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First Rent Appeal No. 59 of 1986, decided on 24th September, 1986.

‑‑‑Ss . 2 (f) , 15 & 21(1)‑‑Relationship of landlord and tenant, proof of‑‑Tenant who had been paying rent to original owner of disputed premises and after his death to his legal heirs without challenging title of original tenant towards premises, held, would be debarred to challenge title of his subsequent landlord who had purchased premises from legal heirs of original owner through agreement of sale‑‑Finding of Rent Controller that relationship of landlord and tenant had been established between parties; was not open to exception in circumstances.

Atta Muhammad v . Taj Muhammad and another 1974 S C M R 346; M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others P L D 1966 (W.P.) Lah. 953; Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan P L D 1986 Kar. 74; Noor Muhammad and another v. Mst. Hajira and 6 others 1985 C L C 2085 and Province of Punjab through Education Secretary and another v. Mufti A. Ghani P L D 1985 S C 1 ref.

‑‑Ss. 15 & 21(1)‑‑Dispute over rate of rent‑‑Rate of rent alleged by landlord was unrebuttedly seconded by one of residents of locality and signatory of agreement of sale of premises in favour of landlord and by one of legal heirs of original owner of premises from whom landlord purchased premises‑‑Rent Controller in absence of any rebuttal on part of tenant, held, rightly accepted rate of rent alleged by landlord.

‑‑‑Ss. 15, 18 & 21(1)‑‑Ejectment on ground of default in payment of rent‑‑Presumption of notice‑‑Tenant of subsequent landlord not paying rent of premises even after institution of eviction petition against him with pretext that no notice under S. 18 of Ordinance XVII of 1979 was served upon him by subsequent landlord‑‑Tenant, held, was liable to be ejected even if no notice was served upon him, because institution of ejectment petition by landlord against him could be treated notice under that section.

Major (Retd. Muhammad Yousuf v Mehrajuddin and others 1986 S C M R 751 ref.

S. Faiq Hussain for Appellant.

Hassan Jaffar for Respondent.

Dates of hearing: 22nd, 23rd and 24th September, 1986.

The appeal was disposed of by the short order. The reasons for the same are hereby recorded.

The facts in brief are that the respondent filed eviction application on 21‑1‑1982 against the appellant on the grounds of default and personal bona fide requirement. He alleged that the appellant paid the rent upto December, 1980 but he failed to pay or tender the rent after that period. The rate of rent alleged by the respondent is Rs.200 p.m. He has further stated that he purchased the house from legal heirs of late Ahmad Ali Khan by way of agreement of sale dated 13‑11‑1976. The property was leased by the K . D . A . and was registered in his favour in January, 1981. He had given a notice to the appellant as required under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance. When the appellant committed default, he gave another notice on 4‑1‑1982 which was returned undelivered. In the written statement the appellant has denied the relationship of landlord and tenant between the parties and has also stated that no notice by the respondent about the transfer was served upon him. The rate of rent which was paid by the appellant to the deceased and thereafter to his legal heirs was Rs.75. On the pleading of the parties, the following issues were framed:‑

(1) Whether there is relationship of landlord and tenant between applicant and the opponent

(2) What is the rate of rent

(3) Whether opponent has committed default in paying the rent due

(4) Whether the premises in possession of opponent is required by applicant for his personal bona fide use

(5) What should the order be

The respondent /landlord examined himself and two witnesses in support of his case, one witness is about the agreement of sale and the other is Akbar Ali son of the deceased landlord and attorney of the legal heirs of the deceased.

The Rent Controller decided all the issues excepting issue No.4 against the respondent. The issue No.4 regarding the personal bona fide requirement of the landlord was decided in favour of the respondent and against the appellant. The application was disposed of by order dated 31‑10‑1983. A Review Application was filed by the appellant but that application was dismissed. The appellant challenged the order in appeal in this Court. The respondent also filed cross objection in regard to issues Nos. 2 and 3. The cross objection of the respondent was dismissed. The appeal filed by the appellant was accepted and order of the lower Court was set aside. The operative part of the order reads as under:‑

"In this matter, it cannot be said that justice has been done between the parties and that the case has been decided in accordance with law by the learned Rent Controller. In my view the best course to adopt in this matter is to set aside all the three orders of the Rent Controller i.e. two orders, dated 31‑10‑1983 and the order, dated 24‑11‑1983, and remand the case for fresh decision by another Rent Controller.

R.F.A. No. 971 of 1982 is allowed and both the orders, dated 31‑10‑1983 and the order, dated 24‑11‑1983 of the Vth Senior Civil Judge and Rent Controller, Karachi passed in Rent Case No. 271 of 1982 are set aside. There will however, be no order as to costs."

On remand of the case, the respondent did not lead any evidence. The appellant examined one witness Qazi Naseem Ahmad but his evidence has no bearing on the merits of the case. The learned counsel for the appellant has himself admitted that the worth of his evidence is nothing.

The learned Rent Controller decided only three issues. On issue No. 1 it has been held that there exists relationship of landlord and tenant between the parties. On issue No. 2 the finding of the Rent Controller is that the rate of rent of the disputed premises is Rs.200 p. m. The issue No. 3 about the default in payment of rent has also been decided against the appellant. The issue No. 4 was not decided on the premises that both the learned counsel had agreed to the proposal that first it is to be determined that whether there exists relationship of landlord and tenant between the parties. She did not dispose of this issue.

In view of such matter, I was inclined to remand this case to the Rent Controller for decision on issue No.4 but the learned counsel for the respondent does not press this issue and submitted that the appeal may be disposed of on the other issues decided by the Rent Controller.

The learned counsel for the appellant has contended that there does not exist relationship of landlord and tenant between‑the parties because the respondent has purchased the property from Ahmad Ali. But no title was passed on his as Ahmad Ali was not the owner. This contention has no force. The appellant has himself admitted that Ahmad Ali was his landlord and used to pay the rent to Ahmad Ali and after the death of Ahmad Ali, he used to pay the rent to the legal heirs of late Ahmad Ali. Once the appellant has admitted the title of Ahmad Ali, he has been bebarred to challenge the title of his landlord in the rent proceedings. The learned counsel has referred to the case of Atta Muhammad v. Taj Muhammad and another 1974 S C M R 346 but this authority is inapt. In the said case, the facts were distinguishable. In the said case it was held that a person who is mere licensee of an allottee under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 has no right to claim transfer. The learned counsel has also challenged Exh . A / 2, the sale agreement executed by the legal heirs of the deceased Ahmad Ali in favour of the respondent and Exh.A/3 lease executed by K.D.A. in favour of the respondent. The learned counsel has relied upon the case of M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others P L D 1966 (W.P.) Lah. 953 and stated that the agreement to sell does not create any right of title. The facts are distinguishable. He has also referred to the case of Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan P L D 1986 Kar. 74 and Noor Muhammad and another v. Mst. Hajira and 6 others 1985 C L C 2085. These authorities are not attracted to the facts of the present case. He has also relied upon the case of Province of Punjab through Education Secretary and another v. Mufti A. Ghani PLD 1985 S C 1 that the landlord has to satisfy the Rent Controller about his title. There is no quarrel with proposition of law. In the instant case, the respondent has proved through evidence that a valid title has passed on him. The appellant has admitted that he was tenant of Ahmad Ali Khan. He has also admitted in para. 2 of the written statement that he is tenant in respect of 1st floor. Thus, he has admitted the tenancy in dispute. In para. 7 of the written statement, he has admitted that he has been paying the rent to the heirs of the deceased landlord Ahmad Ali. Thus, it is established that the appellant was the tenant of Ahmad Ali Khan. The respondent in order to establish that he has purchased the premises in dispute from the legal heirs of the deceased Ahmad Ali Khan, has relied upon Exh.A/2 sale agreement executed by Akbar Ali son of deceased and attorney of the other legal heirs. Akbar Ali has appeared as a witness. He has corroborated the statement of the respondent.

The learned counsel for the appellant has stated that Akbar Ali was not the sole heir of the deceased but this fact is not material as Akbar Ali was attorney of the other legal heirs of the deceased and his position as an attorney has not been challenged by the appellant. The appellant in rebuttal could not produce the other legal heirs of the deceased to contradict the agreement. The K . D . A . has also executed the lease deed in favour of the respondent.

A.W. Abdul Sattar, a resident of locality and signatory to the agreement has proved the title of respondent. On the other hand there is the only statement of the appellant which is not corroborated by any other material. Thus, the finding of the Rent Controller on this issue is not open to exception.

As regards the rate of rent, the appellant has stated that the rate of rent is Rs.75 p.m. whereas the respondent has alleged that the rate of rent is Rs.200 p.m. P.W. Akbar Ali has stated in his deposition that the rate of rent is Rs.200 p.m. The appellant himself admitted that he used to pay the rent to the legal heirs of the deceased: Therefore, the statement of Akbar Ali has supported the contention of the respondent. The respondent has stated that he has purchased the premises in dispute in 1976, the appellant had been paying the rent at the rate of Rs.200 p.m. A.W. Abdul Sattar who is resident of locality and signatory to the agreement has also stated that the rate of rent is Rs.200 p.m. Thus, the Rent Controller has rightly held that the rent of the premises in dispute is Rs.200 p.m. The appellant has failed to show that the rent of the premises in dispute is Rs.75 p.m.

The next contention of the learned counsel for the appellant is that no notice of transfer of the premises in dispute was served upon the appellant. The appellant in his statement has admitted that the notice was refused by his brother. The respondent has stated that notice through registered post was sent to the appellant but the appellant had refused to take the delivery of the notice. The registered notice is on record. The respondent has deposed that after the transfer, the appellant was informed and thereafter he started making payment of rent and thereafter the appellant stopped making payment of rent. Then the notice was issued to him which was not accepted by his brother. The notice was sent on the proper address and this address has not been disputed by the appellant. It is further contended that even if no notice was served upon the appellant, he got notice of the transfer when the application for eviction was filed against him. He has relied upon the case of Major (Retd.) Muhammad Yousuf v. Mehrajuddin and others 1986 S C M R 751. In para. 7 of the judgment it has been held that 'the rent having admittedly not been paid after the institution of the application for eviction which has also been treated as notice under section 13‑A the respondents were liable to evicted'. It is an admitted position that even after institution of the application for eviction the appellant has not paid any rent to the respondent uptil now. Thus, respectfully relying upon the authority of the Supreme Court, it is to be held that the appellant got notice of transfer after the institution of the eviction application. The appellant has not paid any rent to the legal heirs of the deceased. During this period he has not paid any rent to the respondent. He is not claiming to be in possession of the disputed premises in his own right.

All these facts would clearly constitute default. As such the finding of the Rent Controller on question of notice and default is affirmed. There is no force in this appeal. The same is dismissed. The appellant is allowed three months' time to hand over the vacant possession of the premises in dispute to the respondent. The rent deposited by the appellant as per direction of the Court should be paid to the respondent.

H.B.T. Appeal dismissed.

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