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-- O: KLI, r. 27 and S. 151-West Pakistan Urban Rent Restriction Ordinance (VI .of 1959), Ss. 13 & 15 - Additional evidence Second appeal-Landlord's application to file original sale-deed as additional evidence in proof of ownership of tenanted property, held, cannot be allowed in second appeal.-[Evidence],

---- Ss. 13 & 15-Second appeal-Order of First Appellate Court remanding case to Rent Controller with .direction to frame additional issues (on maintenance .of application and jurisdiction of Court) having not been appealed against, held, cannot be set aside in second appeal.

-- Ss. 13 & 15-Evidence Act (I of 1872), S. 44-Ejectment-Question of ownership-Presumption attached to record of rights-Landlord producing record of right instead of sale-deed to prove ownership- Previous owner in her examination-in-chief not stating that. she had not sold property in favour of appellant but in cross-examina tion saying that she had mortgaged property with landlord and had not. sold it-Both Rent Controller and First Appellate Court . pro ceeding on wrong basis in holding that because of fact that landlord had not, produced sale-deed presumption in his favour on account of production of certified copy of extract from record-of-rights stood rebutted because of statement of previous owner in her cross- examination-initial presumption attached to extract of record-of rights, held, could not be dislodged by stray statement of previous owner in cross-examination when tenant not raising any such plea in written statement and former owner not examined to prove such plea-Courts below misdirecting themselves on this point-Order of Courts below set aside and case remanded to Rent Controller for decision on merits.

Mst. Nur Jehan Begum v. Ehsanullah Khan and .others P L D 1960 Lah. 181 rel.

Wahid Bux Baloch for Appellant.

Abdul Ghani Shaikh for Respondent..

Date of hearing : 25th February, 1981.

This appeal is directed against the order dated 31st July, 1978 and 13th January, 1979 passed by the learned Senior Civil Judge and Rent Controller, Jacobabad, and District Judge, Jacobabad respectively in Rent Case No. 11/76 and 1st Rent Appeal No. 13/78 respectively.

The brief facts leading to the filing of the above second appeal are that the present appellant filed the aforesaid rent application on 29th January, 1976 for ejectment on 29th January, 1976 for ejectment on three grounds namely, default, personal requirement, and damage caused to the property. The above application was resisted by the respondent and inter alia it was pleaded that no notice under section 13-A of the late West Pakistan Urban Rent Restriction Ordinance, 1959 was served on him. The learned Rent Controller framed as. many as 6 issues.

The issues relating to the service of notice under section 13-A,, in respect of the default and pertaining to the personal requirement -were answered in the affirmative, whereas the issue relating to causing of damage to the property was not pressed by the present appellant. In view of the above findings, the learned Rent Controller by his order dated 31st January, 1977 allowed the above ejectment application. The respondent being aggrieved by the above order filed First Rent Appeal No, 9/77, which was allowed by the learned Additional District Judge, Jacobabad by an order dated 16th May, 1977 and the case was remanded with the direction to the learned Rent Controller to frame two Additional issues namely, (l) whether the rent application is maintainable in law, and (2) whether the Court has jurisdiction to bear the case under the West Pakistan Urban Rent Restriction Ordinance, 1959. The learned Additional District Judge was prompted to remand the above case in view of the statement made by Mst. Hayatan, the previous owner before the Rent Controller in the cross-examination to the effect that she had not sold the property to the appellant, but in fact-had mortgaged it to him. The appel lant instead of- filing an appeal against the above order of the learned Additional District Judge dated 16th May, 1977 appeared before the learned Rent Controller. It seems. that the parties did not lead any further evidence on the above two additional new issues. After hearing the learned counsel for the parties, the learned Rent Controller dismissed the appellant's application on the ground that he had failed to produce the sale-deed in his favour. The appellant being aggrieved by the above dismissal order filed First Rent Appeal No. 13/78, which was also dismiss ed; by the aforesaid order dated 13th January, 1979. The appellant being aggrieved by the above two orders has filed the present second appeal.

2. (a) In support of the appeal Mr. Wabid Bux Baloch, learned counsel for the appellant has argued that in view of the fact that the appellant had produced a certified copy of an extract from the record of rights Exh. 12 showing him as the owner by purchase through a sale-deed dated 11th September, 1973, the presumption was in favour of the appellant that he was the owner and that it was for the respondent to produce reliable evidence to rebut the above presumption. Reliance has been placed on the case of Mst. Nur Jehan Begum v. Ehsanullah Khan and others (P L D 1960 Lah. 181). On the other hand, it has been urged by Mr. Abdul Ghani Shaikh learned counsel for the respondent that since the previous owner had denied- the factum of sale in her cross-examination it was for the appellant to produce the sale-deed in order to show that in fact he had purchased the property.

It may be pertinent to observe that the respondent did not raise any plea in his written statement before the learned Rent Controller to the effect that the appellant had not purchased the property from the previous owner Mst. Hayatan. She was examined by the respon dent. In her examination-in-chief she did not utter a single word to the effect that she had not sold the property in favour of the appellant. However, in her cross-examination, in reply to a question put by the then learned counsel for the appellant, she came out with the averment that she bad in fact mortgaged the property with the appellant and had not sold to him it. The appellant has also filed the original sale-deed in this appeal alongwith an application under Order XLI, rule 27(1) read with section 151, C. P. C. In my view it will not be proper for me to take additional evidence in the second appeal.

(b) Since the appellant had not filed any appeal against the aforesaid order of the learned Additional District Judge dated 16tb May, 1977 passed in First Rent Appeal No. 9/77 referred to herein. above in para. 1 remanding the case .and directing the learned Rent B Controller to frame the above two Additional issues, I cannot, in this second appeal, set. aside the above order. However, it may be observed that the learned Rent Controller as well as the learned District Judge have proceeded on wrong basis inasmuch as in holding that because of the fact that the appellant had not produced the sale-deed, the presumption in favour of .the -appellant .on account of the production of the certified copy of the extract from the record of the rights stood rebutted because of Mst. Hayatan's statement in her cross-exa mination. It may again be observed that the respondent had not raised any such plea in this written statement nor Mst. Hayatan was examined in order to prove any such plea inasmuch as she did not utter a single word to that effect in her examination-in-chief. In this view of the matter the initial presumption which was attached to the aforesaid extract from the record of rights would not have been dislodged by stray statement , of Mst. Hayatan in the cross-examination. The case relied upon by Mr. Wahid Bux Baloch supports his contention. In the above case it. was held by a learned single judge of the Lahore High Court that to terms record of rights connotes that these records are something more than mere-record, of possession and that the record of rights are not instruments of title, but they are presumptive pieces of evidence to prove the persons- title by virtue of section 44 of the Evidence Act. .

3. Since both the Courts have misdirected themselves on the above point, I allow the appeal and set aside the two orders under appeal and remand the case to the learned Rent Controller- with the direction to re-hear the case are to decide all the issues on merits. In case the parties will to produce any additional evidence in support of the aforesaid two additional issues framed, they will be permitted to do so. The learned Rent Controller shall decide the case within 6 months from the date of the receipt of the intimation of this order. There will be no order as to costs.

Mr. Wahid Bux Baloch requests that the original sale-deed pro duced by the appellant through the aforesaid application under Order XLI, rule 27 may be returned to him. t accordingly order that above sale-deed shall be returned to the learned counsel for the appellant, by the office, after obtaining his signature on the file.

M. Y. H. Appeal allowed.

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