WAJIDA BEGUM Versus ANWARUL HAQ

1. The appellant on 5‑1‑1988 filed rent case against the respondent on the ground of default in payment of rent from 1‑9‑1987. It was alleged that the respondent was appallant's tenant in respect of a flat in the building known as Wajidah Manzil, situated on Plot No.B‑129, Block N, North Nazimabad, Karachi at monthly rent of Rs.1,100. The charges with regard to electricity and Sui gas being directly payable to the concerned agencies.

2. The respondent in his written statement denied the relationship of landlord and tenant and staled that he had paid rent till December, 1987 to the attorney of Dr. Muhammad Mustaquccm, who is his landlord, through his attroney.

3. The appellant filed her own affidavit‑in‑evidence and so also the affidavit‑in‑evidence of two witnesses. The respondent filed his affidavit‑in evidence and also of one Noorullah Farooq.

4. The Rent Controller dismissed the rent case having found that there existed no relationship of landlord and tenant between the parties.

5. I have heard Mr. Syed Ali Ahmad Tariq, Advocate for the appellant and Mr. Noor Muhammad Khan, Advocate for the respondent.

6. It is contended by the learned counsel for the appellant that the affidavit‑in‑evidence of the appellant and the documents tiled therewith establish the ownership of the appellant. According to the appellant the property in question was acquired by her from her husband Dr. Muhammad Mustaqueem, on the eve of her marriage with him, when he orally gifted the said property to her and also handed over physical possession of the property to her. Consequently a document, dated 30‑10‑1977 was executed by the donor, which is described by the learned counsel as confirmation of the Oral Gift and another document, dated 3‑3‑1986 was also executed by Dr. Muhammad Mustaqueem.

7. The entire thrust of the argument of the learned counsel was on the proposition that the 'said document, dated 30‑10‑1977 is enough to reach the conclusion with regard to title of the appellant in respect of the property in dispute. The relevant part of the document reads as under:‑

8. "Whereas the party of the First Part wants to marry the Party of the Second Part. as his wife, and the Party of the Second Part has agreed as to such proposal and therefore this agreement witnesses as under:‑

(1) The agreed amount of Meher is Rsa5,101 and Dinar one only.

(2) That the Party of the first Part in addition to the dower amount has agreed to gift his House No.B‑129, Block N, North Nazimabad, Karachi, from his ownership to the Party of the Second Pari in her ownership and the Registration of deed shall be effected before the Registrar, Karachi prior to RUKHSATI.

(3) That it has also been agreed between the parties that the Party (if the Second Part shall possess, utilize and use the property so long the Party of the Second Part remains the lawful wife 'of the Party of the First Part.

(4) That it has also been agreed between the parties that Party of the ` Second Part` cannot transfer, sell and mortgage the property to any other person and in the event of her death the property so acquired by her shall be devolved to her legal heirs (only Children)."

9. (Emphasis supplied)

10. Para. 2 of the document, shows that it was an agreement whereby Dr. Muhammad Mustaqueem had agreed to gift the property in question and pass on the title thereof to the appellant before Rukhsati. This document does not recite that the property in question has been already gifted by the owner of the appellant or that the possession has been handed over to the appellant. It does not even disclose that the document was being executed at the eve of the A marriage. On the contrary, this document contains the promise that the property will be gifted to the appellant when the agreed marriage takes place. Thus the contents of this document are diametrically in conflict with and contrary to what has been alleged by the appellant in her affidavit‑in‑evidence wherein she has alleged that the property in question was already gifted to her by Dr. Muhammad Mustaqueem on the eve of her marriage ceremony with her and he also handed over to her the physical possession of the said property and the above transaction was duly admitted and confirmed by her husband by executing the above document in presence of the witnesses. The appellant has also avoided to disclose the date of her marriage which appears to be obviously a date after execution of the said document. In any case the document belies; her version in evidence and so also of the two witnesses examined by the appellant, namely, Syed Ansarullah and Syed Iqbal Ahmed, who arc also signatories of the said document. They have also deposed that prior to execution of the said document, Dr. Muhammad Mustaqueem had orally gifted the said property to the appellant and handed over to her the physical possession thereof.

11. The learned counsel for the appellant also referred to the endorsement made by the, appellant, in hand, on the bottom of the document, with regard to acceptance of the gift by her and delivery of possession to her. This endorsement is inconsequential, in absence of cogent evidence on the factum of gift and delivery of possession. It is further noted that at least one of s the witnesses, namely, Syed Iqbal Ahmed has not attested the signature of the appellant's husband, but some one else has. done so, though he has attested the signature of the appellant. This fact suggests that the endorsement of acceptance of gift and delivery of possession was incorporated in the document subsequently. The learned Advocate for the appellant also relied on other two documents. One is photocopy of a document dated 3‑3‑1986 (according to tile learned counsel for the appellant the original was seen and returned), which reads as under:‑‑

12. "(1) B‑129, Block N, North Nazimabad will be registered by the name of Mrs. Wajeda Begum w/o Dr. Muhammad Mustaqueem.

(2) Mrs. Wajeda Begum will remain true and lawful wife of Dr. Muhammad Mustaqeem. She will not seek divorce under normal conditions. If she seeks under normal conditions, she will disown the house.

13. (Sd.)

14. '(Dr. Muhammad Mustaqueem) 3‑3‑1986

15. (Sd.)

16. (Mrs. Wajida Begum)

17. 3‑3‑1987

18. WITNESSES :

(1) Syed Amanuallh (Sd.)

(2) Shameem Ahmed (Sd.)

(3) Muhammad Noorullah Farooq Sd/

(4) (Sd.) (Mir Sadique Ali)

(5) Syed Iqbal Ahmed.'

(6) Mir Asif Ali.

(7) Muhammad Sadrul Haque (Sd.)

(8) Muhammad Jalal (Sd.)

(9) Abdul Rahim (Sd.)"

19. The above writing at the most contains the promise that the aforesaid property would be got registered in favour of the appellant. This document on the face of it does not prove anything whatsoever least to say about the oral gift. The other document is a public notice which was got published by the appellant through her Advocate in Daily Morning News of 27‑12‑1987, inviting objections if any, to the mutation of the property to be effected in favour of the appellant in the records of K.D.A. According to the learned counsel no objection was raised by any person whatsoever in response to the said notice. On query he replied that mutation has not been effected by K.D.A. in favour of the appellant. The appellant in her evidence has not stated anywhere that she or K.D.A. had not received any objection, pursuant to the notice published in the newspaper, therefore, this document is of no consequence. Even otherwise this document by itself does not confer any right on the appellant in respect of the property in question. The learned counsel contended that the respondent by describing the property in question as Wajidah Manzil had accepted the appellant as landlady because according to the learned counsel acceptance of the fact that the building is known by the name of the appellant amounts to acceptance of title of the appellant. The submission of the learned counsel is devoid of any force. The learned counsel lastly referred to the reply given by the respondent in cross‑examination, wherein he has stated as under:‑‑

20. "It is correct to suggest that it has come in my knowledge that applicant is owner and landlady of the .tenement in question. Voluntarily says I still do not reply her (Should read as `have not accepted her') as landlady as she has not produced the ownership documents."

21. What the above statement conveys is not unequivocal acceptance of the appellant as owner of the property. On the contrary, the above statement suggests that the respondent would accept her as owner, if the appellant would produce document to establish her entitlement. From the above statement it is not possible to infer that the respondent has accepted the relationship of landlord and tenant between the parties.

22. The appellant has alleged that the respondent was inducted as tenant by her in the flat in question, whereas the respondent has denied the same and has stated that he had been paying rent to her husband. The appellant has not produced any evidence whatsoever in proof of her above assertion.

23. The learned counsel for the appellant has relied on the case of Shaheryar Ali Patodi and 3 others v. Messrs Decroa Furnishers PLD 1985 Karachi 47, on the proposition that a stranger to a gift cannot legally and validly challenge factum of delivery of possession and that a tenant could not challenge the landlord's title, if by cogent and conclusive evidence it is proved that donor made an oral gift which was accepted by the donee and possession was delivered to the donee. There is no cavil on the aforesaid proposition of law. In this case first of all the cogent evidence, to conclusively establish that the property was gifted to the appellant, is not available and on the contrary the documentary evidence produced is in conflict with the oral evidence given on the factum of gift and the document does not disclose the alleged oral gift. In this case it is not the question of denial of the title of the appellant by the tenants/respondent but the question before the Court was whether the appellant could legally claim herself to be the donee of the property and consequently landlady of the respondent. The burden to prove the aforesaid issue was on the appellant. The Court was considering the issue whether on the basis of the material placed before the Court by the appellant it could be concluded that the respondent is the tenant of the appellant. The assumption of the jurisdiction by the Rent Controller was subject to the decision of the finding that there existed relationship of landlord and tenant between the parties. While examining the said issue the Court returned the findings in negative on the basis of evidence on record. In view of the above circumstances the aforesaid authority does not advance the case of the appellant in any manner whatsoever. It is admitted that the appellant had filed Suit No.372 of 1988 against her husband. The learned Advocate for the appellant informed the Court that the suit was dismissed and appeal is pending before the District Judge, Karachi (Central).

24. Under the circumstances no exception can be taken to the finding of the learned Rent Controller. This appeal is, therefore dismissed with no order as to costs.

25. H.B.T.;/W‑68/K Appeal dismissed.