ORDER SHEET

Judgment Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No. S – 214 of 2015

Petitioner : Muhammad Ishaque, through

Mr. Muhammad Imtiaz Khan Advocate.

Respondent No.1 : Sazzuddin, called absent.

Date of hearing : 17.01.2019.

J U D G M E N T

NADEEM AKHTAR, J. – Rent Case No.166/2009 filed by respondent No.1 against the petitioner for his eviction on the ground of default and personal need was allowed by the learned Rent Controller vide order dated 08.05.2014 by directing him to vacate the demised premises within 90 days ; and, FRA No.16/2014 filed by the petitioner against his above order of eviction was dismissed by the learned appellate Court vide impugned judgment dated 23.01.2015 whereby he was directed to vacate the demised premises within 30 days. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the above concurrent findings of the learned Courts below.

2. Relevant facts of the case are that the above rent case was filed by respondent No.1 by claiming that un-leased Plot No.II ED 2A, Block ‘C’, Jinnah Road, Shershah, Karachi, measuring 240 sq. yds., with construction thereon consisting of three portions (‘the plot’) was purchased by him from Abdul Qadir and Ghulam Dastagir (‘vendors’) vide agreement dated 01.04.2006 ; the above plot was originally owned by one Gul Muhammad (‘deceased’) who was unmarried and after his death, the plot was inherited by the vendors, being his nephews / legal heirs ; the plot was mutated in Form PT-1 in the names of the vendors and thereafter in the name of respondent No.1 / vendee ; one of the portions (‘demised premises’) was occupied by the petitioner who was inducted as tenant thereof by the deceased ; the petitioner had paid monthly rent to the legal heirs / vendors up till 1993 whereafter he committed default due to which the vendors filed Rent Case No.53/2000 for his eviction which was subsequently withdrawn by their counsel without their consent ; the vendors had informed the petitioner about sale of the plot / the demised premises to respondent No.1 and had requested him to pay rent to respondent No.1 and also to vacate the demised premises as the latter required the same for his personal use ; instead of doing so, the petitioner filed Suit No.1282/2006 against the vendors for cancellation of mutation of the plot in their names plaint whereof was rejected and such rejection was upheld in the appeal filed by the petitioner ; notice under Section 18 of the Sindh Rented Premises Ordinance, 1979, regarding change of ownership of the plot in his name was served upon the petitioner by respondent No.1 through his counsel ; and, the said notice was acknowledged and responded to by the petitioner, but rent was still not paid by him to respondent No.1 nor did he vacate the demised premises. In the above background, eviction of the petitioner was sought by respondent No.1 in his above mentioned rent case.

3. In his written statement, relationship of landlord and tenant between the parties was denied by the petitioner by disputing the ownership of respondent No.1 on the ground that the sale agreement in favour of respondent No.1 and Form PT-1 in his name and in the names of the vendors were not title documents and there was no registered document in their favour. The allegation of default was denied by the petitioner by stating that he was not liable to pay rent to respondent No.1 as he was not the owner of the demised premises. Personal need urged by respondent No.1 was also denied by the petitioner.

4. In view of divergent pleadings of the parties, issues on the points of default and personal need were settled by the learned Rent Controller, and a specific issue with regard to relationship of landlord and tenant was also framed. Evidence was led by the parties who themselves came in the witness box and produced several documents in support of their respective claims. After examining the evidence led by them and hearing the arguments advanced on their behalf, all the issues were decided by the learned Rent Controller in favour of respondent No.1 by holding that relationship of landlord and tenant existed between the parties, petitioner had committed default in payment of rent and demised premises were required by respondent No.1 for his personal use. While coming to the above conclusion, many important admissions made by the petitioner in his deposition and cross-examination were noticed by the learned Rent Controller, such as, the plot was still un-leased ; the deceased had inducted him as a tenant of the demised premises ; he used to pay rent to the deceased ; and, in the rent case filed against him by the vendors, it was admitted by him that the deceased was the landlord, but he refused to accept the vendors as his legal heirs. The issue with regard to relationship of landlord and tenant between the parties was decided by the learned Rent Controller in favour of respondent No.1 by holding that since petitioner was the tenant of the deceased, he could not challenge the title of respondent No.1 who had acquired the demised premises from legal heirs of the deceased, and the petitioner became the tenant of respondent No.1 by operation of law. Regarding default, it was held by the learned Rent Controller that the petitioner had admitted that he had not paid rent to respondent No.1 ; and with regard to personal need of respondent No.1, it was held that his evidence had remained unshaken.

5. Respondent No.1 has not appeared in this case on any date of hearing. Vide order dated 03.12.2018 passed in the present petition, service upon him was held good and it was ordered that if he does not appear on the next date the matter shall be heard and decided in his absence. I have heard learned counsel for the petitioner at length and have also examined the material available on record. From the pleadings of the parties and the evidence led by them, following admitted position has emerged :

I. The plot, including the demised premises, is an un-leased plot (pleaded by respondent No.1 in paragraph 1 of his eviction application and admitted by the petitioner in his cross-examination).

II. Demised premises were owned by the deceased (admitted by the petitioner in his written statement and cross-examination).

III. The petitioner was inducted as tenant of the demised premises by the deceased and the petitioner used to pay rent to him (admitted by the petitioner in his cross-examination).

IV. The plot / demised premises were mutated in the names of the vendors as legal heirs of the deceased and subsequently they were mutated in the name of respondent No.1.

V. The plaint of the Suit filed by the petitioner for cancellation of mutation in the names of the vendors was rejected and his appeal against rejection of his plaint was dismissed (admitted by the petitioner in his written statement and cross-examination).

VI. Except for the vendors, no other person ever contacted the petitioner to collect rent (admitted by the petitioner in his cross-examination).

VII. Notice under Section 18 of the Sindh Rented Premises Ordinance, 1979, was not only received by the petitioner from respondent No.1, but was also responded to by him (admitted by the petitioner in his written statement and cross-examination).

VIII. No amount was ever paid by the petitioner to respondent No.1 on account of rent of the demised premises.

6. The main ground urged by learned counsel for the petitioner is that the eviction application filed by respondent No.1 was not maintainable as he did not have any registered document of title in his favour and the application was filed by him only on the basis of a sale agreement and mutation in Form PT-1. In support of this contention, he has relied upon Altaf Ahmed Khan and another V/S Muhammad Hayat and 2 others, 2003 SCMR 1662. The above contention cannot be accepted, firstly, as registration of title document(s) is possible only in case of leasehold land / property and since the plot and demised premises were admittedly un-leased, the deceased and/or his successors-in-interest, including respondent No.1, could not have any registered title document in their favour ; and secondly, as the petitioner had admitted that the deceased was his landlord and he had paid rent to the deceased despite the fact that the deceased also did not have any registered document in his favour. The facts of the above cited case relied upon by the learned counsel are distinguishable as relationship of landlord and tenant in the said case was decided against the person claiming to be the landlord on the ground that there was only an agreement to sell in his favour and as such he was merely a prospective buyer. Moreover, the question whether the premises were leasehold or not, was not discussed or decided in the above case.

7. It may be noted that it was admitted by the petitioner that he was the tenant of the deceased, but interestingly he did not disclose anywhere in his written statement or evidence before the learned Rent Controller as to who became his landlord after the demise of the deceased. The attempt made by him to challenge the ownership of the vendors / legal heirs of the deceased and the mutation in their names, had admittedly failed prior to the filing of eviction application by respondent No.1. It is a well-settled principle of law that if a person claims ownership of a property to which he is not entitled, his claim can be questioned only by the rightful owner of such property and not by any third party. In the present case, no person, claiming to be the rightful owner or landlord of the plot / demised premises, ever came forward to dispute the ownership and title of respondent No.1. On the contrary, legal heirs of the deceased had sold and transferred the plot / demised premises to respondent No.1 whereafter the name of respondent No.1 was mutated in the record of rights without any claim or objection from any of the said legal heirs. Therefore, the petitioner had / has no locus standi to question the ownership / title of respondent No.1.

8. It is also well-settled that when a notice under Section 18 of the Sindh Rented Premises Ordinance, 1979, is served upon the tenant by the new owner of the demised premises intimating the tenant regarding change of ownership of the demised premises in his name, the tenant cannot dispute his ownership or title. In the present case, such notice was admittedly received by the petitioner from respondent No.1, but he still did not pay rent to respondent No.1.

9. Learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence by the learned Courts below or any illegality or infirmity in the impugned order and judgment which are based on proper appreciation of evidence and sound reasoning. In view of the above, concurrent findings of both the learned Courts below do not require any interference by this Court. Accordingly, the petition and pending stay application bearing CMA No.885/2015 are dismissed with no order as to costs.

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J U D G E