KHUDA BAKASH Versus MUHAMMAD YASIN
1. This appeal arises out of the orders passed by the Rent Controller and Senior Civil Judge, Shahdadpur in Rent Application No.40 of 1981 whereby he allowed the same and ordered the ejectment of the appellant.
2. Briefly the case of the respondent/landlord is that he had purchased the shop bearing C.S. No.279, Ward `B', Shahi Bazar, Tando Adam (hereinafter referred to as the disputed shop) from one Hassan Ali for the consideration of Rs.50,000 through sale‑decd dated 12‑4‑1981. It is further the case of the landlord that the appellant is the tenant in the disputed shop at the rent of Rs.300 per month and that he had served a notice on the appellant on 18‑5‑1981 which was duly replied by the appellant but in spite of that, the appellant failed to pay the rent. The landlord thereafter riled the application for ejectment of appellant on the grounds of default in payment of rent and the personal bona fide,. requirement. The appellant filed his objections wherein he stated that the disputed shop was originally an evacuee property which was purchased by Sher Khan the father of the vendor Hassanali and that after death of Sher Khan the said Hassanali fraudulently got disputed shop and other properties left by his deceased father mutated in his own name and fraudulently sold the disputed shop to the present respondent. He further contended that after the death of Sher Khan a dispute arose between his heirs. It is the case of the appellant that he is not the tenant of the disputed shop but his son Raheem Bux is the tenant ever since the disputed shop was with the Custodian and that Rahim Bux was paying rent to the Custodian at the rate of Rs.6 per month and that after the dispute between the heirs of Sher Khan, Rahim Bux has been depositing the rent in the Court of Rent Controller, Shahdadpur at Rs.20 per month, the rate at which he had been paying the rent to the father of the vendor who was the original transfree of the disputed shop (Sher Khan). On these pleadings of the parties, the Rent Controller settled the following points for determination:‑‑
(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether the opponent is wilful defaulter in payment of rent?
(3) Whether the shop in dispute is required by applicant for the personal use bona fide?
(4) What should the order be?
3. The landlord/Respondent filed his own affidavit in evidence and produced extract of property register, sale‑deed, copy of notice with postal receipt and reply of notice with the envelope. He also filed the affidavits‑in- evidence of two witnesses Abdul Rehman and Ahmed. The present appellant filed his affidavit‑in‑evidence and produced 11 receipts of rent paid in Court, 3 receipts from Custodian a office, true copy of plaint in Suit No. 34 of 1981, 3 receipts of Property Tax, a receipt from Municipality, 17 receipts of Ice Factory, 2 Bills of Ice Factory and four receipts of Town Committee. He also filed the affidavits‑in‑evidence of two witnesses Mohammad Ali and Mehrab Khan.
4. The Rent Controller answering all the points in affirmative allowed the application and ordered the ejectment. Being aggrieved, the present appellant has filed this appeal. I have heard the submissions of the learned counsel for parties and have perused the record. My findings are as under:
5. POINT NO.1.
6. On this point Mr. Hakim Ali Siddiqui, Advocate for the appellant has argued that shop in dispute was originally an evacuee property and that ever since that time Raheem Bux, the son of appellant was the occupant, therefore, the terms and conditions of the tenancy will be governed by the provisions of Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 in spite of the same having been repealed with effect from 1‑7‑1974. From this submission he has tried to make out a case that unless the tenant is served with a notice under Section 30 of the said repealed Act and he, having failed in compliance thereof, no ejectment proceedings can be filed against him. He has referred to the case of Mohammad Tufail v. Barkat Ali PLD 1967 Karachi 151. I am afraid this case will not help the appellant as it pertains to the period prior to the repeal of the Act XXVIII of 1958. The other case relied upon by the learned counsel is that of Beigal Mil v. Pooniji 1987 CLC 1134. In this case it was held that the Rent Controller could not go beyond transfer order of Settlement Authorities and that where occupants of such property were claimed by subsequent transferee to be his tenant who themselves claimed right in property, then such dispute between parties could be decided only by Civil Courts and that the Rent Controller would have no jurisdiction in the matter. It may be observed that in this case as well as the two other cases relied upon by the Advocate for the appellant i.e. cases of Haji Faqir Mohammad v. Ha _natullah 1989 CLC 252 and Mst. Anis Bano v. Mst. Rabia 1987 CLC 775 it has been held that the mere fact that a party acquires certain interest such as ownership or lease rights in the property in occupation of another person would not ipso facto create the relationship of landlord and tenant between the parties; such relationship could be entered only either by some oral or written agreement or by statute. There is no cavil about this proposition of law.
7. The other question which was raised and requires consideration is whether the occupant of evacuee premises which had since been transferred by the Settlement Authorities, would still be entitled to the protections under Section 30 of the Act XXVIII of 1958 in spite of its repeal with effect from 1‑7‑1974. This point has been discussed by their Lordships in the case of Muhammad Ramzan v. Ch. Bashir Ahmed PLD 1981 SC 340 and it has been held that the character and intention underlying the provisions of Section .10 relating to issuance of notice and protection provided therein were of transitory and temporary character and were not intended to create any permanent rights and liabilities. From this it follows that the occupant of the premises was not entitled to the notice nor the protection and the landlord was not under any liability to send such a notice to the occupant/tenant before filing of the eviction petition because the Act XXVIII of 1958 having been repealed, it was not necessary.
8. Mr. Hakim Ali Siddiqui, Advocate for the appellant has then referred to the factual aspect of the case. He has pointed out that the present application for ejectment has been filed against a wrong person and not against the real tenant in spite of the landlord's having the knowledge thereof. TIC has referred to the receipts of Custodian's office Ex. 26/1 to Ex. 26/3 which pertain to years 1955‑57 and show that the rent is paid by Raheem Bux. He has also referred to Exh. 27/1 to 27/3, the receipts of Excise Department which show that the Property Tax for the years 1977‑78 to 1981‑82 was paid by Rahim Bux "Occupant". He has also referred to Municipality Tax receipt Ex. 28 to show cleaning tax for the year 1‑7-1981 to 30‑6‑1982 was paid by Rahim Bux on behalf of Nawab Sher Khan Hassan Ali Khan. lie has also referred to the 11 rent receipts showing that the rent was being deposited by Raheem Bux in the Court of Rent Controller in MAR No.3/1979, since prior to the filing of this application. He has also referred to paragraph No.3 of the written objection filed by appellant in Court on 25‑1‑1982 wherein he has specifically stated that he is not the tenant of the disputed shop but it is Raheem Bux. He has also produced, alongwith his objections, the photostat copies of the rent receipts showing the rent being paid by the said Raheem Bux. It is the contention of the learned counsel for the appellant that in spite of having acquired this knowledge at the earliest stage in the proceedings, the landlord took no steps to join the said Raheem Bux in the eviction petition. Mr. Jhamat Jethanand, Advocate for the respondent when confronted with this situation candidly conceded that this was a mistake on the part of the landlord. However, he submitted that in reply to the notice sent by the landlord to the present appellant, he had admitted himself to be the tenant and, therefore, now he cannot get out of his own admission. A reference to the notice sent by the landlord would reveal that it was sent through his Advocate Mr. Sabir Hussain Kidwai, Advocate, Tando Adam on 18‑5‑1981 (Exh.15). Its reply is on record as Exh.17 which is signed by the appellant in vernacular and is dated 10‑5‑1981 and is addressed to Mr. Sabir Hussain Kidwai, Advocate, Tando Adam. In this reply of notice he has stated that he is depositing rent in Court and that he is running the business in the disputed shop. He has also stated that he is willing to enter into the agreement of tenancy. However, it is nobody's case that the said agreement of tenancy was ever executed. The appellant has, however, explained that he is an illiterate person and his signatures were obtained on plain paper. Be as it may, there is overwhelming genuine documentary evidence on record to show that Rahim Bux is the tenant and that this fact was brought to the knowledge of the landlord at the earliest stage in proceedings, yet no effort was made by him to join the said Rahim Bux in the eviction .. proceedings. The reply (Exh.17) itself would not create relationship of landlord `' and tenant as it shows that the appellant who was neither statutory nor contracted tenant had offered to enter into agreement of tenancy but no such tenancy agreement was executed. The landlord also did not prove if the present tenant paid the rent of the said premises, by any independent evidence.
9. On the questions of law Mr. Jhamat Jethanand, Advocate for the respondent has argued that the tenant who has once paid rent to the owner of the premises as the transferee of the Settlement Department cannot seek protection of the Notice under rent laws and section 30 of the Act XXVIII of 1958. He has placed reliance on the case of Mst. Muhammad Nissa v. Anwar Ali 1989 CLC 157 and Israr Ahmed v. Abdul Aziz 1987 CLC 336. There is no dispute adopt this as this is the settled legal position. However, this is not the question involved in the present case. In this case the said Rahim Bux is shown to have been paying rent to the Custodian and then to the transferee of the Settlement Department and his heir. Therefore in such case the said Rahim Bux cannot claim this protection. These cases however would have no relevance as far as the case of , present appellant is concerned. The learned counsel then placed reliance on the cases of Major (Retd.) Muhammad Yousuf v. Mehrajuddin 1986 SCMR 751 and Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24. With respect to the decisions given by the Honourable Supreme Court in these two cases, I am of the view that the same would not apply to the present case as in those two cases the eviction petitions were filed against the tenants who in spite of knowledge of the pendency of the petitions failed to pay the rent. In the present case the tenant is Rahim Bux who is not the party to the eviction proceedings.. The learned counsel then finally submitted that the present appellant has since died during pendency of appeal and the said Rahim Bux is now joined in the appeal as one of his legal representatives in the year 1988 and has failed to pay the rent and therefore now he has become liable to ejectment. I am afraid I cannot agree to this submission of the learned counsel as there is no such order for deposit of rent passed in the appeal. Also it is not shown by the respondent that the said Rahim Bux has ceased to pay the rent in Court which he had been doing in his own right.
10. The upshot of the above discussion is that there is no relationship of landlord and tenant between the parties. The finding of the Rent Controller on l[ this point is set aside.
11. POINT N0.2.
12. I have held that there is no relationship of landlord and tenant between the parties and as such there is no need to go into other questions at this stage.
13. In view of the above findings I allow this appeal, set aside the judgment of Rent Controller and dismiss the ejectment application filed by the respondent before the Senior Civil Judge and Rent Controller, Shahdadpur. However, there will be no order as costs.
14. H.B.T/K‑293/K Appeal allowed.