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First Rent Appeal No.598 of 1985, decided on 22nd January, 1987.

‑‑‑Ss. 15 & 21‑‑Ejectment of tenant‑‑Dispute of title over property‑ Relationship of landlord and tenant‑‑Onus of proof‑‑Documents of title 4n favour of "landlord"‑‑Possession of premises with alleged 'tenants'‑ Close relationship between parties‑‑No evidence on record except word of person claiming to be landord that persons in possession of premises had come in occupation of house as tenants by agreement‑‑Any amount of evidence to the title, held, would not necessarily lead to irresistible conclusion that there was relationship of landlord and tenant between person holding the title and the person in occupation of demised premises, particularly where relationship between parties was very close‑‑Evidence on record not establishing relationship of landlord and tenant‑‑Where evidence on record falls short of proving relationship of landlord and tenant, issues of default in payment of rent and subletting of premises would not hold ground‑‑Order of ejectment being not sustainable was set aside by High Court in its appellate rent jurisdiction.

K.B.Bhutto for Appellants.

Ch. Zafar Aziz Bajwa for Respondent.

Date of hearing: 18th January, 1987.

The appellant Mst. Anis Bano is a widow of one Wali Ahmed, and the appellants Nos. 2, 3 and 4 are her minor daughters. They have been ordered to vacate House No.A/28 in Block‑2, Improvement Scheme No.24 Gulshan‑e‑Iqbal, Karachi by order dated 21‑10‑1985 made by Vth Senior Civil Judge/ Controller, Karachi (East) in Rent Case No.2788/78 (Old)/659 of 1985 (New) filed by the respondent Mst. Rabia widow of Muhammad Ismail. They have preferred this appeal against the order of ejectment.

The respondent's case, briefly stated, is that she is the owner of the house and she left it out to the late Wali Ahmed, who was her brother, on compassionate ground, in August, 1977 and he died on 18‑12‑1977. It is alleged that after the death of Wali Ahmed, his wife locked the house and went to live in the house of her parents alongwith her children and later sublet the house to Dr. Syeda Fatima Sadiq and her daughter Najma but did not pay rent from December, 1977 onwards.

The ejectment application was filed on 31‑5‑1978. The appellants resisted their ejectment denying the relationship of tenant and landlord and claiming the house as their property inherited from Wali Ahmed. The parties adduced evidence. The respondent filed her own affidavit. On the other side, the appellant Mst. Anis Bano filed her own affidavit and two other affidavits sworn by Abdul Mughni and Waheedur Rehman. The learned Controller struck four issues for determination, one relating to the relationship of landlord and tenant between the parties, another to default in payment of rent, third one as regards alleged subletting of premises and the last one regarding the order to be passed. All the three issues were decided against the appellants and in favour of the respondents and in consequence thereof the order of ejectment was passed.

The learned counsel for the appellants has urged that relationship of tenant and landlord between the parties was not established and issues in respect of default in payment of rent and subletting did not arise. According to him the house was purchased by late Wali Ahmed in the name of the respondent Mst. Rabia as a Benami purchaser as a matter of respect for her, being his sister, and he was living there alongwith his family members and there was no question of tenancy between them. On the other hand, the learned counsel for the respondent has contended that the respondent has adduced oral as well as documentary evidence in proof of her claim that she is the owner of the house and it may, therefore, be assumed that Wali Ahmed and, after his death, his wife and children remained in occupation of the t house as her tenants and they were liable to be ejected from there as they had‑not paid the rent after his death.

It is apparent from the pleadings of the parties and the evidence adduced by them that there is serious dispute between them as regards title over the property. There are certain documents on the record relating to the respondent's title over the house. On the other hand, the possession of the house is admittedly with the appellants. There is no documentary evidence that Wali Ahmed had come in occupation of house as the tenant. There is even no oral evidence except the word of the respondent Mst. Rabia that Wali Ahmed had come in occupation of house as the tenant by agreement. Any amount of evidence to the title does not necessarily lead to irresistible conclusion that there was relationship of landlord and tenant between the person holding the title and the person in occupation of the demised premises, particularly in the circumstances where the relationship between the parties is so close as in the instant case. Since the appellants denied the relationship of tenant and landlord, the respondent had to establish that relationship if any, by positive evidence. There is no evidence, except the word of the respondent, that the appellants or Wali Ahmad had ever paid or promised to pay any rent to the respondent. Obviously, the evidence on record does not establish that there was relationship of tenant and landlord between the parties. The question of title could not have been determined by the Controller and it could be agitated before any other forum. Since the evidence on the record falls short of proving the relationship of tenant and landlord between the parties, the issues of default in payment of rent and subletting of the premises do not hold ground Accordingly the impugned order of ejectment dated 21‑10‑1985 is not sustainable and is set aside. Appeal is allowed with costs.

A.A./A‑3/K. Appeal allowed.

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