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Civil Petition No. 593‑K of 1984, decided on 27th February, 1986.

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Questions as to relationship of landlord and tenant‑‑Demised premises belonging to Trust‑‑One tenant claiming to have become landlord by virtue of a will left by original tenant in her favour and, therefore, filing application for ejectment of other tenants to whom property was sublet by original tenant‑‑Ejectment application allowed by Rent Controller‑‑High Court granting said one tenant ownership rights by inheritance‑‑Petitioner asserting that entire claim of respondent in ejectment application as well as in her evidence was based on basis of alleged 'will' and not ownership rights; that High Court erred in granting such a declaration in her favour; that even if that be assumed to be valid in law, tenancy rights could not pass on respondent and that since original tenant died issueless, tenancy rights devolved on Trust‑ Points raised deserving consideration‑‑Leave to appeal granted.

Syed Abbas Zia, Advocate Supreme Court with Muzaffar Hassan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 1986.

ABDUL QADIR SHAIKH, J.‑‑

Petitioner

Trust claims to be the owner of the premises in question which were let out to Mst. Gandi Hajiani on monthly rent. Mst. Ghafooran the first respondent herein, claimed rights of Mst. Gandi Hajiani in the premises on the basis of "Will" said to be executed by her and filed ejectment application against Abdul Waheed, predecessor of respondents 2(a)(h), on the ground that being a tenant he had failed to pay any rent for the premises. In these proceedings, petitioner Trust was joined as a party, and they claimed that after the death of Mst. Gandi Hajiani, the tenancy terminated and the tenancy‑rights reverted to the Trust. It was further pleaded that the Will was neither genuine nor was it valid in law; in any case Abdul Waheed was a tenant of the petitioner Trust which was entitled to receive rent.

2. The Rent Controller, by the order, dated 5‑12‑1982, allowed the application of Mst. Ghafooran and directed the eviction of respondents 2 (a) to (h). This order led to two appeals, one by the tenants and the other by petitioner. It was, inter alia, pleaded on behalf of the petitioner that the tenancy rights in Mst. Gandi Hajiani's favour could not devolve on Mst. Ghafooran by way of a Will even if it be valid. In this regard and also with regard to the facts proved in evidence learned Judge held as follows:‑

"The admitted position is that Mst. Gandi Hajiani was a tenant of the land which belonged to the Trust. Mst. Gandi Hajiani constructed huts and let them out to various persons to which the Trust never objected and knowing it fully continued to realise rent for land from Mst. Gandi Hajiani. The contention of the learned counsel for the Trust seems to be that as Mst. Gandi Hajiani was a tenant of the land after her death the entire property reverted back to the Trust which became the owner of the construction as well. The but was constructed on the rented land and till such time it is not removed by the tenant merely by the death of the tenant the structure will not vest in the landlord. The structure will remain on the land which is owned by the tenant or his legal heirs. It may be possible to contend that the Will

did not confer any valid right on Mst. Ghafooran the respondent No. 1 but this may not be the end of the matter Mst. Ghafooran is the maternal‑granddaughter of Mst. Gandi Hajiani. No evidence has been produced to show that she did not have any right of inheritance in the property. Therefore on the basis of the relationship of respondent No. 1 with Mst Gandi Hajiani and in the absence of any evidence to disprove his title she became one of the heirs of Mst. Gandi Hajiani and thus inherited the property viz. the hut. In my opinion the definition of the word 'tenant' as given in the Urban Rent Restriction Ordinance 1959 may not be relevant for the purposes of this case because the dispute between the parties is in respect of the but and not the land. The respondent No.1 may not become a tenant of the land but her rights in the structure are not disputed. It is the definition of the word 'landlord' which is more relevant for purposes of date reminding the relationship between the respondent No.1 and the appellant.

From the evidence produced by the parties it is clear that Abdul Waheed had admitted that he was paying rent to Mst. Gandi Hajiani and after her death he started paying rent to the Trust. This was not permissible as at no stage the huts had been transferred in favour of the Trust.

< [if supportLists]>3. On this view of the case learned Judge dismissed both the appeals by the Judgment, dated 2‑10‑1984.

4. In support of this petition for leave to appeal from the judgment of the High Court, Syed Abbas Zia, learned counsel for the petitioner submits that the entire claim of Mst. Ghafooran in the ejectment application as well as in her evidence was based on the basis of the alleged "Will", and not the ownership rights through inheritance, and the learned Judge in the High Court has erred in granting such declaration in her favour. Learned counsel further submits that, even on the basis of the "Will", even if that be assumed to be valid in law, the tenancy rights could not pass on to Mst. Ghafooran, and since Mst. Gandi Hajiani died issueless, the tenancy rights devolved upon the petitioner Trust.

5. The aforesaid points, amongst others, deserve consideration. We, therefore, grant leave and allow the petition. Security Rs.500.

M. Y. H. Leave granted.

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