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First Rent Appeal No. 106 of 1980, decided on 27th October, 1981.

---S. 21‑Appeal‑Ejectment proceedings‑Personal requirement -Fact that landlord gifted some properties to minor daughters or a new property was purchased in name of his wife or he owned some other properties elsewhere, held, would not disentitle him from clai ming ejectment on ground of his personal requirement if otherwise its bona fides proved‑Landlord putting up with his family with his son‑in‑law for want of any accommodation of his own‑Bona fide personal requirement, held, proved.

----Ss. 15 & 21‑Appeal‑Ejectment‑Whether there was practice of collecting accumulated rent for several months and whether house in question comprises one unit or has six units as contended, case remanded to Rent Controller to decide issues and to see what would be reasonable accommodation for landlord without affecting his privacy or causing inconvenience to him in case house has more than one unit‑Application for ejectment, held, shall be granted if house is a single unit.

Wahid Bux Baloch for Appellant.

Ghulam Muhammad Durrani for Respondents.

Date of hearing : 27th October, 1981.

This is an appeal against the order, dated 12th November, 1980 passed by the learned Senior Civil Judge and Rent Controller, Jacobabad in Rent Application No. 8/81, dismissing the present appellant's application for ejectment which was filed on 4 grounds, namely, default in payment of rent for the period commencing from 1st July, 1.977 to 31st November, 1978, personal requirement, sub‑letting and causing damage to the pro perty. In support of the above application the appellant examined him self and P. W. 2 Rasul Bux Exh. 21, whereas all the respondents examined themselves. The learned Rent Controller as stated hereinabove dismissed the above application. The appellant being aggrieved by the above order has filed the present appeal.

2. (a) In support of the above appeal, Mr. Wahid Bux, learned counsel for the appellant had made following submissions

(i) That default stood proved inasmuch as respondent No. 1 remitted the rent for the period from July. 1977 to December, 1977 through the money orders Exhs. 47‑A and 47‑B.

(ii) That the personal requirement was also proved on the basis of the evidence on record.

(b) On the other hand, it has been urged by Mr. G. M. Durrani, learned counsel for the respondents that Wazir Muhammad a nephew and son‑in‑law of the appellant, who was collecting the rent was not examined and that there is nothing on record through ocular evidence to prove default. It was further urged by him that since the appellant owned numerous properties, situated in Sukkur and that the two properties have been gifted by the appellant to his two minor daughters and recently one big property has been purchased in the name of the appellant's wife, the appellant has failed to prove his personal requirement.

3. (a) Reverting to the first contention of Mr. Wahid Bux, it may be pertinent to observe that default was pleader) in para. 3 of the Rent Application, which was replied to by the respondents through para. 5. In para 5 of the written statement it was averred that the appellant's son‑in -law Wazir Muhammad had been collecting accumulated rent of 6 months and even of 8 months etc. and was issuing receipts. It is true that the appellant in his testimony has not been able to deny the above factum as he has deposed that his son‑in‑law Wazir Muhammad was collecting the rent, whom he has not examined as a witness. However, the burden of proof that there was any such practice was initially on respondent No. 1. It may be observed that Exbs. 47‑A and 47‑B clearly indicate that the rent for the period of 6 months was tendered by respondent No. 1, the factum and the rent for month to month was not paid stands proved by the above documents. It has been urged by Mr. Durrani, learned counsel for the respondents that since Wazir Muhammad was not examined as a witness by the appellant the respondent's testimony that Wazir Muhammad had been accepting accumulation rent remained unrebutted.

On the other hand it has been contended by Mr. Wahid Bux that since in para. 5 of the written statement the respondents had admitted that regular rent receipts were issued, it was for them to produce those rent receipts to prove the factum of the aforesaid alleged practice. The above contention is not devoid of any force. However, in my opinion it will be just and proper to remand the case to the learned Rent Con troller to allow the parties to produce the evidence on the question of the alleged practice. The respondents shall produce rent receipts before the learned Rent Controller.

(b) As regards the personal requirement, the reasoning on which the learned Rent Controller has declined to grant the rent application is not sustainable in law. The fact that the appellant had gifted two pro perties in favour of his two minor daughters or the fact that a new pro perty was purchased in the name of appellant's wife recently or the fact that the appellant owned some other properties in Sukkur would not dis entitle the appellant from claiming the ejectment on the ground of his personal requirement if otherwise bona fide and if it is proved. In my view, on the basis of the evidence on record the appellant's personal requirement stands proved. It has been proved that the appellant is putting up with his family with his son‑in‑law Wazir Muhammad, for want of any accommodation of his own. The finding on the above point of the Rent Controller is set aside and it is held that the appellant has been able to prove his bona fide personal requirement.

However, the question which requires consideration is; as to whether the house in question comprises of one unit as urged by the appellant or it has six units as contended by the respondents. The case is, therefore, remanded to the learned Rent Controller only on the question, as to whether the house in dispute has one unit or it has six units as alleged. If the learned Rent Controller comes to the conclusion that the house is of one unit, the appellant's application shall be granted, but in case he comes to the conclusion that the house has more than one unit, he shall decide, what would be reasonable accommodation for the appellant with out affecting his privacy or causing inconvenience to him.

4. The appeal is allowed and the order under appeal is set aside with no order as to costs. The case is remanded to the learned Rent Con troller on the above two points noticed hereinabove and not on any other point. The Rent Controller is also directed to finalize the above case within 3 months from the date of the receipt of this order

M. Y. H. Appeal allowed.

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