly appreciated the evidence produced by the parties in its true perspective and applied the correct law.
7. I have considered submissions of learned counsel for the parties and gone through record of the case.
8. Admittedly and undeniably, the disputed premises was the ownership of Mamoor Khan and in his life time it was rented out to the petitioner at the rate of Rs. 4000/- per month. It was not the case of the petitioner that he is the successor of Mamoor Khan or anyone else rather it was contended by him that on the basis of sale agreement Mamoor Khan has sold his ownership in his favour in lieu of Rupees fourteen lac. In order to prove the sale deed, the petitioner produced one marginal witness of the deed and the attesting witness/notary public. Interestingly, both the witnesses, who were supposed to corroborate the stance as taken by the petitioner in respect of the sale consideration, but have stated categorically that in their presence no money change hands. For the purpose of proving the agreement to sell, it was the legal duty of petitioner not only to prove the scribing of the deed by Mamoor Khan through convincing, direct and tangible evidence but also to prove the payment of sale consideration. There is not even an iota of evidence which could lead towards the plea taken by the petitioner in respect of the payment of sale consideration. The recital of the deed contents shows that the entire sale consideration was paid in lump sum, whereas the witnesses produced by the petitioner have narrated different story by stating that the sale consideration was paid in three different installments, i.e., rupees four lac, six lac and four lac respectively, which is totally in negation of the verbatim of the deed on which the petitioner intended to built the structure of the case. Though, the respondents have not produced the marginal witnesses of the rent deed but as the petitioner has admitted that the suit premises was rented out by Mamoor Khan in his favour and, as such, the tenancy was admitted by him in accordance with the basic principle of Qanun-e-Shahadat Order i.e., “fact admitted need not to be proved”. The respondents were not required by the law to have produced before the Court the marginal witnesses of the rent deed. In such like cases, when relationship is denied and the Rent Controller in accordance with the provisions of Section 13(6) of the Urban Rent Restriction Ordinance, 1959, is required to have framed only a single issue i.e., the existence of relationship of both the parties. In case, relationship is proved then, ultimately, the tenant is to be ejected straightaway or otherwise the petition deserve dismissal. Contrary to the aforementioned version of the respondents, when the petitioner has contended that he has purchased the disputed premises through an agreement to sell then he was duty bound to produce the two marginal witnesses of the deed as required under Article 79 of the Order ibid to prove the deed and payment of sale consideration. Though, one of them was produced whereas the other one was not produced despite the fact that he was alive without any plausible reasons, thus, best available evidence was withheld from the Court and, as such, in accordance with Article 129(g) of the Order ibid, an adverse presumption could be drawn against the petitioner.
9. The arguments of the respondents that the Rent Controller was required to have stayed the ejectment proceedings till final disposal of the civil suit is concerned, as stated earlier, the said order was challenged upto this Court which was upheld and as such gained the finality.
10. The gist of the above discussion is that the petitioner has miserably failed to prove the alleged agreement to sell in his favour qua payment of the sale consideration, thus, the relationship between the parties as tenant and landlords stands proved, therefore, the Rent Controller as well the Appellate Court have properly appreciated the evidence on record in its true perspective and applied the law on the lis properly, hence, the instant petition as well as the revision petition being without any substance are hereby dismissed.
(Y.A.) Order accordingly
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