AFZAL AHMAD QURESHI vs MURSALEEN

ORDER

' JAVED IQBAL, J.---This civil petition for leave to appeal is directed against judgment dated 17-2- 2000 passed by learned High Court of Sindh at Karachi, whereby the order of learned Rent Controller dated 29-2-1998 accepting the eviction application moved by the petitioner has been set aside.

2. Briefly stated the facts of the case are that petitioner filed eviction application on the ground of default in payment of rent and for personal bona fide use of the property in dispute which was strenuously controverted by the respondent and the relationship of landlord and tenant was contested. Learned Rent Controller, however, after conclusion of trial accepted the eviction application and directed ejectment of the respondent. Being aggrieved an appeal was preferred by the respondent which has been allowed vide impugned judgment.

3. Heard Mr. Afzal Ahmed Qureshi (petitioner) who mainly argued that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention he mentioned that property in dispute was purchased from one Shahid Iqbal having power of attorney duly executed by Nafisa Begum the owner of the disputed property and after completion of transaction made by Shahid Iqbal on her behalf the question of revocation of the power of attorney does not arise. It is urged with vehemence that no objection whatsoever was raised by the respondent that the property in question was got mutated in his name by the House Building Finance Corporation on 8th July, 1993 but no attention whatsoever has been paid by the learned appellate Court that the property was in the name of petitioner. It is argued that the findings of fact as derived by the learned Rent Controller could not be reversed without any plausible and lawful justification which is badly lacking in this, case.

4. We have carefully examined the contention as agitated by the petitioner and also perused the order of learned Rent Controller and the judgment impugned. We have thoroughly gone through the entire evidence. It transpires from the scrutiny of record that the respondent has seriously contested the title and ownership of property which, according to him, belonged to one Nafisa Begum and Shahid Iqbal was neither competent nor authorised for its sale or transfer from whom it was allegedly purchased by the petitioner. It is also the case of respondent that neither any tenancy agreement was executed between the parties nor he had ever paid rent to the petitioner and as such the petitioner could not be termed as landlord as defined in section 2(f) of the Sindh Rented Premises Ordinance, 1979. In our considered opinion the evidence as led by the peitioner and discussed by the learned appellate Court cannot be considered sufficient to establish title or ownership of the property in dispute. In such view of the matter it has rightly been held that the question of title/ownership be got determined prior to seeking ejectment of the respondent. In absence of relationship of landlord and tenant between the parties the question of disputed title or ownership of the property in dispute is to be determined by a competent Civil Court as such controversies do not fall within the jurisdictional domain of the learned Rent Controller. It is well- settled by now that "the issue whether relationship of landlord and tenant exists between the parties is one of jurisdiction and should be determined first, in case its answer be in negative the Court loses scission over lis and must stay his hands forthwith". PLD 1961 Lah. 601 (DB). There is no cavil to the proposition that non-establishment of relationship of landlady and tenant as envisaged by the Ordinance will not attract the provisions of the Ordinance. In this regard we are fortified by the dictum laid down in 1971 SCM R 82. We are conscious of the fact that "ownership has nothing to do with the position of landlord and payment of rent by tenant and receipt thereof by landlord is sufficient to establish relationship of landlord and tenant between the parties", 1983 CLC 2808 but as mentioned hereinabove the petitioner failed to prove that rent was ever paid to him by the respondent. It hardly needs any elaboration that the requirement of the relevant law is that the learned Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not established his position as landlord beyond reasonable doubt. The petitioner has neither produced any tenancy agreement nor any evidence in writing showing that rent was being paid to him. No counter-foil of any receipt, any letter from tenant, any notice or any other document could be produced and in our considered opinion the oral version of landlord is not sufficient to hold that relationship of landlord and tenant existed between the parties. If any reference is needed 1983 CLC 613 can be referred. It may be pointed out that House Building Finance Corporation has no authority to confer ownership/possession of property in dispute in favour of the petitioner as pressed time and again. No legal infirmity whatsoever has been observed and, accordingly, the petition being devoid of merits is dismissed. The suit regarding determination of title/ownership, if filed be disposed of expeditiously being uninfluenced from the observations made by the appellate forum.