Shaikh MUHAMMAD AFZAL vs VIRBAI through Legal Heirs

1. ' The appellant has called in question the order passed by the learned third Senior Civil Judge and Rent Controller, Karachi (East), dated 22-11-1987, directing the appellant to vacate the demised premises within sixty days from passing of the said order.

2. ' The respondent had earlier filed an application seeking ejectment of the appellant from the demised premises on various grounds. However, the only ground which weighed with the learned Controller was that the appellant had committed default in payment of rent with effect from Ist March, 1978 to 31st March, 1981. The rate of rent for the demised premises, according to the respondent, was Rs,200 per month, consequently the appellant fell in arrears of rent amounting to Rs,7,400. The property in question was acquired by the respondent from the Settlement Department through a P.T.D. Which showed that out of a total area of 6,704 sqr. Yards, 113 square yards from the property in question had been transferred to the respondent. However, admittedly no demarcation plan had been received by the respondent from the concerned authorities.

3. ' The application filed by the respondent was resisted by the appellant, according to whom, he had purchased the property from one Pathan in 1963, consequently, the relationship of the landlord and the tenant between the parties was disputed by the appellant.

4. ' The respondent, apart from P.T.D., relied upon a photo copy of the lease agreement the original of which was said to be lying with one Abdul Malik an area Councillor. The execution of this agreement was, however, denied by the appellant and admittedly neither the said area Councillor was examined in the Court as a witness nor any other proof in support of the said document was supplied by the respondent. Admittedly the appellant had also failed to adduce any documentary evidence in respect of his contention that he had purchased the property from its original owner as pointed out earlier.

5. ' The learned Controller on the basis of aforesaid evidence held that although the case of the respondent had been established but the appellant had failed to prove its case before him. The learned Controller was of the view that the onus in this regard lay on the appellant to prove his title to the property which he had failed to discharge and consequently the learned Controller has ordered his ejectment from the demised premises as admittedly rent had not been paid by the appellant to the respondent for the dismised premises.

6. ' After hearing, Mr. Abdul Wajid Wyne and Miss Afroz Ihsanul Haq, learned counsel for the appellant and the respondent respectively and after going through the evidence adduced by the parties I find that the impugned order cannot be sustained. No doubt, it was not disputed that the respondent had been allotted 113 square yards from the property in question, but admittedly, the site plan demarcating the area allotted to the respondent had not been supplied to her by the concerned authorities. The appellant had disputed the respondent's ownership over the premises in his possession, therefore, the burden to establish that the respondent was the owner of the property in possession of the appellant was clearly on her. The respondent in this regard had placed reliance mainly upon the lease agreement and Form P.T.1, but Form P.T. 1 cannot be relied upon as a conclusive evidence in respect of the ownership. So far as lease deed is concerned, no doubt, its photo copy had been produced in evidence by the respondent but the execution of the said document was not admitted by the appellant. Consequently, the burden to prove the same again lay on the respondent. No other evidence was adduced in this regard by her in proof of the alleged execution of the said document. No doubt, the appellant himself did not lead evidence in support of his claim viz. That he was the owner of the portion in his possession, but notwithstanding the same, the burden to establish the relationship of the landlord and the tenant between the parties was in the first instance on the respondent, which she clearly had failed to discharge. As she had failed to at least prima facie establish that she was the owner of the portion of the property in possession of the appellant, as it has been invariably held by the Supreme Court, it is imperative for the landlord to first establish his title through a Civil Court, because the limited nature of jurisdiction conferred upon the Controller to be exercised does not permit him to himself decide the disputed questions of title. There being no prima facie evidence to establish that the respondent was the owner of a portion of the property in possession of the appellant, the order passed by the learned Controller is clearly without justification.

7. ' In the result, I allow this appeal and set aside the order dated 22-11-1987, passed by the learned Controller. It will, however, be open to the respondent to get her title in the property first established by a competent Civil Court.

8. ' The parties are left to bear their own costs.

9. ' It has been pointed out that the appellant had deposited arrears of rent and future rent with the Nazir of this Court in pursuance of the order of this Court dated 10-4-1988. He is permitted to withdraw the rent from this Court in veiw of this judgment.