MUHAMMAD NISAR vs IZHAR AHMED SHAIKH and others

ORDER

' SARMAD JALAL OSMANY, J.---This Appeal, by leave of the Court, impugns the judgment of the learned Sindh High Court in Constitution Petition No,S-2406 of 2010 filed by the appellant whereby same was dismissed.

2. Briefly stated the facts of the matter are that one Jamaluddin, father of the respondent No,1 was the owner of the demised premises which were allegedly purchased by the petitioner in 2004.

Since the sale transaction had not been completed the appellant had filed a Civil Suit for specific performance etc. Of said agreement to sell which, is still pending before the concerned Senior Civil Judge. In the meanwhile the respondent No,1 filed a rent application against the petitioner on the ground of default before the concerned Rent Controller which was allowed. The Rent Appeal filed by the appellant was dismissed and as stated above so also the Constitution Petition.

3. Ch. Abdul Rasheed, learned Advocate Supreme Court appearing for the appellant has submitted that all the learned lower forums below have fallen into error while holding that the appellant was a tenant of the premises in question since per the agreement to sell between the appellant and respondent No, l's father viz. Jamaluddin dated 30-11-2004 the appellant has been put into possession on the same date. Consequently there could not be any relationship of landlord and tenant between the appellant and the respondent No,1 who is one of the legal heirs of late Jamaluddin.

4. To this submission Mr.Khaleeq Ahmed, learned Advocate Supreme Court appearing for the respondent No,1 has submitted that before the learned Rent Controller the petitioner had admitted in his Written Statement that the premises were rented to Nabi Bux Khilji Pathan who was the father of the petitioner and consequently after the demise of said Nabi Bux the tenancy devolved on his legal heirs including the appellant. Hence it cannot be said that there is no relationship of landlord and tenant between the parties. Consequently the learned lower forums have correctly held that there is such relationship and admittedly the appellant was a defaulter as he had not paid rent to the respondent No,1 who had purchased the property from his father and hence he was liable for ejection. In support of his submissions learned Advocate Supreme Court has relied upon Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeeman Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafiq v. Messrs Habib Bank Ltd. (1994 SCM R 1012) and Mst. Bore Bibi v.

Abdul Qadir (1996 SCM R 877).

5. We have heard both the learned Advocate Supreme Court and perused the record along with their assistance.

6. It would be seen that in the affidavit in evidence filed by the appellant before the learned Rent Controller, the father of the appellant viz. Nabi Bux was stated to be the tenant of the father of respondent No,

1. In para-8 therefore it has been particularly averred that after the demise of Nabi Bux the premises were in the possession of his family members other than the appellant when it was purchased by him. In our opinion such averment cannot displace the law itself since per section 2(j) of the Sindh Rented Premises Ordinance, 1979 each legal heir of the tenant after his demise becomes a tenant and consequently the learned lower forums below have correctly held that there was a relationship of landlord and tenant between the parties. Per settled law in such circumstances when the tenant puts up a plea in an ejectment application that he had purchased the property then he has to file a suit for his remedies (which has already been done) and vacate the premises and thereafter if he succeeds he would be entitled to take possession of the premises again. In this regard reference can be made to the cases cited at the bar by the learned Advocate Supreme Court appearing for the respondents.

7. Consequently we do not find any force in this appeal and hence would not like to interfere in the concurrent findings of the learned lower forums below. The same is accordingly dismissed.