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First Rent Appeal No. 102 of 1981, decided on 28th May, 1985.

Sind Rented Premises Ordinance (XVII of 1979)--

---S. 21(1)--Ejectment--Relationship of landlord and tenant--Contention by tenant that property purchased by landlord was different from tenement in his occupation; purchase of tenement in question by landlord was yet to be established by landlord and that Rent Controller misconstrued landlord's possession--Counsel for both parties jointly making statement that case be remanded to Rent Controller to determine the issue on basis of evidence or record and further allowing parties, an opportunity to adduce additional evidence--Order accordingly.

Khuda Bux Omrani for Appellant.

A.Z.Shams for Respondent.

Date of hearing: 25th April, 1985.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is directed again the order dated 28-1-1981 of the learned Xlth. Senior Civil Judge and Rent Controller, Karachi whereby the Ejectment Application No. 3039 of 1975 was dismissed.

The facts which give rise to this appeal are that the appellant is landlord of all the super-construction of five rooms standing on old House No.943-944 (Excise and Taxation No. A7-lOS-4) having purchased the same from the previous owner Mst. Khadija Bibi widow of late Nazir Ahmad far the price of Rs.12,250. The respondent was tenant in respect of the premises in his possession on the .aforesaid plot of land at the rate of Rs. 35 per month and upon purchase of the said property by the appellant, the respondent has become a tenant of the appellant of the disputed premises in his possession. The appellant sent a statutory, notice under section 13 of the repealed Sind Urban Rent Restriction Ordinance but the respondent refused to accept the same which was returned undelivered. The appellant filed Ejectment Application No. 3039 of 1975 against the respondent on the ground of default with effect from 1st February 1974. The respondent filed written statement and resisted the ejectment application in which he inter alia pleaded that there was no relationship of landlord and tenant between the parties and it was also pleaded that the respondent became owner of the construction in his own right.

On the pleadings of the parties, the following preliminary issues were framed on 2-10-1977:-

(1) Whether there exists relationship of landlord and tenant between the parties

(2) Is the application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 maintainable

The appellant besides himself examined P.W. 2 Rashid Ahmed and P.W. 3 Saeed Ali. The respondent besides himself examined D.W.2 Ghulam Hussain, D.W.3, Sherullah Khan and D.W.4 Liaquat Ali. The learned Rent Controller, after recording the evidence and taking into consideration the arguments of the learned counsel for the parties, held that there was no relationship of landlord and tenant between the parties and dismissed the rent application vide order dated 28-1-1985. The appellant being aggrieves against the above order has preferred this appeal on the grounds mentioned in the memo. of appeal.

Mr. Khuda Bukhsh Omrani, learned counsel for the appellant, has contended that the finding of the learned lower Court is contrary to the evidence on record. On the other hand Mr.A.Z. Shams, learned Advocate for the respondent has contended that the finding of the learned Rent Controller is in accord with the evidence on record.

I have taken into consideration the arguments of the learned counsel for the parties and have perused the Record and proceedings of the Rent Case No.3039 of 1975. I have also perused the photostat copy of the agreement of tenancy between Predecessor of the appellant and Mat. Khurshid Begum. It seems that the house bearing No. 43 Agra Taj Colony, Karachi is divided into separate portions known as 943/A, 943/13, 943/C and 943/D. Mr. A.Z. Shams, learned counsel for the respondent has contended that it had not been established that the property purchased by the appellant was the same which was in the occupation of the respondent. On the other hand the learned counsel for the appellant was unable to refer me of evidence on record from A which it could be positively concluded that tenement in occupation of the respondent was included in the property purchased by the appellant from Mst. Khadija Bibi. Since the relationship was strongly disputed by the respondent in his written statement and it was grounded in the plea that the property purchased by the appellant was different from the tenement in his occupation, in these circumstances it Was for the appellant to establish the fact that the tenement in occupation of the respondent had been purchased by him from Mst. Khadija Bibi. In view of the fact that the learned Rent Controller has misconstrued the landlord's possession, the learned counsel for both the parties jointly submitted statement that the case be remanded to the learned Rent Controller to determine this issue on the basis of evidence on record and further allowing the parties an opportunity to adduce additional evidence if so desired. I consider the request is appropriate. In view of the circumstance detailed above, I would order accordingly. The learned Rent Controller should give priority to this rent case and decide the same within a period of six months from the date of receipt of this order and R and P from this Court. In the circumstances of the case, the parties are left to bear their own costs.

M . Y . H .

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