MOHAMMAD Versus ABDUR REHMAN

1. The appellant brought in a suit against the present respondents claiming that Room No. 14 of property known as Muhammad Visram Building situated at Plot No. 421, Garden East, had been unauthorisedly occupied by the respondent after the death of the regular tenant of the room Mst. Bacbi Bai, in August 1959. He, therefore, prayed for ejectment of the respondent from the premises and for mesne profits for three years preceding the filing of the suit.

2. The respondent contended that he was the son of the daughter of deceased Bachi Bai and, therefore, was her heir. On this ground he claimed that he was a tenant of the premises in dispute as defined in section 2(8) of the Karachi Rent Restriction Act, 1953. Other pleas were also taken. The learned trial Judge came to the conclusion that the respondent was a tenant. Therefore, the suit was dismissed, being not maintainable. The appeal preferred in the District Court was also dismissed where again findings about the relationship between the parties, as arrived at by the trial Judge, were affirmed.

3. The point agitated before this Court is the same L e. if respondent Abdul Rehman is tenant in terms of section 2(8) of the Karachi Rent Restriction Act, 1953. The learned counsel for the appellant has contended that he was not an heir of Mst. Bachi Bai because his mother Mst. Puri Bai had pre-deceased Mst. Bachi Bai. In 1959. when the Muslim Family Laws Ordinance, 1961, which by its section 4 conferred rights of inheritance on the children of a pre-deceased son or daughter were not enforced, Abdul Rehman could not claim himself to be the heir of Mgt. Bachi Bai. The learned counsel for the respondent has relied upon authority contained in the case of M. M. Isphahani v. Muhammad Sultan (P L D 1961 S C 76) where it has been held that the right of tenancy passes on to the heirs of a deceased tenant. In this connection, be also referred to the judgment of the Karachi Bench of the West Pakistan High Court in the same case contained in P L D 1960 Kar. 13 2 and the case of Goripal v. Kunjalal Saha (P L D 1960 Dacca 355). So far as the provisions of section 2(8) of the Karachi Rent Restriction Act, 1953 are concerned the dictum contained in these authorities is -well settled that the tenancy of a tenant always passes on to the heirs of the tenant after his death. But when Abdul Rehman claims to be the tenant under this provision of law being 'a person . . . . . . . deriving title under the tenant', the onus was heavily upon him to prove that he was the heir of the deceased. The learned counsel for the respondent concedes that the legal position as regards inheritance in 1959, when original tenant Bachi Bai died, was that Abdul Rehman could not inherit her property. He bas relied upon the statement of D. W. Sultan, a brother of respondent Abdul Rehman, wherein the witness has stated that Mst. Puri Bai was the only child of Mst. Bachi Bai. Having admitted that Abdul Rehman respondent is a distant kindered, and neither a sharer nor residuary, this statement of Sultan does not carry the case of the respondent anywhere. There could be other residuaries such as brothers of their children, of Mst. Bachi Bai who could exclude the respondent and then succeed to her estate. No evidence has been brought on record by the respondent to indicate that Mst. Bachi Bai was not succeeded by any sharer or residuaries.

4. Another important factor is that Abdul Rehman never resided in the room in dispute. At the time of the death of Mst. Bachi Bai he came, according to the averments in the plaint, and locked the room. In his own statement he has stated in his re-examination that he has now shifted to Karimabad from the building known as Agha Khan Chal. This shows that he never occupied the room in dispute, which fact indicates his mala fide.

5. Having failed to establish that he is the person deriving title under the deceased tenant he could be nothing but a trespasser. Under these circumstances the appeal is accepted with costs and it is directed that the appellant be put in possession of the disputed property.

6. S. Q. ? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.