SAIYEDA KHATOON Versus FIDA MUHAMMAD

This First Rent Appeal is directed against the order dated 18‑5‑1987, passed by the learned 1st Senior Civil Judge and Rent Controller (West), Karachi, whereby, he dismissed the rent application of the appellant on the ground, that there existed no relationship of tenancy between the parties.

2. ‑ The brief facts of the case are, that the appellants filed Rent Case No. 141 of 1985 in the Court of learned Rent Controller, seeking eviction of the respondent on the ground, that he had failed to pay the rent from 1‑7‑1981 to 31 7‑1984. It was alleged, that the appellants had inducted the respondent as tenant. The respondent resisted the rent case denying the existence of any relationship of landlord and tenant between the parties and claimed, that the plot belonged to his father. The learned Rent Controller framed a preliminary issue as to whether there exists relationship of tenancy between the parties?

3. The appellants had examined their attorney Massod Alam, and one Malik Iqbal, whereas, respondent examined himself. The learned Rent Controller was of the opinion, that affidavits filed in evidence by the appellant s witnesses did not disclose that what they stated therein was true to their knowledge, but stated, that whatever they stated was true to the best of their knowledge, and belief, and therefore, no reliance could be placed on such affidavits. He was of the opinion, that the appellants had failed to produce any evidence to show the existence of relationship of landlord and tenant between the parties.

4. I have gone through the evidence on record, and also heard the learned counsel for the appellants, and I am of the opinion, that there is no satisfactory evidence to show the existence of relationship of landlord and tenant between the parties.

5. Admittedly, the tenancy was not created by any written agreement and no counterfoil of any receipt was produced to show any payment of rent by the. respondent. In fact, there is no documentary evidence in support of the relationship of landlord and tenant between the parties. It leaves us with oral evidence of the above named two witnesses of the appellants.

6. The attorney P.W. Syed Masood Alam states, that he inducted the respondent as tenant and he used to collect rent from him. He has produced photo copy of the power of attorney which shows, that he was given power of attorney by the appellants in 1983, though he claims to have inducted the respondent as tenant somewhere in 1972. There is no evidence on record to show, that he had such power in 1972. Admittedly, both, the appellants as well as their attorney reside in Lahore. According to other witness Malik lqbal, examined by the appellant, whenever this attorney used to come to Karachi, he used to take this witness with himself for the purpose of collection of rent. He, however, admits, that the attorney had, in his presence, collected rent only for the four times. In other words, the attorney collected the rent only four times during the period of 1972 to 1981, which does not appeal to reason.

7. Both the parties claim their right on the basis of some writings under I which one Saleh Shah is said to have sold 400 square yards of land to each of them. The area admittedly is not surveyed. The letter written by Saleh Shah, selling the land to the appellants, is of the year 1956, whereas the document selling 400 sq. yards. of land to the father of the respondent is of the year of 1961. This Saleh Shah as it appears from these writings, purports to have entered into these deals as general power of attorney, nominated successor of Syed Umed Ali, who claims to be the owner and landlord of entire village Shershah. These writings by which certain property was transferred to the appellants as well as to the father E of the respondent are not registered. Therefore, both the writings have equal evidentiary value. In fact, original documents have not been produced by either party, but photo copies have been produced. There appears to be dispute over the ownership of the plot in dispute, and as such proper forum to decide and determine such dispute would be the Civil Court, and not Rent Controller, as the appellants have failed to prove existence of relationship of landlord and tenant between the parties.

For the aforesaid reasons, I uphold the impugned order of the learned Rent Controller, and dismiss the appeal, with no orders as to costs.

A.A./S‑237/K

Appeal dismissed.