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Official Citation: 2025 PHC 278
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2025
Decision Date: 2025-07-29
Parties: Muhammad Nazeer (Deceased) through LRs vs Master Naveed & others
Ruling Summary: This decision was rendered by the Peshawar High Court on 2025-07-29, officially reported as 2025 PHC 278. In this matter between Muhammad Nazeer (Deceased) through LRs and Master Naveed & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025PHC278
Court Name: Peshawar High Court Judge(s): Muhammad Naeem Anwar Title: Muhammad Nazeer (Deceased) through LRs vs Master Naveed & others Case No.: W.P No.1974/2006 Date of Judgment:2025-07-29 Reported As: 2025 PHC 278 Result: Petition Dismissed
JUDGMENT
JUDGMENT MUHAMMAD NAEEM ANWAR, J:- Through this common judgement, I propose to decide the instant Writ Petition and connected W.P No.1968/2006 titled "Muhammad Nazeer (Deceased) through LRs Vs. Muhammad Saeed & others" and W.P No.2049/2006 titled "Muhammad Nazeer (Deceased) through LRs Vs. Muhammad _laved & others" as an identical question of law and fact is involved in all these petitions. 2. The chequered history of the litigation is that Muhammad Nazeer the predecessor-in-interest of the petitioners filed three ejectment petitions bearing No.61/RC on 25.11.1997 for recovery of possession of the shop bearing No.1373 situated inside Hashtnagri Gate, Peshawar City, he has filed ejectment application No.57/RC on 28.11.1997 against Muhammad Saeed the respondent of connected petition for recovery of possession of shop (as described in heading of the application) and another ejectment petition bearing No.58/RC filed on 25.11.1997 against Muhammad laved for shop No.1373 opposite to Rahim Bakhsh Saria inside Hashtnagri Gate Peshawar City with the plea that the initially Qamar Din was the owner of property who was survived by Mst. Maqbool Begum, Malik Muhammad Ashiq & Mr. Abdul Hakim. Mst. Maqbool Begum had a son and daughter i.e., Mst. Behrawar Sultana (daughter) & Sher Muhammad (son). petitioner No.1 and predecessor-in- interest of the petitioners No.2 to 4 Kareem Bakhsh was the landlord of the rented premises, the possession whereof were handed over to respondents of the respective applications @ Rs.500/- per shop, Kareem Bakhsh had died leaving behind petitioners No.2 to 4 (their brothers and sisters). It was alleged that the respondents have not paid the rent w.e.f May 1995 till October 1997 despite repeated directions. It was further averred that the conditions of the shops are dilapidated and
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requires reconstruction, however, the possession of the shop was required to them for personal need. The applications were resisted with an outright denial of the existence of the relationship of tenant and landlord. The respondents in their written replies averred that. Sher Muhammad and Mst. Behrawar Sultana were their landlord who died issueless and that the petitioner had never alleged himself to be the owner of property nor he has ever received any rent from them and that till August 1997, the rent has been paid to Mst. Behrawar Sultana, whereas, the rent thereafter in view of the direction of the court in another petition is being deposited before the court. Nevertheless, Kareem Bakhsh or the petitioners have got no connection/concern or interest with the disputed property; hence, no ejectment could be sought against them. The petitioner filed re- joinder in response to the written reply of respondents whereafter an issue was framed that whether the relationship of landlord and tenant exists between the parties. The parties were directed to adduce their evidence. Petitioner himself appeared as PW-1 and closed his evidence. Statement of Nusrat Ullah Civil Nazir, Office of Senior Civil judge, Peshawar was recorded as CW-1, whereas, the respondents produced their evidence. Learned Rent Controller dismissed the ejectment applications through his judgement dated 07.02.2002 and appeal thereagainst was allowed by learned Additional District Judge-II, Peshawar on 15.04.2003, which judgement was questioned before this Court through W.P Nos.687, 688 and 689, which were decided through consolidated judgement in Writ Petition No.687. All the Writ Petitions were allowed, judgements & orders of learned appeal court was set aside, and the matter was remanded to the learned appeal court for decision afresh. The order of this Court was questioned through Civil Petitions Nos.576 to 578-P/2004, before the Hon'ble Supreme Court, which were dismissed and leave to appeal was received vide judgement dated 30.12.2004. Learned appeal court through impugned judgement dated 06.02.2006 dismissed the appeals of the petitioners; hence the instant petition. 3. This and the connected petitions were heard by this Court on 03.02.2015 and were allowed by setting aside the judgement and order of both the courts below (Rent Controller and appeal court) with the directions to respondents (alleged tenants) to hand over the vacant possession of the rented premises to the petitioner however, the order of this Court was questioned before Hon'ble Supreme Court through Civil Appeal Nos.284, 285 and 286 of 2015, which were allowed on 13.09.2023 and the matter was remitted to this Court for decision afresh. 4. Learned counsel for the petitioners contended that admittedly the respondents were the tenants, yet they have not admitted the petitioners as their landlord, but in view of their stance of being tenants they could not dispute the ownership of the petitioners. He contended that Mst. Behrawar Sultana and Sher Muhammad were the legal heirs of Mst. Maqbool Begum, who was the daughter of Qamar Din (late). Both Sher Muhammad and Mst. Behrawar Sultana died issueless to whom the erstwhile owner Abdul Hakeem had gifted the rented property. Since Sher Muhammad died issueless in 1995 and his ownership was inherited by Behrawar Sultana who too died issueless however, through gift deed dated 16.02.1994 has gifted the rented property to the petitioners. He also contended that the petitioner No 1 being the landlord used to receive the rent from respondents who were served with the notice of change of ownership under Section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959, however, they have stopped the payment of rent and disputed the status of petitioner as their landlord along with the denial of relationship thus, they could not retain the possession of the rented premises. He maintained that when the tenants have disputed the relationship and status of the ownership of the petitioners, they were required to prove it through cogent, reliable and direct evidence which was lacking on the part of the respondents. He vociferated that the respondents have maneuvered questioning their relationship with the connivance of some of the legal heirs of Sher Muhammad and Mst. Behrawar Sultana but could not prove their contention before the Court and all those applications were decided in favour of petitioners, however, the learned appeal court and the Rent Controller has travelled beyond
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jurisdiction. Lastly contended that in consonance with the direction of the Apex Court through judgement dated 13.09.2023, respondents were directed to pay the rent and this Court was required to direct them to deposit the rent but the respondents have violated the order of this Court. He also produced the copy of letter of administration from the Court of Guardian Judge, Peshawar in Case No.1644/02 of 2019 titled "Bashir Ahmad etc. Vs. Public at Large" and requested that since the properties are being managed by the petitioners, they are the owners of the properties and are entitled to recover the possession of the disputed shops from the respondents alongwith the payment of rent. He in support of his submissions made reliance in the cases of "M.H. Musadaq Vs. Muhammad Zafar Iqbal & another" (2004 SCMR 1453), "Mueen Ullah Vs. The Medical Superintendent, DHQ Hospital, Kasur & another" (1996 SCMR 1156), "Musawir Ahmad & others Vs. Ghulam Rasool & another" (2014 MLD 229), "M. Nazir Vs. S. Shaukat Ali" (1982 SCMR 985), "Mst. Sonya Sharif Vs. Bashir Kundi through Leg-al Heirs & others" (2013 MLD 1786), "Manzar Shah alias Manzar Hussain Naqvi Vs. Ch. Shafqat Hussain & 02 others" (2015 YLR 595), "Ahmad Yar through LRs Vs. Additional District fudge & others" (2015 YLR 2476), "Merai-Uddin Ghauri Vs. Muhammad Aslam & others" (PLD 2008 Karachi 160), "Abdullah & another Vs. Mst. Farzana" (2014 CLC 1463) and "Chaman Zada Vs. Shah Zeb & 02 others" (2014 CLC 151). 5. Mr. Abdul Samad Khan, Advocate, representing respondents in all the petitions supported the impugned orders and contended that unless the relationship is proved, (no order for ejectment could be passed against the petitioners. He also contended that the respondents have deposited the rent till vociferated that the respondents have maneuvered questioning their relationship with the connivance of some of the legal heirs of Sher Muhammad and Mst. Behrawar Sultana but could not prove their contention before the Court and all those applications were decided in favour of petitioners, however, the learned appeal court and the Rent Controller has travelled beyond jurisdiction. Lastly contended that in consonance with the direction of the Apex Court through judgement dated 13.09.2023, respondents were directed to pay the rent and this Court was required to direct them to deposit the rent but the respondents have violated the order of this Court. He also produced the copy of letter of administration from the Court of Guardian Judge, Peshawar in Case No.1645/02 of 2019 titled " Bashir Ahmad etc. Vs. Public at large" and requested that since the properties are being managed by the petitioners, they are the owners of the properties and are entitled to recover the possession of the disputed shops from the respondents alongwith the payment of rent. He in support of his submissions made reliance in the cases of "M.H. Musadaq Vs. Muhammad Zafar Iobal & another" (2004 SCMR 1453), "Mueen Ullah Vs. The Medical Superintendent,_DHQ Hospital, Kam- & another" (1996 SCMR 1156), "Musawir Ahmad & others Vs. Ghulam Rasool & another" (2014 MLD 229), "M. Nazir Vs. S. Shaukat Ali" (1982 SCMR 985), "Mst. Sonya Sharif Vs. Bashir Kundi through Legal Heirs & others" (2013 MLD 1786), "Manzar Shah alias Manzar Hussain Naavi Vs. Ch. Shafoat Hussain & 02 others" (2015 YLR 595), "Ahmad Yar through LRs Vs. Additional District Judge & others" (2015 YLR 2476), "Meraj-Uddin Ghauri Vs. Muhammad Aslam & others" (PLD 2008 Karachi 160), "Abdullah & another Vs. Mst. Farzana" (2014 CLC 1463) and "Chaman Zada Vs. Shah Zeb & 02 others" (2014 CLC 151). Mr. Abdul Samad Khan, Advocate, representing respondents in all the petitions supported the impugned orders and contended that unless the relationship is proved, no order for ejectment could be passed against the respondents. He also contended that the respondents have deposited the rent till December, 2025 before the Rent Controller and have placed on file the receipts through separate application in all the petitions. 6. Arguments heard record perused. 7. In their respective ejectment applications, the petitioners contended that their predecessor-in- interest, Karim Bakhsh, was the landlord of the disputed property, while the respondents were
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tenants. Karim Bakhsh died issueless, and petitioners No. 2 to 4 are his siblings. The ejectment was sought on the ground of default in rent payment from April 1995 until the institution of the applications. In their written replies, the respondents categorically denied the existence of any landlord-tenant relationship. Consequently, the petitioners filed a rejoinder (further and better statement). In paragraph 3 of the rejoinder, they asserted that after the death of Sher Muhammad and Mst. Behrawar Sultana, they became landlords of the property. However, when one of the petitioners appeared as PW-1, he stated during cross-examination that Sher Muhammad had died in 1995, whereas Mst. Behrawar Sultana died in 1997. He further admitted that Sher Muhammad and Mst. Behrawar Sultana were not the owners of the property and stated that Mst. Behrawar Sultana had never received rent after Sher Muhammad's death. It is an admitted fact that the respondents were not the direct tenants of the petitioners. The petitioners instead relied upon the claim that Abdul Hakeem Khan, who owned various properties including the rented premises, had died issueless. During his lifetime, through a registered deed dated 17.02.1993, he distributed his properties among his legal heirs, including his nephew Sher Muhammad, who became the owner of the disputed premises. It was further alleged that Sher Muhammad, also issueless, executed a gift deed dated 16.02.1994 in favour of Muhammad Nazeer and Karim Bakhsh jointly, while retaining usufruct of the property during his lifetime. Upon his death, the petitioners claimed to have started collecting rent from the respondents. The petitioners also annexed a pedigree table showing that Qamar Din was succeeded by Mst. Maqbool Begum, Malik Muhammad Ashiq, and Abdul Hakeem. Mst. Maqbool Begum was survived by Mst. Behrawar Sultana and Sher Muhammad, while Karim Bakhsh was the son of Malik Muhammad Ashiq. Another pedigree table showed Sher Muhammad as the nephew of Abdul Hakeem, who was also survived by his widow Ameena Begum and Muhammad Ashiq. According to the petitioners, through Will Deed No. 7 dated 23.05.1943, Abdul Hakeem transferred the property to his nephew Sher Muhammad. Subsequently, Sher Muhammad, by way of the gift deed dated 16.02.1994, transferred the property to Muhammad Nazeer and Malik Karim Bakhsh. The petitioners further relied on rent agreement Ex. PW-1/2 dated 22.03.1993, whereby Karim Bakhsh (son of Malik Muhammad Ashiq and one of the transferees from Sher Muhammad) allegedly handed over possession of the rented premises to the respondents. This assertion, however, was categorically denied by the respondents, though they did not claim ownership of the property themselves. It must be clarified that ownership, as such, is not directly relevant in matters before the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959. Under sections 2(e) and (i) of the Ordinance, a landlord is defined as any person entitled to receive rent in respect of a building or rented land, whether on his own account or on behalf of another person, or in a representative capacity (trustee, guardian, receiver, executor, or administrator). The definition also includes a tenant who sublets a building or rented land in the prescribed manner, as well as every person deriving title under the landlord. A tenant, on the other hand, is defined as 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 termination of tenancy, and (b) the wife and children of a deceased tenant. However, the definition excludes a person placed in possession of the building or land by a tenant without the landlord's written consent, or a person entrusted with the collection of rents or fees in public places such as markets, cart stands, slaughterhouses, or shops leased out by municipal or improvement authorities. 8. The petitioners have based their claim of ownership on the documents annexed with the instant petition, asserting transfer of title through Sher Muhammad, who himself derived the property as a beneficiary from Malik Abdul Hakeem. If this assertion is correct, then Mst. Behrawar Sultana had no connection whatsoever with the property and could not have become a transferee as the legal heir of Sher Muhammad, who himself has transferred the property to the predecessor in interest of petitioner. The documents relied upon by the petitioners, namely Deed No. 7 dated 23.02.1943 and
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the Gift Deed dated 16.02.1994, are inconsistent with the stand taken by them. In paragraph 3 of the preliminary objection in their rejoinder, the petitioners claimed to have become landlords after the death of Sher Muhammad and Mst. Behrawar Sultana. The Gift Deed dated 16.02.1994, however, left nothing to be transferred upon the death of Sher Muhammad, thereby negating their said plea. From the rejoinder itself, it is evident that Mst. Behrawar Sultana had no nexus with the rented premises. Although the jurisdiction of the Rent Controller is limited and does not extend to determination of ownership, once the respondents denied the relationship of landlord and tenant and the petitioners filed their rejoinder alleging transfer of rights through Sher Muhammad, the burden squarely lay upon the petitioners to prove the documents relied upon for establishing ownership and, consequently, the existence of landlord-tenant relationship, which was the sole issue framed by the learned Rent Controller. The learned counsel for the petitioners raised two principal contentions: first, that the respondents had not claimed ownership of the rented premises; and second, that they were estopped from disputing the title of the petitioners. Both contentions were of considerable significance, yet the petitioners were required to establish their status as landlords in the first instance and thereafter prove the existence of the relationship of landlord and tenant with the respondents. It is an admitted position that, except for the statement of Muhammad Nazeer, special attorney for the petitioners, no other witness appeared before the Rent Controller either to establish transfer of title in favour of the petitioners in the capacity of landlords, or to prove the existence of the landlord-tenant relationship. The alleged rent agreement of 1993 was also not proved, as neither the scribe nor the marginal witnesses, namely Akhtar Jan s/o Ghulam Jan and Syed ljaz Ahmad Shah s/o Syed Rehmat Shah, were produced before the Rent Controller. Similarly, the stamp vendor was not examined. Most importantly, the original Iqrar Nama/rent deed was not tendered in evidence. Furthermore, no effort was made to prove receipt of rent by the petitioners from the date of the alleged transfer of ownership, as claimed in paragraph 2 of the memorandum of petition. In these circumstances, the petitioners failed to prove the existence of any landlord-tenant relationship with the respondents. In Rahmatullah v. Ali Muhammad and others (1983 SCMR 1064), the Hon'ble Supreme Court considered whether, in cases where doubt arises regarding ownership of the disputed premises, the Rent Controller or Appellate Court may evict a tenant, leaving questions of title or fraud to be determined by the Civil Court. It was held that in such situations, the Rent Controller may form only a tentative opinion regarding the existence of landlord-tenant relationship, as it is not always necessary for a landlord, within the broad and extended definition of the term under the law, to prove ownership. Thus, the Rent Controller is not required to adjudicate upon disputed questions of title. Nevertheless, while the statutory definition of landlord is wide, covering persons entitled to receive rent in various capacities, even where they are not owners, it remains undeniable that, in most cases, a landlord's claim is predicated upon ownership, since the right to receive rent ordinarily flows from title in the property. This category of landlord is recognized in the very opening clause of the statutory definition, which includes "any person for the time being entitled to receive rent whether on his own account or " as a landlord. Accordingly, where a claim to land lordship is advanced based on ownership, the Rent Controller, before granting satisfaction under section 13, must be convinced that the claimant, as landlord, is indeed the owner and thus entitled to recover rent. 9. Similarly, in Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1), the Hon'ble Supreme Court granted leave to examine the question whether a person who bases his claim as landlord, under the opening part of the definition in section 2(c), upon his right to receive rent on account of ownership of the property, must first establish his title before the Rent Controller. It was observed that such a claim can only be adjudged as landlord if he succeeds in satisfying the Rent Controller regarding his title; failure to do so would inevitably
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result in a verdict against him. Even where the Rent Controller is not satisfied beyond reasonable doubt as to the claimant's title, the decision on the issue of land lordship must be rendered against such claimant. The Hon'ble Supreme Court further framed and addressed two questions: (i) whether, under the Rent Restriction Law, the Controller or the appellate court can determine the existence of landlord-tenant relationship in favour of the landlord when the strength of his case is doubtful or when the evidence produced by the tenant casts doubt upon the landlord's claim; and (ii) whether, in such circumstances, it is the tenant rather than the landlord who should be relegated to seek redress before the Civil Court. The Court held as follows: Regarding the first question it was made clear that when a person relying on the opening part of the definition of landlord in section 2(c) of the West Pakistan Urban Rent Restriction Ordinance (No. VI) of 959 bases his claim on the right to receive rent on account of the ownership of the property, he will have to "satisfy" the Rent Controller about the title. If he succeeds, he would be adjudged as landlord. If he fails to satisfy, the Rent Controller, the verdict will be against him. And further if the Rent Controller's satisfaction is not beyond reasonable doubt even then the verdict on this question will be against him. In this case obviously as discussed above the basis of respondent's claim to be adjudged as landlord is his alleged claim to receive the rent on the basis of ownership of the property. It has been found that the land underneath the building does not belong to him. It has been transferred to "the school" which belongs to the appellants. Thus, to that extent the respondent is not entitled to recover the rent and is, therefore, not the landlord. Regarding the superstructure also it is not denied that the appellants made substantial contributions to the raising of the superstructure, though their claim is that the same also belongs to them in its entirety. The respondent has made a confident challenge to this claim; but has not succeeded beyond reasonable doubt in establishing before us that he also partly owns the superstructure on account of some contribution which he might be able to establish as and when an occasion and opportunity arise. Thus, his claim to the status of being the landlord regarding the superstructure also does not go beyond the stage of a mere possibility. Hence having failed to create satisfaction, which is beyond reasonable doubt on this vital question, hell could not be adjudged as landlord. That being so no relationship of landlord and tenant having been established this appeal must succeed on this ground. No doubt the petitioners have placed on file the documents, but they could not prove the transfer of ownership in their favour in juxtaposition with the factum of existence of relationship. 10. In addition, it is a well-established principle that when a tenant raises an objection regarding the non-existence of the landlord-tenant relationship because of an alleged ownership claim founded upon a deed or Iqrar Nama, such tenant must first surrender possession of the premises before asserting his claim of ownership. However, in the present matter, the respondents have, from the very outset, never asserted ownership of the property. On the contrary, they have categorically admitted that they are tenants, though not of the present petitioners. The petitioners, in turn, have attempted to construct their case based on a title document. It is settled law that a Rent Controller is not competent to adjudicate questions of title or other complicated factual controversies of the kind alleged in the present matter. Reliance may be placed on Fariduddin Masood v. Additional District Judge. Bahawalpur (2019 SCMR 842) wherein it was held that any dispute regarding the ownership or title of the property forming the subject-matter of eviction proceedings must be determined by a court of competent jurisdiction, and that a Rent Tribunal or Rent Controller lacks jurisdiction to adjudicate upon such questions. In the instant case, therefore, the petitioners could not have maintained an application for impleadment in the eviction proceedings with a view to having their claim of ownership determined by the Rent Controller. Further reliance may be placed on Junaid Rasheed and others v. Sultan Muhammad and others
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(2000 SCMR 1525), wherein it was observed that disputes concerning title cannot be resolved within rent proceedings or appeals arising therefrom under the West Pakistan Urban Rent Restriction Ordinance, 1959. The same principle was reaffirmed in Ahmad Ali alias Ali Ahmad v. Nasar-Uddin and another (PLD 2009 Supreme Court 453). 11. Reverting to the objection raised by the petitioners regarding the alleged violation of the order of the Hon'ble Supreme Court for…
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