Syed JAMAL Versus ABDULLAH MIAN

ORDER

1. This first rent appeal is directed against impugned order dated 6‑1‑1988 of III Senior Civil Judge and Rent Controller (South) Karachi, whereby ejectment application has been dismissed. This finding is assailed on the ground that the landlord had produced sufficient evidence of the nature to warrant a finding of eviction on the ground of default and subletting.

2. Syed Jamal as a landlord filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for eviction of tenant Abdullah Mian on 4‑5‑1978 on the grounds that he had failed to pay rent for ten months at the rate of Rs.100 p.m. and further had locked the premises for over four months. Subsequently he filed amended memo. of application and included Syed Abdul Aziz as opponent No.2 and claimed that this had been done under the orders of the Court otherwise Syed Abdul Aziz was neither in possession of the property nor was the tenant. In support of claim by the landlord with regard to the ownership of the premises in question, he has produced photostat copy of Lease Deed from KMC. In the written statement tenant Abdullah Mian challenged the jurisdiction of the learned Rent Controller on the ground that there was no relationship of landlord and tenant between the parties. It was further stated in the written statement that opponent Not Syed Abdul Aziz was the owner of the disputed premises and tenant himself was in occupation of two rooms as licensee of Syed Abdul Aziz since 1970 and likewise landlord was also licensee of Syed Abdul Aziz in respect of two moms and remaining portion of the property was Occupied by Mst. Shareefan Bai, grandmother of Syed Abdul Aza. In 1978 landlord forged, documents and clamed ownership on the basis of lease deed which was supposed to have been issued by KMC in his favour. Tenant Abdullah Mian denied that he was tenant of the landlord as claimed by him. Likewise, Syed Abdul Aziz in his written statement supported the claim of the tenant and further stated that he has filed Suit No.2728 of 1979 against landlord for cancellation of lease deed obtained by him by misrepresentation of facts.

3. In the evidence before the Rent Controller Syed Jamal examined himself as landlord and stated in his affidavit of evidence that he was owner of the building which he had purchased from KMC through lease deed No.3657 dated 9‑7‑1974. In cross‑examination he has admitted that before he became owner, he lived in the same building which he had purchased from Syed Abdul Aziz. Subsequently, he got it transferred in the record of Excise and Taxation and then obtained lease from KMC. He has admitted that at the time of purchase Syed Abdul Aziz was not present at Karachi and he purchased the property from mother of Syed Abdul Aziz. Papers relating to transfer were already ready with Mst. Mariam Bai mother of Abdul Aziz. In cross‑examination Syed Jamal further stated that he purchased the disputed property not from Syed Abdul Aziz but from his mother for consideration of Rs.9,000 and he had not taken any receipt from her for payment of money. Syed Abdul Aziz was not present at the time of transaction. He has produced photostat copy of document of sale as ExA‑2. This document purports to have been signed by Abdul Aziz as one party and Syed Jamal as another. There is no mention in it of Mst. Marian Bai mother of Abdul Aziz and payment to her. It is further stated by Jamal Mian that he took this document to the office of Excise and Taxation where transfer was effected in his name and he obtained P.T.I. on the basis of which K.M.C. issued lease deed photostat copy of which is produced as ExA. It is admitted in unequivocal terms by Jamal Mian in his cross‑examination that Abdul Aziz, owner of the plot was not present in Karachi at the time of transaction and had not signed Ex.A/2 in his presence. He has also admitted that suit has been filed and is pending for cancellation of agreement and lease deed. It is further admitted by him that in the suit, the Court has ordered that possession of Abdullah Mian and Abdul Razaq on behalf of Abdul Aziz be not disturbed by him and he filed an appeal against that order in the District Court which has been dismissed.

4. It was in the circumstances stated above that initially ejectment application was filed without impleading Syed Abdul Aziz. In any case, landlord Jamal Mian has not been able to convince the Rent Controller that Abdullah Mian is his tenant. Except the document mentioned above, no other witness has been examined, and no other document has been produced to show that Abdullah Mian was ever in the past tenant of Jamal Mian. Stand taken by Abdullah Mian is' that he has remained licensee of Abdul Aziz and Abdul Aziz has fully supported the claim of Abdullah Mian. Landlord Jamal Mian has failed to produce any rent receipt to prove his claim that Abdullah Mian had remained his tenant in the disputed premises. Claim of Jamal Mian to be owner of disputed premises in the circumstances stated above is not free from doubt. Both Abdutlab Mian and Abdul Aziz have filed their‑affidavits in evidence and they have been subjected to cross‑examination but nothing fruitful has come out in favour of claim of Jamal. Suggestions were made to Abdullah Mian that he was paying rent to Jamal Mian but he has denied this suggestion. It is admitted by Abdullah Mian in cross- examination that he, Jamal Mian and Abdul Aziz are related to each other. Abdul Razaq filed affidavit in evidence on behalf of Abdul Aziz and he produce General Power of Attorney. He stated in his affidavit that in May 1978 Jamal Mia attempted to dispossess Abdullah Mian as such law enforcing agencies were informed and Jamal Mean after realising his mistake restored possession to Abdullah Mian and copy of such agreement in writing has also been produced. 11 is further stated by him that after the death of Mst. Shareefan Bai, Jamal Mian broke open the lock of the premises, took over the possession and stole the valuable articles and in that connection criminal case was filed in the Court of competent jurisdiction which was pending. In cross‑examination Abdul Razaq has stated that Jamal Mian is cousin of his mother and Abdullah Mian is his brother -in‑law. Abdul Azaz is his maternal uncle. Jamal Mian forged certain documents to claim ownership of the disputed property. He has denied the suggestion that Abuullah Mian was tenant of Jamal Mean at the rate of Rs.100 p.m.

5. In the circumstances and for the facts and reasons mentioned above, the finding of the learned Rent Controller in the impugned order that there is no relationship of landlord and tenant between the parties cannot be taken exception to. Landlord has failed to satisfy the Court that Abdullah Mian is his tenant. He has failed to produce any convincing evidence in support of that claim. In the result, this appeal is dismissed in limine.

6. M.Y.H/J‑45/K Appeal dismissed.