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First Rent Appeal No. 118 of 1982, decided on 21st December, 1982.

‑‑ Ss. 15 & 2l‑Appeal‑Ejectment‑Default in payment of rent Accumulated rent accepted on behalf of landlord neither by virtue of any arrangement between parties nor on choice of landlord but with reluctance on account of tenant's irregularity in making payment‑Finding that tenant defaulted upheld.

‑‑ Ss. IS & 21‑Appeal‑Ejectment‑House in dispute a single unit and not big enough to accommodate six families presently occupied by tenants, who happened to be Hindus, by setting up tempor ary portions just to live jointly‑Landlord a Muslim unable to live in a portion as occupied by Hindu tenant or to have privacy or to bear intrusion from persons belonging to different religion and likely to be subjected to serious inconvenience‑Whole of house, held, must go to landlord‑Issues of default in payment of rent and personal requirement going in favour of landlord‑Ejectment order, upheld.

Farkhand Ali for Appellant.

Wahid Bux Baloch for Respondent.

Date of hearing : 16th December, 1982.

The present appeal is a second round of litigation between the parties in this Court. Having failed to secure the ejectment of the appellants from the disputed house bearing C. S. No. 927, Ward No. 5. Teoram Bridge, Jacobabad, the respondent had preferred first appeal from the order, dated 12th November, 1980 of the Senior Civil Judge and Rent Controller,. Jacobabad, whereupon this Court remanded the case to lower Court for decision on two points : firstly whether there was practice of collecting accumulated rent for several months and secondly whether the disputed premises is one unit or it comprises six units. The learned Rent Controller after allowing the parties to produce evidence on the said points came to the conclusion that there was no practice of collecting accumulated rent between the parties and that the house in dispute is a single unit house. These findings have been challenged in this appeal.

2. The learned counsel for the parties submitted their arguments in support of their respective case. I have also gone through the material on' which the lower Courts judgment is based.

3. As for the first point while remanding the case to the lower Court, it was specifically ordered that the respondents shall produce rent receipts before the learned Rent Controller. It was the appellants case in reply to the respondents ejectment application that respondents son‑in- law Wazir Muhammad used to collect rent for several months together and issue such receipts vide para. 5 of their written statement. Therefore, the burden was on them to prove this point. As is disclosed in the impugned order, the appellants in attempt to prove this point produced their own affidavits, stating therein that there was practice of collecting accumulated rent. They however, tailed to substantiate their claim by producing the receipts alleged to be issued by the respondents son‑in‑law. On the contrary it was admitted by them in the cross‑examination that there was no such written agreement between the parties nor the agree ment of tenancy makes mention of such practice. No doubt Wazir Muhammad who has been examined in support of the respondents case has stated in his affidavit that the appellants had been irregular in paying the rent so much so that he had to approach them several times even for payment of accumulated rent. This shows that the accumulated rent was sometimes accepted on the respondents behalf but it was neither by any arrangement between the parties nor it was the choice of the respondent. It was accepted with obvious reluctance on account of the appellant irregularity in making the payment. Thus, the Rent Controller has come to right conclusion on this point. Even if it be assumed that irregular payment of rent by the appellants had ripened into regular practice, this finding would not alter the relief already granted to the respondent by holding that he has proved his case for ejectment of the appellants on the ground of personal requirement:

4. So far the second point is concerned, although the parties have advanced conflicting claims, the respondents trying to show that the house in dispute is one unit premises whereas the appellants trying to prove the same to have six units, the learned Rent Controller has resolved the issue by inspecting the house personally and basing his conclusions mostly on his own observations. I see no reason to doubt the Rent Controller's inspection note containing his personal observations about physical geography of the disputed premises. I may .refer to the relevant portion of the learned Rent Controller's judgment which reads as under :

"The house in dispute has big room which is partitioned by small wall into two portions with one verandah and on north side in front of the kitchen bath and laterine there is one small room there is a staircase for going on the upper roof from the verandah. On the roof of the building there is a room constructed on the lower hall and this room has also have been partitioned with the hard board, and the other portion of the roof is privately arranged for kitchen bath other purposes."

5. After considering the evidence on record the learned Controller came to the conclusion that the house in dispute is a single unit. This has been admitted by the appellants in their written statement filed by them in reply to the ejectment application. ,Apart from their admission as observed by the learned Controller, the house has one gate for entrance one kitchen, one bath and latrine. He also noticed that the house is not big enough to accommodate six families even though the present tenant who happen to be Hindus have. set up temporary portions both on ground floor and upper floor of the house just to live jointly. He also correctly observed that the respondent/landlord is a Muslim and he cannot, live in a portion to be occupied by the appellants who are Hindus. In that event there is no doubt the respondent would not be able to have privacy nor would it be possible for him to bear the intrusion from the persons belonging to different religion. I entirely agree with the learned Con troller that the house in dispute is one unit. Even if be held to be divided in a number of portions, the said portions cannot by any stretch o imagination be treated as independent units when there is only one common gate for entering into the house and one kitchen, one bath and one latrine. With the accommodation and physical features of the house proved on record, the whole of the house must go to the respondent or else on one hand he would be subjected to serious inconvenience and on) the other he would have no privacy.

6. For above reasons there is no merit in appeal which is dismissed with costs. The appellants shall vacate the house and put the respondent in possession within two months of this order failing which the Rent Controller, would straight away' issue writ of possession against the appellants.

M.Y.H. Appeal dismissed.

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