1986 PLP 1302 (MLD)

Rashiduddin Ahmed and M. Zia Qureshi for Appellants. Munawar Abbas for Respondents. Dates of hearing: 29th April and 8th May 1986. The two appellants, namely, Muhammad ldris and his wife Mst. Rashid Begum, have filed this appeal under section 21 of the Sind Rented Premises Ordinance. 1979, challenging the ejectment order, dated 18‑7‑1983 by the Rent Controller, Karachi, in Rent Case No. 2218 of 1976 filed by the respondents. Originally the ejectment application had been filed by respondent No.1, Saeeda Amin against appellant No.1 Muhammad Idris, who is shown as a recorded tenant of the property in the records of the Custodian. Later on Mst. Rashida Begum, wife of Muhammad Idris, become an opponent in the ejectment case on her application being allowed for joinder. According to Mst. Rashida Begum, the Property in question had been transferred to her by the Settlement Department and reliance had been placed on a P.T.O. issued to her in 1963, As observed earlier, originally Mat. Saeeda Amin (respondent No‑1) was the only applicant in the ejectment case but later on respondent No.2 Muhammad Taqi became co‑applicant in the ejectment case having purchased the property from respondent No.1 in 1978. Only two persons gave evidence i.e. respondent No.2 Muhammad Naqi and appellant No.1 Muhammad ldris. The ejectment application had been filed on the ground of default but relationship of landlord and tenant was disputed by the appellants and as such an issue about relationship of landlord and tenant was also framed apart from issue relating to default. Both the issues were decided in favour of the respondents by order, dated 18‑7‑1983 and the ejectment of the appellants ordered by the Rent Controller. I have heard Messrs Zia Qureshi and Rashiduddin for the appellants and Mr. Munawar Abbas, learned counsel for the respondents.

2. It was contended by the appellants that the P.T.O. had been issued in favour of appellant No.2. Mst. Rashida Begum in respect of the property in question. According to the learned counsel for the appellants, the property was evacuee property and it was transferred to appellant No.2, whereas according to the learned counsel for the respondents, this was not evacuee property. According to Mr. Munawar Abbas, learned counsel for the respondents, the P.T.O. is a bogus document and is a forgery. The reasoning of the learned Rent Controller holding that the relationship of landlord and tenant existed between the parties is as follows: "From the evidence as brought on the' record, it appears from the letters Exhs. A/15, A/21, A/24 and A/29 that the opponent No.1 has admitted the father of the applicant No.1 namely Moulvi Muhammad Amin as his owner/landlord in respect of the suit property. The opponent No.2 claims to be the owner in respect of the premises in case on the basis of Photostat copy of P.T.O. No. 17110 dated 27‑10‑1963. This document obviously is of 1959 and till today, no Permanent/Final Transfer Deed is issued to the opponent No.2. Neither allotment order said to have been issued, has been produced though affording him opportunity and nor the receipt of payment of the purchase amount mentioned in P.T.O. has been produced. And whereas the sale‑deed in respect of the property in case has been executed in 1978 in between the applicants Nos.l and 2 and prior to this, sale‑deed was executed in between the original owner Mst. Salma and the Hindu owners in 1946. Admittedly the applicant No.2 after purchase of the property, served the oponent No.1 with notice under section 13(a) of the Ordinance, 1959 demanding rent and intimation about purchase of the property and admittedly no rent was paid to the applicant No.2. As such, I hold that there exists relationship of landlord and tenant ire between the parties and that the opponent No.1 being the tenant of the applicant No.2 has committed wilful default in payment of rent." From the above reasoning of the learned Rent Controller it is apparent that according to the Rent Controller, the P.T.O. relied upon by the appellants is a bogus document. It has been completely ignored by the learned Rent Controller. If the said P. T .O. issued in favour of the appellant No.2 had been a genuine document, the Rent Controller could not have ordered ejectment of the appellants, as then the finding would have been that relationship of landlord and tenant did not exist between the parties. According to the learned counsel for the appellants, this question about invalidity of the P.T.O. could not have been decided by the Rent Controller. For this proposition learned counsel for the appellants relied upon a decision of the Supreme Court in the case of Abdullah v. Abdul Majeed 1984 S C M R

258. In that case a preliminary issue about existence of the relationship of the landlord and the tenant was framed by the learned Rent Controller and the contention of the tenant in reply to the ejectment application was that the Settlement staff go' added certain numbers at the time of issuance of P.T.D. and the very allotment of the said survey number in the name of the landlord was fraudulent, illegal, void ab initio and of no legal effect. The learned Rent Controller preferred oral evidence of the tenant over the documentary evidence of the landlord. The High Court reversed this finding on the ground that the Rent Controller, being an authority having limited jurisdiction could not sit in judgment over the P.T.D., which had the effect of establishing the statutory relationship of landlord and tenant. The tenant filed a petition for special leave to appeal, which was dismissed by the Supreme Court and an observation was made that the Rent Controller was not the form for deciding questions of fraud and collusion in respect of the permanent transfer deed. On the basis of the aforesaid decision of the Supreme Court, it was argued on behalf of the appellants, ‑ that the question whether the said P.T.0. in favour of the appellant No.2 is a forged document cannot be decided by the Rent Controller and 'the proper forum now is a civil Court. It was also submitted by the learned counsel for the appellants that the sale‑deed executed by respondent No.1 in favour of respondent No.2 was challenged by a civil suit and the civil Court has, by an ex parte decree set aside the sale‑deed. Mr. MunaWar Abbas, learned counsel for the respondent has pointed out that an application has been filed in the said suit for setting aside the ex parte decree. On the other, hand, it was argued, by Mr. Munawar Abbas, learned counsel for the respondent, that apparently the P.T.O., on which the entire case of the appellants rests, is a. bogus document. It was submitted that an enquiry is being conducted by the Settlement Authorities in this connection. Learned counsel had prayed that this Court may summon the Deputy Settlement Commissioner to find out whether the P.T.O. has been issued in favour of the appellants. Learned counsel for the respondent has also relied upon a decision of the Supreme Court in the case of‑ Rehmatull Ali Muhammad 1983 S C .M R 1064.

3. In the instant case, without a clear finding that the P.T.O. issued in favour of the appellant No.2 is a bogus document, issue relating to existence of relationship of landlord and tenant between the parties could not have been decided 'in favour of the respondents by the Rent Controller and as observed earlier; from the order of the Rent Controller it appears that the P.T:O. was ignored on the ground that it was not accepted by the Rent Controller as a genuine document. But the question whether the said P.T.O. was a bogus document could not have been decided by the Rent Controller. To adopt the words of the Supreme Court in 1984 S C M R

258. Rent Controller is not the forum for deciding the question of fraud and collusion in respect of the permanent transfer deed. In the present case only a P:T.O. had been issued to appellants but 'in my view, the principle laid down in 1984 S C M R 258 in respect of P.T.D. would also apply to provisional transfer orders. The dispute between the parties is already pending in the civil Court. The, question of validity of the P.T.O. issued in favour of the appellants required determination, which question could not have been decided by the Rent Controller. The proper course for the Rent Controller was to have dismissed the ejectment application leaving it open to the respondents to get their title cleared from a Civil Court in view of the existence of the P.T.O. on which reliance had been placed by the appellants. In view of the law clearly declared by the Supreme Court in 1984 S C M R 258, the other decision of the Supreme Court relied upon by Mr. Munawar Abbas 1983 S C M R 965 does not come to the rescue of the respondent.

4. As a result, First Rent Appeal No. 707 of 1983 is allowed and the order, dated 18‑7‑1983 of the Rent Controller is set aside. The respondents may first get their title cleared from a proper forum and once their title is cleared, it will be open to them to file a fresh cast for ejectment against the appellants. There will be no order as to costs. M.Y.H. Appeal allowed