ABDUL HAMEED NAZ Versus RAZIA BEGUM AWAN

SHAFIUR RAHMAN, J.‑‑‑ Leave to appeal was granted to the appellants who claim to be the tenant and landlords of House on Plot No.467/F, Satellite Town, Rawalpindi against Mst. Razia Begum who claimed to be the owner/landlady of the same property, to examine whether it was not a title dispute between the two persons more appropriately to be decided by the Civil Court than in the rent control proceedings resulting in the ejectment of appellant No. 1.

2. Plot No.467/F, Satellite Town, Rawalpindi measuring 9 marlas admittedly belonged to the Government of the Punjab (Housing and Physical Planning Department) and it had been allotted to Malik Muhammad Amin. On 28‑4‑1961, the aforesaid Malik Muhammad Amin executed an agreement to sell it in favour of Haji Faiz Ali who, it is said, orally gifted it to Ch. Muhammad Sadiq, predecessor‑in‑interest of appellants Nos.2 to 8 in 1965 and acknowledgement of which exists in writing which is dated 6‑8‑1977. This property was requisitioned by the Commissioner once in 1975 treating Ch. Muhammad Sadiq to be its owner and the payment of rent was made to him. In 1976, it was derequisitioned. It was thereafter hired by appellant No.l from Ch. Muhammad Sadiq, the ostensible owner. The appellant No.1 being a Government employee, the Government approved of its hiring through the Estate Office. The rent was being credited to Ch. Muhammad Sadiq and after his death to his heirs. The house existing on the plot is said to be four bed‑rooms house with a kitchen and drawing‑room and a bath room.

3. On 21st of April, 1982, Mst. Razia Begum (respondent No.l) was successful in obtaining the transfer of this plot from the.. Housing and Physical Planning Department, Government of the Punjab, with the consent of Malik Muhammad Amin. She served a notice under section 13‑A of the Rent Restriction Ordinance on appellant No.l and filed on 10‑8‑1982 proceedings for his ejectment before the Rent Controller. On 1‑11‑1982, she filed a civil suit also claiming title as against the ostensible owner Ch. Muhammad Sadiq, the predecessor‑in‑interest of appellants Nos.2 to 8. She withdrew the civil suit and allowed the ejectment application to be rejected.

4. On 1‑9‑1983, she filed an ejectment application seeking ejectment of the appellant No.l from the property on the ground of having defaulted in the payment of rent even after receipt of the notice under section 13‑A of the Rent Restriction Ordinance. The proceedings were contested and when Ch. Muhammad Sadiq's successors‑in‑interest (appellants Nos.2 to 8) tried to intervene before the Rent Controller and at the appeal stage by getting themselves impleaded, they were not allowed to do so. The trial Court framed the following issues on the pleadings of the parties:‑‑

"(1) Whether the relationship of landlord and tenant exist between the parties?

(2) Whether the petition is defective in view of preliminary objection No.5?

(3) Whether the respondent is entitled to special costs? If so, to what extent?

(4) Relief."

5. The Rent Controller on Issue No.1 held as hereunder:‑‑

"In nutshell, as the petitioner has not derived title from the previous landlord, irrespective of the fact that said landlord is owner or not of the property, therefore, the present petitioner cannot be considered as landlord of the disputed property. Hence the relationship of the parties is not proved as of landlord and tenant."

The other issues were not decided except Issue No.4. The petition was dismissed with costs.

6. On appeal, the appellate authority reversed the finding on issue No.l by observing as hereunder:‑‑

"After the receipt of this notice respondents continued to pay the rent to Muhammad Sadiq the previous landlord. Now the contention of respondents is that even after the receipt of the notice they were not bound to pay the rent to the appellant. This contention has no force, because after receipt of notice previous landlord ceased to be the landlord of the suit property and only subsequent transferee was entitled to receive the rent from the tenant."

On this finding, the ejectment of the appellant No.l was ordered.

7. Two Constitution petitions were thereafter filed in the High Court one, by the appellants and the other, by the Federal Government, which failed. The High Court took the view as hereunder:‑‑

"In the instant case, the plot underneath the house was originally allotted to Muhammad Ameen, the predecessor‑in‑interest of Maqbool Jan etc. (respondents Nos.2 to 8), who surrendered his rights in favour of Mst. Razia Begum respondent and consequently the premises were transferred to the latter by the Housing and Physical Planning Department, Government of Punjab. Thus visualised the relationship of landlord and tenant existed between the respondent Mst. Razia Begum and the Federation of Pakistan as the title and interest of the original landlord namely, Muhammad Ameen were transferred to her under the sale effected. Notice under section 13‑A of the Ordinance was admittedly served upon the Federation. The rent was admittedly not paid within thirty days from receipt of notice. In the circumstances, the ejectment petition filed by Mst. Razia Begum on the ground of default in the payment of rent due was competent and the ejectment order passed by the learned District Judge suffered from no legal infirmity and is based on proper appreciation of evidence on record warranting no interference by this Court in the exercise of writ jurisdiction."

8. Kh. Muhammad Farooq, Advocate, the learned counsel for the appellants has contended that in view of the serious title dispute involved and the. history of the property itself where under Ch. Muhammad Sadiq had remained in the enjoyment of it since 1965, the Rent Controller could not have acquired jurisdiction simply because a notice under section 13‑A of the Rent Restriction Ordinance was served. It was, as originally attempted by respondent No.l herself. a case for the Civil Court involving title dispute with regard to the superstructure and the plot both, and the same could not be decided only on the strength of notice under section 13‑A of the Rent Restriction Ordinance.

9. Mr. Habibul Wahabul Khairi, Advocate the learned counsel for the respondent No.l has on the other hand pointed out to the statement of Ch. Muhammad Sadiq himself, the suspect manner in which he acted and the obvious defect in his title in the property. It was contended that she was the rightful owner, entitled to the rent on service of the notice under section 13‑A and a default had taken place in not paying the rent to her. fie defended the ejectment order maintained m the Constitution petition.

10. This was not a case in which the Rent Controller could feel satisfied with regard to the existence of the relationship of landlord and tenant. between Abdul Hamid Naz or the Federal Government and the respondent No.l Mst. Razia Begun Awan. It appears that the appellate authority and the High Court both proceeded on the assumption that once a notice under section 13‑A of the Rent Restriction Ordinance has been served, irrespective of the person who serves, it by its own operation, establishes the relationship of landlord and tenant between person serving the notice and the person receiving the notice. The legal proposition cannot be so broadly stated. In the case before us, there are two impediments which appear to be insurmountable in the jurisdiction of the Rent Controller. The first is that since 1975, at least, Malik Muhammad Amin the allottee of the plot Gad been exercising no dominion or control over the plot. The property was requisitioned in early 1976 and was got derequisitioned the same year at the end, at the instance of and for the benefit of Ch. Muhammad Sadiq. It was subsequently hired by the appellant No.l from Ch. Muhammad Sadiq. The Government entered into the hiring agreement with Ch. Muhammad Sadiq. The rent was all along paid by the Federal Government as well as by the requisitioning authority to Ch. Muhammad Sadiq, treating him to be the owner of the house.

Secondly, the respondent No.l had obtained a plot from the Housing and Physical Planning Department and there was no mention of a superstructure on it. The formal registered document, at least, does not mention it. She did not claim to derive any interest from Ch. Muhammad Sadiq who was being dealt with as the owner of the property since 1975; though he claims to be so as from 28‑4‑1961, which fact was not gone into in rent control proceedings. In such a situation, the mere service of the notice by her would not entitle her to substitute Ch. Muhammad Sadiq as the landlord, Malik Muhammad Amin having never remained in the field in the matter of tenancy arrangement.

11. The law tin the subject has been laid down with sufficient clarity in Rehmatullah v. All Muhammad and another (1983 S C M R 1(64) the relevant portion being as hereunder:‑‑

"It needs to be seen whether in this case the first appellate Court was justified in directing the appellant's ejectment notwithstanding the deficiency pointed out by it regarding finding of fact. It is also to be seen as a second step whether any of the parties could in view of the afore -discussed position regarding fresh litigation in Civil Court be left to remedy through a civil suit, for determination of title. And lastly in the light of the finding of fact by the learned three Courts below, whether the appellant, so‑called tenant, could in this case, be evicted and left to seek redress from the Civil Court.

It has already been held that when the decision of the issue regarding relationship of landlord and tenant depends solely and not only incidentally on the question of the ownership and title to the property and it will not be possible for the Controller to decide the case without deciding toe basic question involved regarding title, then in such like cases it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative. It has also been observed that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment. The decision of main issue depends directly on the decision regarding title in the present case. The learned Rent Controller adopted the right course. But without disturbing the findings of fact rendered by him, the learned first appellate Court notwithstanding expression of doubt regarding the success of the respondent on the issue of title and relationship of landlord and tenant, allowed the eviction application. This with respect, is not in accord with law as discussed above."

Similarly, in the case of Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (P L D 1985 S C 1) this Court has held as hereunder:‑‑

"The principle and the rule embodied in section 116, Evidence Act is not attracted in all cases of dispute over title between landlord and tenant. One exception as in this case is the denial vis‑a‑vis a stage after "the beginning of the tenancy". Another condition is that the denial should be during the continuance of the tenancy and not after the determination thereof. Moreover, it should be of the landlord who `let the tenant in' and not of any other person."

Both these principles apply to the case in hand.

12. The learned counsel for the respondent No.l has tried to draw support for his case from the oral evidence, particularly the uninspiring statement of Ch. Muhammad Sadiq himself, in order to make out the title of respondent No.1. In view of the nature of the rights appearing on the record and the continuous uninterrupted exercise of the same by Ch. Muhammad Sadiq it is not possible to hold that the title dispute stood resolved with his statement.

13. The appeal is allowed. The judgment of the appellate authority and the High Court is set aside and that of the Rent Controller restored, with no order as to costs.

AA./A‑845/S Appeal accepted.