Dr.ANSAR AHMED Versus AYUB ZAIDI
1. This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as an Ordinance) has been filed against the order dated 15th December, 1984 of XIIth Senior Civil Judge/ASJ and Rent Controller, Karachi whereby he dismissed the rent application of appellant.
2. A Rent Case No.1303 of 1983 was filed by the appellant Dr.Ansar' Ahmad under section 15(ii) of the Sind Rented Premises Ordinance, 1979 on the ground of default in payment of rent, from March, 1982 to February, 1983. The rate of rent as claimed in the rent application as Rs.200 per month payable before 15th of every calendar month. The respondent in his written statement stated that the abovesaid quarter was purchased by him in 1970 and paid Rs.20,000 towards the consideration hence he is living in the said quarter as an owner and proprietor, therefore, the question of payment of rent does not arise. It is also stated that respondent is in possession of the disputed quarter for more than 12 years and under the law itself he i5 entitled to have the benefit of adverse possession which is legalised under the law.
3. Appellant has filed his affidavit‑in‑evidence in which the same facts are given as mentioned in the rent application. He has stated that allegation of the respondent that he purchased the quarter for Rs.20,000 is false and frivolous and all the documents regarding the ownership of premises have been filed in Suit No.1202 of 1983. He has stated that in the written statement the respondent alleged that he purchased quarter in 1970 while a notice was sent by him through his Advocate, he has mentioned that quarter was purchased in the year 1971. which falsifies his own statement. He has stated that appellant had been issuing rent receipts to the respondent whenever he used to pay the rent. Appellant examined one Wali Muhammad as Ex.2. He has stated that one Amjad Ali Khan who was known to him sold the quarter No.96, Qaidabad, Landhi, Karachi to the appellant DrAnsar Ahmed vide agreement dated 9‑8‑1970, in his presence and he was the attesting witness in the said agreement. Agreement A‑27 bears his signature. He has stated that appellant paid Rs.12,000 to Amjad Ali in his presence. Kabiruddin in his evidence supported the version given by Wali Muhammad and stated that he was also the attesting witness of agreement A‑27 which bears his signature. He has stated that one Amjad Ali Khan who was known to him sold the quarter No.96, Qaidabad, Landhi, Karachi to the appellant Dr.Ansar Ahmed vide agreement dated 9‑8‑1970 in his presence and he was the attesting witness in the sad agreement. Agreement A‑27 bears his signature. He has stated that appellant paid Rs.12,000 to Amjad Ali in his presence. Kabiruddin in his evidence supported the version given by Wali Muhammad and stated that he was also the attesting witness of agreement A‑27 which bears his signature. He has stated that one Amjad Ali Khan sold quarter No.96, Qaidabad, Landhi, Karachi to the appellant vide agreement dated 9‑8‑1970 in his presence.
4. Respondent Ayub Zaidi in his evidence stated that appellant is not the owner of the quarter No.96, Qaidabad, Landhi Karachi and it was not rented to" him. He has stated that he purchased the said premises in 1979 and paid Rs.20,000 and is owner of the quarter, therefore, he is not liable to pay the rent and that disputed quarter is in his possession for more than 12 years which proves the adverse possession legalised under the law and there is no tenancy agreement with the appellant.
5. The Rent Controller framed following one issue:‑
6. "Whether the relationship of the landlord and tenant exists between the parties"?
7. This issue has been decided against the appellant, therefore, he has filed this appeal.
8. I have heard Mr.Ali Muhammad Memon, Advocate for the appellant. It is contended by the learned counsel that respondent is a tenant of a quarter which appellant purchased from Amjad Ali but subsequently respondent wanted to sell the quarter, therefore, the appellant has filed suit for declaration and injunction which has been decided in favour of the appellant and respondent has filed appeal. It is argued that appellant never sold quarter to the respondent.
9. Mr.M.Anisur Rehman appearing for the respondent submitted that this quarter is a Government property, therefore, appellant has no title over it. It is argued that by negotiation the respondent has purchased the quarter from appellant to the extent of his possession. It is contended that title of the property is yet to be determined by the Civil Court, therefore, rent case is not maintainable.
10. The specific plea has been taken by the respondent that he purchased the quarter in dispute from the appellant on consideration of Rs.20,000 but no documentary evidence has been provided to this nor single witness has been examined in support of the case. In cross‑examination respondent Ayub Zaidi has stated that appellant is known to him since 1954 and he gave possession of the quarter on or about November/December, 1970 and hired the case premises temporarily only for 10 days thereafter he purchased it and no agreement was written and it was oral transaction. This agreement took place on 15th December, 1970. He has stated that no receipts were issued by the appellant for the amount which he paid' in two instalments of Rs.l0,Od0 each. He has stated it may be that Dr.Ansar Ahmed got the connection of water in September, 1982 and also paid the amount vide challan Ex.26 being connection charges to Landhi Municipal Committee on 22‑9-1972.
11. The appellant. himself and two other witnesses stated on oath, appellant purchased the property from one Amjad Ali Khan. He has also produced photo copy of last sale agreement duly attested by the witnesses who were examined. .Both the witnesses Wali Mahammad and Kabiruddin supported his case.
12. Appellant has also produced alongwith the rent application counterfoil of rent receipt showing that the respondent paid rent upto 15‑3‑1982 at the rate of rent Rs.200 permonth. He also produced rent receipts of previous owner Amjad Ali Khan showing, that original owner‑was Amjad Ali Khan. The only question at this stage is whether appellant is a person entitled to receive the rent according to the definition of Section 2(f) of the Sind Rented Premises Ordinance, 1979:‑
13. "2(f) "landlord means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises."
14. The respondent has failed to prove from any documentary evidence or oral evidence that .he was not a tenant.. On the other hand in cross‑examination he stated that he took possession from appellant temporarily for 10 days, thereafter, he purchased the same. It is clear that appellant had the possession which he handed over to respondent.
15. The only contention of respondent is that he purchased the same and t matter is adjudicated in the Civil Court. On the other hand it was contended that suit has been decided in favour of the appellant. However, title is to be determined by the Civil Court and at this stage I am of the view that ample I evidence has been produced by the appellant that initially this quarter was temporarily, as admitted by the respondent, given on hire to respondent as such their exists relationship and he continues to be the tenant till the matter is finally decided by the Civil Court.
16. In these circumstances I allow the appeal and set aside the order of Rent Controller with the result that respondent shall have to vacate the quarter and hand over possession to, the appellant. In view of this long litigation between the parties, I allow six months' time to the respondent to hand over the possession to the appellant and respondent to pay the rent during this period on or before every 10th of succeeding month at the rate of Rs.200 per month. In default liable to be I evicted.
17. M.Y.H./A‑348/K Appeal allowed.