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First Rent Appeal No.378 of 1984, decided on 17th May, 1987.
-----Ss.2(f)(j), 15 & 18--Transfer of ownership of premises--Relationship of landlord and tenant--Provisions of S.18 dealing with transfer or change of ownership of premises from old landlord to new one, held, would not be applicable where new landlord was not successor-in- interest of old landlord--Premises in dispute originally transferred in favour of old landlord were subsequently cancelled from his name and were transferred in favour of appellant/new landlord--Ownership of premises in dispute was never transferred or changed by old landlord in favour of appellant /subsequent transferee--Appellant in circumstances could neither be considered successor-in-interest of old landlord nor respondents who were not recorded tenants of Custodian of Evacuee Property could be considered tenants under him--Relationship of landlord and tenant was not established between parties in circumstances.
Muhammad Maqeem Baig for Appellant.
Rehmat Elahi for Respondents.
Date of hearing: 8th March, 1987.
This appeal is directed under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) against the order dated 16-2-1984 passed by the VIIth Senior Civil Judge-Rent Controller, Karachi whereby he dismissed the eviction application filed by the appellant against the respondent No.1 on the ground of default in payment of rent with effect from 3-5-1971. The respondent No.1 was ex parte. The respondents Nos.2 and 3 were impleaded on their own application. They contended that the eviction application was barred by Section 30 of the repealed Displaced Persons Act and section .18 of the Ordinance. They further contended that Mst.Mariam Bi was the owner of the premises in dispute and they had taken the premises on rent from her sometime in August or September, 1966 and had been paying rent to her at the rate of Rs.40 per month. They further contended that in January, 1972 they received a notice from the appellant and thereafter they started depositing rent in the name of Mst.Mariam Bi and the appellant. The appellant repeated the same facts in his affidavit-in-evidence that respondent No.1 was the recorded tenant and the respondent No.1 has transferred the right of tenancy to respondent No.2.
The subject-matter of this appeal is G/3 or R. B.6/106, Custodian No.(II-A-107) Arambagh, Karachi which was transferred in favour of ' the appellant by the Settlement Department vide P.T.D. dated 3-5-1971.
It is the case of respondents 2 and 3 that the property in dispute was transferred to Mst . Mariam Bi vide P. T . D . dated 28-1-1960. The P.T.D. in favour of Mst.Mariam Bi was cancelled and the property in dispute was transferred to the appellant vide P. T. D . dated 3-5-1971. The appellant served notice dated 14-1-1972 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 upon the respondent No.1 which notice was returned unserved. The appellant served notice dated 25-1-1972 under Section 30 upon the respondents 2 and 3 in which it was alleged that respondents 2 and 3 were not the tenants of the Custodian, as such they could not be tenants of the appellant and they were called upon to pay mesne profit at the rate of Rs.5 per diem with effect from 3-5-1971. On 21-9-1976 the appellant filed eviction application against the respondent No.1 on the ground of transferring the right of tenancy to respondent No.2 and default in payment of rent since 3-5-1971.
The Controller framed the issues:-----
"(1) Whether this case is not maintainable
(2) Whether there exists relationship of landlord and tenant between the applicant and Opponents No.2 and 3
(3) Whether the opponents No.2 and 3 are sublettee of the premises in question
(4) Whether the opponents No.2 and 3 are defaulters in payment of rent
(5) What should the order be '
The issue No.1 was answered in the negative, issue No.2 was answered in the affirmative, Issue No.3 was answered in the negative issue No.4 was answered in the negative and the eviction application was dismissed.
Mr.Mirza Mohammad Moqeem Baig the learned counsel for the appellant has contended that the finding of the Learned Controller to the effect that the respondents 2 and 3 are statutory tenants of the appellant is contrary to law. The other contention is that the respondents 2 and 3 committed default in payment of rent with effect from 3-5-1971 till 31-10-1971.
On the other hand Mr. Rehmat Elahi the learned counsel for the respondents 2 and 3 has submitted that the order is in accord with the evidence on record.
The Controller found that prior to the allotment of the premise in dispute in favour of the appellant, the respondents 2 and 3 were inducted as tenants by Mst.Mariam Bi and after the allotment in favour of the appellant, they became statutory tenants of the appellant. I am unable to agree with this finding. The respondents 2 and S were inducted as tenants by Mst.Mariam Bi in respect of the premises in dispute. They must fail to stand by such title as may be possessed by Mst.Mariam Bi. Therefore, with the cancellation of P.T.O. in favour of Mst.Mariam Bi, the tenancy created by Mst.Mariam Bi in favour of respondents 2 and 3 must necessarily come to an end for there is no method by which it can be said that respondents 2 and became the tenants of the appellant.
Mr.M.M.Baig has contended that the respondent No.1 was the statutory tenant. This contention is devoid of force for more than one reason. Firstly, it is an admitted position that the respondent No.1 left the premises in 1956 and, secondly, on the date of its transfer in favour of the appellant, he was not in possession of the premises in dispute.
The provisions of Section 18 of the Ordinance are not attracted to the facts of this case. Section 13-A of the repealed Ordinance or Section 18 of this Ordinance provide that where ownership of a premises in possession of the tenant has been transferred by sale, gift; inheritance (by any other manner) or by such other mode, the new owner shall send intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of Section 15 of the Ordinance, if the rent due is paid within thirty days from the date when the intimation, should, in normal course, has reached the tenant. The section envisages a tenant, his landlord and transfer of ownership from that landlord to a new landlord. It has no application when the landlord is not a successor-in-interest of the old landlord. In my opinion transfer contemplated is in any manner whatsoever which would include an independent transfer in favour of a person and not necessarily a transfer between two landlords, the old and new. In my view transfer from one person to another is contemplated by Section 1 irrespective of its mode in between an existing tenant's landlord to a new landlord.
The result is that respondent No.1 was not the recorded tenant of the appellant as on the date on which the appellant filed his eviction application because he had already parted with the possession in 1956. The respondents 2 and 3 were not the recorded tenants of the Custodian but they were inducted by Mst.Mariam Bi, as such they are not the tenants of the appellant. The eviction application stands dismissed as not maintainable against them.
The appeal is dismissed with the above observations that there existed no relationship of landlord and tenant between the appellant and the respondents 2 and 3. In the circumstances of the case, the parties shall bear their oven costs.
H . B . T . / P.-137 / K Appeal dismissed.
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