MUHAMMAD MUJEEB ULLAH SIDDIQUI Versus KAMALUDDIN

The case of the respondent; landlord as set tip in his ejectment application (Rent Case No.33931 of 1981) is that he was the landlord in respect of shop No.3 in house No.F‑(North)23/1, Malir Extension Colony, Karachi, and appellant Muhammad Mujeebullah Siddiqui was tenant of the respondent on a monthly rent of Rs.200 with effect from 1st October, 1970 but the appellant never paid any rent since the inception of tenancy. It was further stated by the respondent that it was agreed between the parties at the time of inception of tenancy that the appellant would pay Rs.5,(XX) as fixed deposit but instead he had paid only Rs.2,(K10 on 1‑10‑1979 and had promised to pay the balance within the next two months but he not only failed to pay this balance but also defaulted in payment of monthly rent. The rent application was filed in September,'1081. The case of the appellant as set up in his written statement was that there was no relationship of landlord and tenant between the parties, that the premises belonged to the Government and the applicant had no locus standi to file ejectment application. According to the appellant he was in possession of this plot lying adjacent to Quarter No.F‑(North)23/1, Malir Extension Colony Karachi, since 1976 and he had raised the construction himself in 197) and he had nothing to do with the above mentioned plot or with the respondent. On the evidence brought on record by the parties the learned Rent Controller came to the conclusion that the appellant was a tenant of the respondent whereupon vide judgment, dated 29‑3‑1983/30‑3‑198.3 the appellant was directed to vacate the premises. The appellant came to appeal. before this Court in First Rent Appeal No.381 of 1983 which was decided on 15‑5‑1986. It was held by this Court that it appeared that the land of the. disputed premises did not belong to the parties and it was necessary for the parties to produce someone from K.D.A. to ascertain this position and, with the consent of the learned counsel for the parties the case was remanded to the trial Court with the direction that Assistant Director Land (Malir Township; K.D.A. should be: examined to clarify the title of the land and the parties were allowed to lead further evidence if they so deemed necessary. After the remand of the case, the respondent examined Mr. Muniruddin Azhar, Assistant Director (Malir Extension Town Ship) K.D.A. and he also examined his son Iftikharul Ilaq. The appellant did not lead any further evidence after remand. After reassessing the evidence of the parties, including further evidence fed by the respondent after remand, the learned Rent Controller vide judgment, dated 7-10‑1987 again allowed the ejectment application and directed the appellant to vacate the premises and the appellant, feeling aggrieved from the said judgment, has come in appeal. Learned counsel for the parties have been hard and record has been perused.

2. So far as the ownership of the land under the disputed shop is concerned, it is sufficiently established by the evidence of A.W.5 Muniruddia Azhar, Assistant Director (Malir Extension Township) K.D.A. that the land belongs to K.D.A. and it has not been allotted so far to anyone. As a matter of fact, this factual position was conceded try both the learned counsel at the time of hearing of this appeal. The only thing now for the determination of this Court is whether the relationship of the landlord and tenant exists between the parties or not, notwithstanding the admitted position that the land on which the demised shop is constructed belongs to K.D.A. and not to any of the parties.

3. The evidence on record sufficiently establishes that Izharul Haq, son of respondent Kamaluddin, is' the allottee of Plot No.F(North)23/1, Malir Extension Colony Karachi, and the respondent, alongwith his sons including his son Izharul Haq, lives in the house constructed on. the plot and the disputed shop is constructed ran the land adjacent to the plot belonging to Izharul Iiaq, son of the respondent. The, respondent in his affidavit states that he constructed three shops on the land lying adjacent to Plot No.F(North)23/,1 and rented out one of the three shops to the appellant. A.W.2 Abdul Sattar is the mason who had constructed the shop and he states that respondent Kamaluddin hart entrusted to him the construction of three shops on land adjacent to the abovenoted plot and that he had constructed all the three shops for the respondent. He further stated that in September, 1979 appellant Muhammad Mujeebullah Siddiqui approached respondent Kamaluddin, in the presence of the witness, for obtaining one of the three shops on rent and the transaction was settled before him and the tenancy was to commence from 1st October, 1979 on a monthly rent of Rs.200. He also testified that in his presence appellant Muhammad Mujeebullah Siddiqui had paid Rs.2.0lX) to, Kamaluddin. In cross‑examination he denied that the appellant was in occupation of the shop as owner and affirmed that he was in occupation as a tenant. He stated that there was no written agreement between him and the respondent about the construction of the shop. A.W.3 Ali Azhar is the neighbourer of the parties and lives on Plot No.22/5. He said he knew both the parties and that respondent Kamaluddin was owner of all the three shops constructed by him in House No.F‑(North)23/1, that appellant had taken on rent the demised shop at Rs.200 per month after paying a fixed deposit of Rs.2,000. In cross‑examination he deposed that he had not seen any document in respect of ownership of the demised shop but he knew that house of the respondent was adjacent to it. He further deposed that all the shops were unauthorised construction. A.W.4 Abdul Jabbar also deposes to' the same effect and in his cross‑examination he repelled the suggestion of learned counsel for the appellant that it was appellant who had constructed the shop at an investment of Rs.10,000 on its construction. A.W.5, Assistant Director (Malir Extension Township) who was examined after the remand of the case, stated that Malir Extension Colony fell in his jurisdiction and that Quarter No.F‑(North)23/1 was allotted by K.D.A. to Izharul Haq son of Kamaluddin and he produced the original lease deed executed between Izharul Haq and K.D.A. which was returned to him after its copy was retained on record as Exh.1. The Assistant Director further stated that he had made site inspection of the area and had seen the shops constructed outside Quarter No.23/1. He further, stated that all the three shops were constructed by respondent Kamaluddin who had also applied for the regularisation of the land beneath those shops. He also stated that there was no other application on the record of K.D.A. for the regularisation/allotment of the land in front of Quarter No.23/1 (over which the disputed shop alongwith two other shops is located) except the application of respondent Kamaluddin and he further clarified that even this application had not been decided till the day when he was deposing in Court (I4‑3‑1987). In cross‑examination he stated that there was no master plan of Quarters or shops in the area. He was shown Exh.B/I which is a photostat copy of an application, dated 11‑1‑1981 allegedly given by appellant Muhammad Mujeebullah Siddiqui to the Administrative Officer. K.D.A. and deposed that this application did not pertain to the disputed shop but that it was in respect of allotment of some plot in Sabzi Market Malir Extension Colony. It maybe noted that this Exh.B./1 is not an authentic document and it does not bear any endorsement from any official of K.D.A. in token of the, receipt of its original by K.D.A. The respondent did not bring on record any evidence with the exception of his own affidavit. He had, no doubt. filed the affidavits‑in‑evidence of two persons Syed Hafizur Rehman and Rukunuddin but gave them up and did not produce them in Court for cross‑examination. In his own affidavit‑in‑evidence, apart from reiterating what he had earlier stated in his written statement, he also stated that he had loaned Rs.2,000 to the respondent in 1979 and when he asked the respondent to repay the loan he got annoyed and filed the ejectment application on absolutely false grounds. It may, be noted that' this averment about giving the loan of Rs.2,000 is beyond the pleadings of the appellant and he had not stated in his written statement anything about it. As such this averment of the appellant rather goes to support the view of the respondent that he had received Rs.2,000 from the appellant as fixed deposit at the time of the commencement of tenancy.

4. After going through the evidence narrated above and the judgment of the learned trial Court I am of the view that respondent has sufficiently proved his status as the landlord of the shop in dispute. The respondent is supported r by A.W.2 Abdul Sattar who is mason by profession and who constructed the shop, A.W.3 Ali Asghar who is a resident of the locality and who supports the version of the respondent and A.W.4 Abdul Jabbar likewise supports the respondent. The evidence of all these witnesses has not been in. any way shattered in cross‑examination. All of them are independent witnesses and residents of the same locality and there is no reason to disbelieve them. The Court cannot fail to take judicial notice of the fact that allottees of Government quarters in the various colonies usually encroach upon the land adjacent to said quarters and raise unauthorised construction thereon. The shop in dispute, alongwith two other shops, is constructed on the land adjacent to Quarter No.F‑(North)23/1 of which Izharul Haq, son of the respondent, is the allottee. Under such circumstances, no one can raise construction on this land except the allottee of Quarter No.F‑(North)23/1 or any of his near relatives with his permission. In this particular case, the respondent, father of the allottee, can naturally be expected to have raised this construction. The appellant could not produce even a single witness in support of his case. He could not even prove that he had ever made any application for the allotment of this land to K.D.A. No doubt, the respondent is not the owner of the land which still vests in the K.D.A. but in view of the fact that it was encroached upon and constructed upon by the respondent who after construction of the shops, let one of them to the appellant, the relationship of landlord and tenant stood sufficiently established. A landlord need not necessarily be the lawful owner of the premises. If a person is in effective possession of certain premises and by mutual agreement he rents them out to another person, such another person becomes the tenant of the former and the relationship of the landlord and tenant comes into being between the two notwithstanding the defect in the title of the former in the property in question. This view gets support from the judgment of this Court in the case of Mst. Safia Begum v. Aijaz Hussain 1989 A L D 486 in which it is held that the landlord may be owner as well as one who is not a owner. In the same judgment it was further held that a person has no right to file ejectment application merely on the ground of his status as an owner unless he is also the landlord of the person occupying the said premises. Learned counsel for the appellant had also relied on an unreported judgment of this Court in 1st Civil Appeal No.33 of 1987 decided on 31‑1‑1991 and my attention was drawn to the following passage in it:‑‑

"On the other hand, if on a plea from any side, upon remand it arises that the suit would be barred under section 12(2) of the Code of Civil Procedure, there would be no impediment in entertaining an appropriate application, urging that ground specifically taken, for the Court to see whether any action in terms of Order 7, Rule 11 was called for."

I fail to see the relevancy of this judgment in the present case. Firstly, this judgment is in a Civil Appeal and not in a Rent Case and, secondly, the point at issue in that appeal was quite different from the points at issue in the present appeal. As such so far as the ejectment application and this appeal are concerned, it is material as to whether the respondent is or is not the owner of the land over which the disputed shop is constructed. Since it has sufficiently been established that the shop in dispute was constructed by the respondent and given by him on rent to the appellant, the relationship of landlord and tenant has come into existence between the two. Since the appellant has admittedly not paid any rent to the respondent from the very inception of tenancy he in liable to eviction on the ground of default.

5. In view of what has been stated above I find no merit in this appeal and the same is dismissed. The appellant is, however, given two months' tin from today to deliver possession to the respondent. The parties are left to bear their own costs.

AA./M‑1478/K Appeal dismissed