AMINA BEGUM Versus MUHAMMAD SIDDIQUE

FAZAL ILAHI KHAN, J.--- Mst. Amina Begum and her two sons Dr. Fateh Muhammad and Muhammad Naeem brought Eviction Application No.11/92 (F.A.O. No.84/92) against Muhammad Siddique from shop No.4-23/3, Eviction Application No.12/92 (F.A.O. No.85/92) against Abdur Rashid Sialkoti from Shop No.4-23/4, , Eviction Application No. 13/92 (F.A.O. No.86/92) against Abdur Rashid son of Ghulam Nabi from Shop No.4-23/5, Eviction Application No.14/92 (F.A.O. No.87/92) against Abdul Baqi and 2 others from Shop No.4-23/6; and Eviction Application No.15/92. (F.A.O. No.88/92) against Haji Surat Khan from House No.4-23/7 for their ejectment. Appellant No.1 alleged to be the landlady/owner of property, which she had rented out to the respondents and that appellants Nos.2 and 3 are her sons and as such the owners. That appellant No.2 is Doctor by profession and has returned to Quetta with his family of seven members from Madina Munawwarah where he was previously serving, and is putting up in a rented house. That appellant No.3 is an army personnel and has a family of five members who at present is putting up at Karachi and intend to join the family at Quetta. That the appellants wanted to demolish the premises and to construct a Pukka house over the shops in question That the house in their possession is a small one of 7 type and is in dilapidated condition. That sanction was duly accorded on 17-9-1990 by the Municipal Corporation, Quetta of proposed construction plan. That eviction application regarding the rented premises in their possession had been moved before the Rent Controller by their landlord. That the respondents were approached to vacate the premises on account of their bona fide personal need stated above but they refused; hence, the petitions for ejectment.

2. The ejectment petitions were resisted by the respondents in their respective written statements on identical grounds. The learned Rent Controller, therefore, framed the following issues in all the eviction petitions:

(1) Whether there exists no relationship of landlord between applicants Nos.2 and 3 and the respondent? If so, to what effect?

(2) Whether the applicant No.1 requires the premises in question reasonably and in good faith for demolition and reconstruction?

(3) Whether the applicant No.1 requires reasonably and in good faith the premises in question after reconstruction for her own use and for the use and occupation of her sons?

(4) Relief.

3. Four witnesses appeared in support of appellants' case in addition to appellant No.3, who also appeared as an attorney for rest of the appellants. Each respondent appeared in support of their pleas and also produced oral witnesses. After recording such evidence the learned Rent Controller decided all the 3 issues in favour of the appellants and against the respondents and in consequence thereof allowed the eviction Petitions and ordered the respondents' ejectment vide judgment dated 30-7-1992. The respondents were allowed a period of 3 months for vacation of the premises in their possession. The orders of ejectment were challenged to appeals before the learned High Court. The learned High Court held that relationship of landlord and tenant did not exist between appellants Nos.2 and 3. That the respondents would not be the landlord on the ground that they are the sons of appellant No.1 (landlady). It was further held that as the building plan was sanctioned in the names of the appellants Nos.2 and 3, therefore, appellant No.1's plea of reconstruction and bona fide personal need for her sons was also not available to her. On such finding the learned High Court rejected both the pleas of reconstruction and bona fide personal requirement. Accordingly, the appeals were accepted, the judgments and orders of the Rent Controller were set aside and the eviction applications were dismissed by judgment dated 16-5-1993. It may be pointed out that the trial in support of their ownership, the appellants in their evidence before the Rent Controller placed on file certified copy of the mutation whereby appellant No.1 had transferred the suit property in favour of appellants Nos.2 and 3 and it has been incorporated in the subsequent Jamabandi which evidence was rejected by the learned High Court.

4. Leave was granted on the contention raised by the learned counsel for the appellants "that the learned Judge in, Chamber erred in ignoring the documentary evidence which clearly establishes the title of the petitioners (appellants) as Exh. P/4 was 30 years old document. The appellants have produced the Municipal Corporation sanction plan, therefore, their bona fide requirement for the construction has already been established. That this was the first impression that there is misreading of evidence made by the High Court".

5. We have heard the learned counsel for the parties and have perused the record. There is no denial of the fact that relationship of landlord and tenant did exist between the appellant. No. l and the respondents. However, respondents denied such relationship between them and appellants Nos.2 and 3.. This impression was created as the landlady in the eviction applications had alleged that they are her sons, therefore, owners of the property. However, their ownership was subsequently re-enforced in their evidence led before the Rent Controller. Ali Ahmad Patwari, Office of the District Qanoongo, was examined as A.W.3 who certified copy of Jamabandi wherein appellants Nos.2 and 3 are recorded , to be exclusive owners of the suit premises. They have also placed certified copy of the mutation on the file. However, during the pendency of the appeal an application for additional evidence was moved before the learned High Court so as to prove Exh.A/4 through representative of Tehsildar Quetta and alongwith application they have filed photostat copy of Mutation No.441 attested on 10-10-1960 whereby Mst. Amina Begum appellant No.1 transferred the suit property in favour of Fateh Muhammad and Muhammad Naeem, her sons. This mutation is duly given effect to in the Jamabandi of the year 1983 wherein Fateh Muhammad and Muhammad Naeem are recorded as the exclusive owners of the suit property which is shown in possession of the tenants. It can, therefore, safely be held that appellants Nos.2 and 3 are the owners of the suit premises as presumption of correctness is attached to the Revenue Record which has not been rebutted by the respondents and which fact has even not been denied by appellant No. l at the trial. We, therefore, hold that the learned High Court erred in holding that the document Exh.P/4-A has not been proved. As far as Exh. P-4/A is concerned PatWari Halqa has stated as under:-

6. The discrepancy pointed out by the learned High Court in the cross- examination of the witness is immaterial as according to the witness the certified copy is not in accordance with the copy which he placed on file and rightly so because the certified copy issued by the Copying Department has a certificate that it is correct copy of the original and issued by the Tehsildar and it bears the number of the application for certified copy as required. Similarly the date of making the application, fee chargeable for the certified copy and the name of the person who prepared the certified copy are also given which are not there on the original mutation produced by the witnesses in Court. These documents clearly establish that the appellants Nos.2 and 3 are the owners of the property. Even though after such transfer in favour of her sons appellant No.1 was realizing and managing the property as owner because appellants Nos.2 and 3 were out of Quetta as stated above. Whether appellants Nos.2 and 3 on the basis of such documents would be deemed to be the landlord within the meaning of word 'landlord' as defined in section 2(1) of the West Pakistan Rent Restriction Ordinance and as to whether appellant No.1 is entitled to seek ejectment on the ground of reconstruction when the approved building plan was in the names of her sons, the real owners, are two moot questions which were decided against the appellants bas the learned High Court. These questions have, however, been elaborately discussed in an identical case Muhammad Ali petitioner v. Haji Abdur Rehman and others respondents reported in .1980 SCMR 29. Facts of the precedent case briefly stated are the Haji Abdur Rehman respondent No. l leased out the property on 17-3-1965 though the property was admittedly owned by Abdul Rahim and Abdul Ghafoor sons of Haji Abdur' Rehman.

The lease deed was signed by their father on their behalf. The owners i.e. the sons filed an eviction application against the petitioner but it was dismissed on the ground that they were not the landlord. This stand had been taken as the lease deed was executed by respondent No.1, therefore, his sons could not be treated as landlord. Thereafter, as in the present case, fresh application was filed by respondent No. l in which two grounds were taken; one of subletting which was not subsequently pressed, and the other of bona fide requirement of the landlord for the erection of the building. This application was dismissed by the learned Rent Controller on 31-5-1977 as regarding the ground of reconstruction it was observed by the learned Rent Controller that the requisite sanction in this behalf had been obtained by the sons of the respondent No. 1 and not in his name, therefore,, the condition laid down in section 13(2)(vi) of the Ordinance was not satisfied. The respondent filed an appeal which was allowed. The view of the First Appellate Court was whether the plan should have been sanctioned in the name of the respondent No. l in case it is held that the necessary sanction for erection of the building must be in the name of the landlord then in certain cases if the landlord who is not the owner cannot file eviction application on the ground of reconstruction, or erection of new building, against his tenant as sanction is always given by the Municipal Committee, etc. to the owner of the building or a rented land. In the second appeal the learned Judge in the High Court, after taking note of the provision contained in section 13(2)(vi) of the Ordinance made reference to the definition of landlord contained in section 2(c) and held that the respondent would fall within the said definition as he was entitled to receive rent on behalf of his sons. The learned Judge who took note of the fact that the sanction to erect the building is ordinarily granted by the Municipal Authority to an owner and that "literal and strict construction of the above provision of the Ordinance would wholly lead to unreasonable result. In cases of this nature, therefore, it would become impossible for the landlords to obtain eviction of the tenant where the premises are required for construction or erection of a new building".

7. Two points were raised in the precedent case by the learned counsel appearing for the petitioner for seeking leave to appeal against the judgment of the learned High Court in the present case. The first point regarding bona fide requirement was, however, found concluded by the. findings of the 2 Courts below. With regard to the second point which was found to be a technical one it was observed:--

"It needs to be observed that in addition to the consideration which weighed with the learned lower Appellate Courts, it cannot be ignored that the definition of landlord contained in section 2(c) of the Ordinance is very wide. An owner who is entitled to receive rent would undoubtedly be a landlord under the said Ordinance, but a person mentioned in the definition who is competent to receive rent on behalf or for the benefit of the aforementioned landlord would also be the landlord. There is a peculiar feature of this case. On the petitioner's objection that the owners were not the landlords their application was earlier dismissed as incompetent. It cannot be said that this approach, in the first round of litigation, regarding definition of landlord was correct. "

8. Both the questions with regard to relationship of landlord and tenant and with regard to the sanction in the names of the sons who were the real owners, as is in the present case, stand decided by the precedent case which is applicable on all force to the facts of the present case. We, therefore, hold that B appellants Nos.2 and 3 who have proved to be the owners of the property through the evidence, which the learned High Court erred in rejecting, would be safely held to be the landlords of the property. On facts of the case and the sanction plan having been obtained in the names of the real owners and not in the name of appellant No. l is inconsequential.

9. Issue with regard to bona fide personal requirement has been decided in favour of the appellants Nos.2 and 3 on proper appraisal of the evidence which has not been interfered with by the learned High Court on the ground that it is linked with the plea of reconstruction, which we have decided in favour of the appellants, needs no further discussion. Even otherwise in view of the judgment in M/s. Amir Din and Allah Ditta petitioners v. Seth Adam Ji Adbullah and others respondents (1969 SCMR 131) objection with regard to bona fide need of the landlord could not have been entertained by the learned High Court in view of the penal provisions contained in subsection (5) of section 13 of the Ordinance which afford adequate safeguard against the landlord acting in bad faith.

10. For the reasons stated above these appeals are allowed, judgments and orders of the learned High Court are set aside and those of learned Rent Controller are restored.

11. Learned counsel for the respondents has made request for a period of one year for delivery of vacant possession of the premises to the appellants without any hindrance. Learned counsel for the appellants, however, stated that the ejectment petitions are pending since 1990, therefore, their clients are not agreeable to one year period. However, he volunteered to allow a period of six months to the respondents (tenants) for handing over vacant possession of the premises without any hindrance. Accordingly, respondents/tenants are allowed a period of six months for handing over the vacant possession of the premises in question to the appellants/landlords without any hindrance and subject to payment of rent. Parties are left to bear their own costs.

A.A./A-1296/S Appeal allowed.