1995 PLP 874 (MLD)

Muhammad Ameen Lakhani for Respondent. Date of hearing: 31st October, 1993. I have heard the learned counsel and I have also examined the impugned order. It is a matter admitted on record that the respondent was the original allottee of the quarter in dispute. His case, purportedly as landlord, before the learned Controller was that the appellant was his tenant at Rs.500 per month for a long time and that the appellant had defaulted in payments of rent since January, 1988 which, inter alia, occasioned the filing of the rent case. In defence, the appellant pleaded that he was never a tenant of the premises but that, as per agreement of sale dated 6‑5‑1961 together with delivery of possession of the quarter in question in part performance, he had succeeded to the title in the property. In support he relied upon material consisting of an agreement of sale and corresponding receipt, together with electricity bills dating back to 1973. On the other hand, after the dismissal of the rent case, in the applicant's absence (subsequently restored), the referred quarter was also transferred to the appellant. What is more, the appellant in relation to his affidavit in evidence was not even cross‑examined by the respondent, the alleged landlord, rendering the appellant's evidence virtually admitted for want of cross‑examination. This aspect was ignored at the level of the learned Controller. So far as the respondent‑applicant's own evidence is concerned, the learned Controller accepted his version on the basis of a comparison of signatures in the documents produced by the appellant and those occurring on the record before the learned Controller, an exercise which was clearly hazardous, when it is borne in mind that the comparison at the hands of a non expert was taking place between purported signatures effected in 1961 and those which were endorsed in the year 1989, involving, even in the normal course, material variations in signatures. On this material, it was manifestly a deviation from judicial norms to order cancellation of the lease subsequently granted to the appellant by the KDA. howsoever erroneous the exercise of power at the level of KDA. may have been. Irrespective of the foregoing conclusions, the most material question before the learned Controller was whether the appellant had been proved to be a tenant of the respondent. As noted by the learned Controller herself while the purported agreement of sale dated 6‑5‑1961 was in writing there was no written agreement of tenancy between the parties. Likewise, it stood unrebutted before the learned Controller that in the KDA. ultimate case of the respondent was that the appellant initially was the respondent's licensee which licence, later on, was converted into a tenancy (statement on oath of Ashfaq Ali dated 25‑11‑1990 Exh. W/C/1). Even if it be assumed that in law an agreement of tenancy need not be in writing it nonetheless remains necessary for the person, who claims himself to be the landlord of a premises, to prove that as a matter of fact there is and has been such a tenancy in existence. This can be proved through documentary material and also upon oral evidence. As to documentary material there is none on the record. Likewise, in the context of oral evidence the respondent has examined only himself on the point. At best this is a case of word against word and in context the word of the appellant became stronger because the appellant was not even cross‑examined. What is more, the respondent's other witness from the KDA. produced some material which indicated that another and an earlier stand of the respondent before KDA. (affidavit dated 4‑1‑1988 Exh.W/1) was two‑fold namely that he had lost the papers pertaining to the property and that at a time when the respondent had gone to India somebody had occupied the disputed quarter which assertion if accepted on its face value would prove the appellant to be, at best, an unauthorised occupant. However, this stand may also be a self‑defeating one because the loss of documents and the referred visit to India must have been preceding the year 1988 whereas the appellant relied upon the K.E.S.C. bills in his name dating way back to 1973. Indeed in the respondents later version before the KDA. (Exh.W/C/1 dated 25‑i1‑1990) The stand taken was that the appellant was first inducted as licensee and then started paying rent and ail this came about in 1970. Unfortunately even this is rather wide of the mark because the rent of Rs.500 per month, as claimed, was a substantial amount in 1970 and surely there would have been some documentary material to support its receipts from month to month for such a long period. That there is none is no small matter to be ignored. In the foregoing circumstances the impugned order of the learned Controller is not sustainable. It is set aside. The respondent, however, would be free to reagitate the controversy by way of a civil suit where the relevant Court may resort to the rent proceedings to such extent as it may deem fit and proper besides recording adequate additional evidence as to the question of title alone because in so far as the question of relationship of landlord and tenant is concerned, in view of the findings recorded here, there was no such relationship. In the Civil proceedings possession on the basis of title, if proved, may be sought from the appellant not on the ground that the appellant was tenant but on any other grounds, as be admissible, including unauthorised possession of the quarter in dispute. Subject to the foregoing this appeal is allowed. H.B.T./A‑1498/K Appeal allowed.