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First Rent Appeal No.1068 of 1986, decided on 18th January, 1987.

---Ss.15 & 21---Default in payment of rent--Tenant questions entitlement of previous as well as present landlord to ownership property in dispute and his right to recover rent--Ownership of previous landlord established beyond doubt--Record showing that previous landlord had sold property to present. landlord and notified this fact to tenant when both had jointly requested him to attorn to new landlord--Tenant failing to tender rent and committing default in payment of rent--Order of Rent Controller, ejecting tenant on ground of default in payment of rent, maintained--Tenant, held, was at liberty to pursue any other remedy which might be available a to him so far as question of title to property was concerned.

Syed Nasiruddin for Appellants.

I. M . Patel for Respondent.

The facts of this first rent appeal are rather involved. The appellant occupies the disputed premises which are situated on Plot No.1444, Jinnahabad-2, Lyari Quarters, Karachi. There have been litigations between the appellant anti the predecessor-in-interest the respondent/landlord.

2. The facts revealed by the order of the Rent Controller are that the present appellant applied for fixation of rent before the Rent Controller and the fair rents were fixed. At that time the property was still with the previous landlord. This landlord died and his son Sher Ali became the owner of the property Sher Ali filed ejectment proceedings against the present appellant and succeeded in obtaining the ejectment order against the appellant.

3. It appears that Sher Ali thereafter sold the property to the present respondent Khan Muhammad. This Khan Mohammad thus became the owner of the property by a registered Lease Deed dated 22-11-1980. The plot on which the premises are built has been duly transferred in favour of the respondent /landlord by the K.M.C. On the strength of this registered document by the K.M.C., the respondent claim" the ownership of the property and so far as the question of proceeding before the Rent Controller is concerned, this appears to be quite sufficient to establish his entitlement to recover rents. After selling the property to the respondent the previous landlord Sher Ali served a notice dated 1-9-1982 on the appellant informing him that he had sold the property and he should attorn to the new landlord.

4. It appears that the appellant did not comply with this request. On 6th December, 1982 Sher Ali and the present landlord/ respondent jointly sent another. notice through their Advocate requesting the appellant to pay rents to the respondent as the property had changed hands and was owned by the respondent. This notice also had no effect. The respondent, therefore, filed the application for ejectment before the learned Rent Controller on 14-3-1983 alleging default in payment of rents, taxes and charges and praying for the ejectment of the appellant.

5. The appellant has taken up a plea that the present respondent is not a lawful owner of the property, that the property belongs to the K.M.C. and the present respondent is a trespasser.

6. As stated above there is a registered Lease Deed in favour of the respondent by '1. C. In this situation the refusal to pay rent and raise an objection to the title: of the landlord /respondent in the Court of Rent Controller is not a genuine grievance.

7. This would have concluded the case, but there is one more important factor to be considered. The appellant has filed a regular suit being Suit No.3574 of 1982 for a relief of "permanent injunction restraining the defendants, his agents, servant and any other person or persons working under him and acting on his behalf from ejecting, dispossessing and disturbing the peaceful possession of the plaintiffs in respect of tenements on Plot No.86 (New No.87) Jinnahabad No.2, Lyari Quarters, Herchandrai Road, Karachi. " This suit is still pending.

8. The learned counsel for the appellant again wants to argue that the respondent is not the lawful owner of the house and as such not entitled to recover rents. This would require investigation of title of the respondent and in this connection such material as is riot a part of the record, would have to be investigated. Moreover at the time when the learned Rent Controller examined this plea, he possessed no such powers to examine title of the landlord and if such a plea was raised, all that he could do, was to refer the parties to the regular Civil Court. But the learned counsel for the respondent has pointed out that this plea has been examined by the regular Court also and in any event the appellant is stopped from raising this plea again and again.

9. Reference is made to Suit No.3574/1982. This suit was filed by the appellant for "permanent injunction restraining the defendants, his agents, servant and any other person or persons working under him and acting on his behalf from ejecting, dispossessing and disturbing the peaceful possession of the plaintiffs in respect of the tenements on Plot No.86 (New No.87) Jinnahabad No.2, Lyari Quarters, Herchandrai Road, Karachi".

10. In para-1 of the plaint the appellant had himself accepted that he was tenant in respect of this plot. I need not go into full details of this litigation. Suffices to say that Issue No.5 was struck by the learned VIIth Civil Judge to the effect "whether the plaintiff can refuse to pay rent to the defendant " This issue was discussed at length in the judgment. The relevant para of the discussion on this issue is reproduced below:-

"So the plaintiffs are the tenants of the defendant. The defendants have not been dispossessed of the plot in suit by the K.M.C. The plot in suit has not been. leased out to the plaintiffs, K.M.C. has been accepting taxes in connection with the plot in suit from the defendant. So definitely the defendant is entitled to realise rent in connection with the plot in suit from the plaintiffs as the plaintiffs continue to be tenants of the defendant. So under these circumstances the plaintiffs cannot refuse to pay the rent to the defendant. Accordingly my finding is in negative so far this issue is concerned."

11. I am informed that an appeal against the judgment was also dismissed. In my opinion the above material was enough for the Rent Controller to hold that there was a prima facie case in favour of the landlord or his transferee to claim rents from the appellant. This is exactly what the learned Rent Controller has done. The learned Rent Controller in his order has relied on this and other material and has come to a conclusion that the respondent was the lawful owner of the premises in case.

12. The learned counsel for the appellant wants me to reverse these findings and examine the title of the respondent and record a finding that due to imperfect or defective title of the respondent, the appellant is absolved from making any payment to the respondent. This will not only be beyond the powers under the Rent Act, but also contrary to the finding recorded in a regular suit on the basis of the judgment in Suit No.3574/Lg82 and indeed on account of clear admission made in that suit by the appellant in his plaint, affidavit e and application for interim injunction, the learned Rent Controller has rightly come to the conclusion that the ownership of the previous landlord was established beyond doubt. The previous landlord has sold the property and notified this fact to the appellant and both have jointly requested the appellant to attorn to the new landlord. He is still resisting and has failed to tender rents to the landlord and thus committed default in payment of rents. The finding on Issue No.2 are thus unexceptionable.

I do not see any reason to reverse these findings and the appellant may pursue any other remedy which may be available to him so far as the question of title to the property is concerned. The appeal is, therefore, dismissed.

M.Y.H./A-130/K

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