Find a Lawyer

First Rent Appeal No. 34 of 1984, decided on 31st August, 1986.

‑‑Ss. 2(b)(f)(j), 15 & 21(1)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 30‑‑Relationship of landlord and tenant‑‑Dispute regarding ownership of premises‑‑Jurisdiction of Rent Controller‑‑Disputed premises admittedly transferred by Settlement Authorities in favour of respondent who claimed himself to be sole owner and landlord thereof‑‑Rent Controller, in matter of determining ownership, held, could not go beyond transfer order of Settlement Authorities‑‑In case where occupants of such property were claimed by subsequent transferee 'to be his tenants, who themselves claimed their right in that property, such dispute between parties, could be decided by Civil Court only and Rent Controller would have no jurisdiction in that respect.‑‑[Jurisdiction].

‑‑‑S. 2(f)(j), 15 & 21(1)‑‑Relationship of landlord and tenant Creation of‑‑Relationship of landlord and tenant between parties, held, could be created either by statute or by contract whether oral or in writing Mere fact that respondent had become owner/landlord of disputed premises after its transfer in his favour, would not ipso facto create relationship of landlord and tenant between parties.

‑‑‑Ss. 2(f)(j), 15 & 21(1)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑‑Statutory tenancy‑‑Creation of‑‑Where occupants of property in dispute were tenants before its transfer to respondent /subsequent purchaser, such occupants would become statutory tenants of respondent by virtue of S. 30 of Act XXVIII of 1958‑‑But where respondent himself not claiming any right against appellants /occupants under that section, such rights, held, could not be forcibly conferred upon respondent either by Rent Controller or by High Court.

‑‑‑Ss. 2(f)(j), 15 & 21(1)‑‑Relationship of landlord and tenant‑‑Burden to prove‑‑In case there was neither any written agreement of tenancy between parties nor any documentary evidence to show, payment of rent by occupants to landlord, burden of proof in such case, held, would lie upon landlord to prove existence of relationship of landlord and tenant between parties.

‑‑‑Ss. 2(f)(j), 15 & 21(1)‑‑Respondent/transferee of premises in dispute failing to prove existence of relationship of landlord and tenant between him and appellants/occupants who themselves were claiming rights in premises in dispute, jurisdiction of Rent Controller in' such case, held, was ousted and parties could seek redress in civil Court.

Lal Muhammad for Appellant.

Muhammad Aslam Bhutto for Respondent.

Date of hearing: 12th August, 1986.

I propose to dispose of both these rent appeals by this order as not only the respondent/ applicant in both the appeals is same but the issues of facts and law arising out of them are also common.

The brief facts leading to these appeals are that the respondent/applicant admittedly purchased evacuee property bearing D.S. No. 166 Kandhkot in open auction held on 20‑10‑1964. After full payment the record was changed in his favour on 22‑10‑1971. This property at the time of the purchase, was a wara and was admittedly occupied by some Hindus who soon after the auction are said to have handed over the possession to the respondent. He raised some construction there and on 1st November, 1970 he rented out 300 square feet from the area to Beejalmal, appellant in R.F.A. 34/84 at the monthly rent of Rs.30 which was later raised to Rs.40. On the same date, he also allegedly rented out 500 square feet to Thanwarmal, appellant in F.R.A. 35/84, at the rate of Rs.40 per month which was subsequently raised to Rs.30. It is averred, that both the appellants/ tenants paid their rent regularly but stopped the payment of rent from January, 1979. Therefore, the applicant/respondent filed separate rent applications for their ejectment on the ground of non‑payment of rent as well as for raising unauthorised and illegal construction.

Both the appellants deny the existence of relationship of landlord and tenant between them and the respondent. They claim to be in occupation of the premises since before the establishment of Pakistan and allege, that with the mutual consent of all the occupants, the respondent purchased the property in auction for himself and on behalf of the other occupants who contributed towards the purchase price and were thus' owners of the respective area in their possession. Appellant Bejalmal claims the right through his brother Tejoomal, who allegedly made payment and whose sons Bachoomal and others are still residing with the appellant. Appellant Thanwarmal claims the right through his wife Shrimati Jamna Bai, who allegedly contributed towards the purchase price. It is further pleaded, that sons of Tajoomal, who is now dead, and Shrimati Jamna Bai have filed separate civil suits against respondent to have their right in the property determined, which suits are still pending.

The learned Rent Controller framed the following common issues in both the proceedings.

(1) Whether there exists relationship of landlord and tenant between the parties

(2) Whether opponent has committed wilful default in payment of rent

(3) Whether opponent impaired the utility of the disputed premises

(4) What should the order be

The learned Rent Controller held that there existed relationship of landlord and tenant between the appellants and the respondent and as non‑payment of rent was denied, he ordered eviction of the appellants vide separate orders both, dated 11‑2‑1986. He, however, disallowed the request of the respondent for ejectment on the ground of unauthorized construction by the appellants.

I have heard the learned counsel for the parties and also perused the record and proceedings of the trial Court.

Admittedly the property in question was transferred in favour of the respondent by the Settlement authorities. It is settled law that the Rent Controller cannot go beyond this transfer order and, therefore, no fault can be found with his finding that respondent is the owner of the premises and, therefore, landlord. As regards the rights in property claimed by the appellants the Rent Controller could not have given any, finding. Such disputes can be decided by civil Court where the suits are already pending.

However, mere fact that the respondent is owner/landlord of the demised premises would not ipso facto create relationship of landlord and tenant between the parties. Such relationship can be created either by statute or by contract whether oral or in writing.

If the appellants were tenants of the premises before its purchase, by the respondent, then by virtue of section 30 of the Displaced) Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), they became statutory tenants of the respondent. However, this is not case of the respondent /applicant. He does not admit their occupation at the time of transfer nor does he claim any statutory relationship of landlord and tenant between him and the appellants. The appellants also do not claim tenancy of the premises before the transfer in their own right. Appellant Beejalmal claims to be in occupation alongwith his brother Tajoomal and appellant Thanwarmal claims through his wife Shrimati Jamna Bai. Be that as it may, as the respondent himself does not claim any rights against appellants under section 30 of the Act, such rights cannot be forcibly conferred upon him by the learned Rent Controller or by this Court.

Next I proceed to examine whether there existed any contractual or oral relationship of landlord and tenant between the parties. Admittedly there is written agreement of tenancy or no documentary evidence to show payment of rent by the appellants. According to respondent he inducted the appellants as tenants by oral agreement and that he used to issue rent receipts on blank paper of which no counterfoil was kept. He also admits, that the appellants did not pay him rent in presence of any body. In such case the burden of proof lies upon the landlord to prove the existence of relationship of landlord and tenant between the parties.

It may be mere coincidence that both the appellants were inducted as tenants on the same date and both refused to pay the rent from the same month. No reason is shown as to why they refused to pay the rent, after having paid regularly for 7 or 8 years as alleged by the respondent. There is, however, material contradiction in the evidence of the respondent as to when he inducted the appellants as tenants. According to pleadings and examination‑in‑chief, he inducted them on 1st November, 1970. However, in the cross‑examination, he states, that he handed over the possession to the appellants after one year of his purchase of the property. The property was admittedly purchased on 20‑10‑1964 in auction. Therefore, if his statement in cross‑examination is to be believed, the tenant would have been created in the end of 1965 or beginning of 1966. If by purchase, the respondent meant the date of transfer, then the transfer took place on 22‑10‑1971 and one year after that would be end of 1972 or beginning of 1973. In either case, the tenancy could not have commenced from 1st November, 1970. Such a material contradiction in the evidence of the respondent makes the very creation of tenancy doubtful.

The respondent has further admitted in the cross‑examination, that neither tenancy was created in presence of the witnesses, nor any rent was paid in presence of any witness. He however, states, that he took his relatives Gainomal and Shernath to the appellants and asked them to pay the rent for one month and to vacate the premises, but the appellants refused to vacate premises, or pay the rent. Both these witnesses have been examined in both the rent proceedings. P.W. Shernath makes further improvements in the case and states in cross‑examination, that in his presence, the premises were rented out to the appellants; at the rate of Rs.50 per month to Thanwardas and at the rate of Rs.40 per month to appellant Beejalmal. This statement contradicted the statement of the respondent, that the tenancy was not created in presence of any person and that he had rented out the premises to Beejamal at the rate of Rs.30 and Thanwarmal at the rate of Rs.40 per month.

No doubt there are no such contradictions or improvements in evidence of P.W. Gainomal, but admittedly he is relative of the respondent. Therefore, his evidence will have to be taken with great caution. However, the inconsistencies between the pleadings of the respondent and admission in his cross‑examination and the contradictions between his evidence and that P.W. Shernath render the oral evidence not worthy of creditor reliance. Therefore, in such circumstances we have to also examine the surrounding circumstances of the case.

The appellants admittedly stopped payment of rent from January, 1979. He states that he took the witnesses to the appellants and asked them to pay rent for one month, which indicates that he took the witnesses either in January, or February, 1979. These rent applications were filed in March, 1981. The respondent remained silent without taking any action from January, 1979 right upto March, 1981 viz. for more than two years. He did not issue even notice to the appellant demanding the payment of rent. Such a conduct does not appear natural or probable on the part of landlord, who as alleged, has been regularly receiving rent for 7 or 8 years. As already pointed the respondent does not show the reason why the appellants refused to pay rent from January, 1979. I have already pointed, that there is no documentary evidence whatsoever suggesting existence of relationship of landlord and tenant between the parties.

The case of the appellants is that they are in occupation of the premises since before partition and that the respondent purchased the plot in auction with consent of all the occupants on behalf of the occupants and, therefore, there was no contest in the auction. It is admitted fact that prior to the purchase of the property in auction by the respondent it was in occupation of some Hindus. The respondent claims, that soon after, those Hindus handed over the vacant possession of the premises to him, but there is no evidence in support of this contention. It is contended by appellants that the price of the plot in occupation of Beejalmal was paid by his brother Tajoomal and price of the premises in occupation of Thanwarmal was paid by his wife Shrimati Jamna Bai. It is also admitted fact, that legal heirs of Tajoomal and Shrimati Jamna Bai have filed civil suits against the respondent for the determination of their respective rights in the property, which are still pending.

Considering all the facts discussed above and submissions of the learned counsel in my opinion the respondent has failed to prove the existence of relationship of landlord and tenant between him and the appellants. In such case the jurisdiction of the Rent Controller is ousted and the parties can seek redress in the civil Court. I accordingly allow the appeal and set aside the impugned order. Under the circumstances of the case the parties are allowed to bear their own costs.

H.B.T./B‑4/K

Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.