1997 PLP 2731 (MLD)

Brief facts are that the present respondent claiming to be owner of the premises namely, Noor Manzil on Plot No.R.B.6/46‑47, Hurmsjee Street, Gari Khata, Karachi and had filed the said rent case against the present appellant on the ground of personal requirement. The present appellant has also said to be tenant in the premises at the monthly rent of Rs.175 per month. That the respondent alongwith her children is residing in one temporary room measuring 10 x 8 Sq. Ft. on the 4th floor in the same property. The accommodation of one room for the respondent, her sister and children is insufficient, hence the respondent needs the premises for her personal bona fide use and occupation. The respondent has been approaching the appellant to vacate the premises as the same is required for her personal bona fide use but of no avail, hence, Rent Case No. 1872 of 1991. That appellant/opponent in his written statement has not denied the tenancy but has contended that the premises in question is a commercial and. not a residential. The ground floor of the building is in the occupation of M/s K.Eye Co. who are running optical shop 1st and 3rd floor of the building are in occupation of M/s Jinnah Sports and being house as a shop and godown. Appellant‑opponent is a tenant in the premises in question since 1977. Initially rate of rent was Rs.120 per month and now it is Rs.175 per month. It is the case of the appellant that at the time of inception of tenancy the appellant/opponent had paid an amount of Rs.40,000 as a "Pugri" to the previous tenant namely, Rafi Sultan with the consent of Zameer Ahmed the brother of the respondent. The appellant used to pay the rent to the respondent or her brothers, who issued rent receipts for Zameer Ahmed, therefore, the status of the respondent is mere that of a Rent Collector and therefore she cannot maintain the present rent case for her bona fide use. The appellant has also contended in his written statement before the lower Court that two ladies residing with the respondent are married but they reside with their husbands respectively in some other place. The respondent Mst. Shaheen Akhter had filed 8 rent receipts as Exhs.A/2 to

9. She has also filed her affidavit a photo stat copy of record of permanent transfer as marked ' A' and declaration of a gift document as marked 'B'. 'that respondent was cross‑examined in the lower Court and her learned advocate closed her evidence. The appellant/opponent Muhammad Ibrahim filed his affidavit in evidence as marked ' O' and filed with it the documents as marked 'A' to 'Q'. On these pleadings of the parties the following issues were settled by the Rent Controller.

1. Whether applicant/respondent requires the premises in question for her personal bona fide use.

2. What should the order be? The present respondent in support of her case has filed affidavit in evidence by herself and she was cross‑examined. The appellant has filed his own affidavit‑in-?evidence, that applicant/respondent is not the owner of the premises in question and therefore, she cannot file the ejectment application on the ground of personal bona fide need and he was also cross‑examined. The learned Rent Controller after hearing of the arguments of the advocates of the both parties was pleased to pass the impugned order. Being aggrieved the appellant has preferred this appeal. I have heard both the learned counsel for the parties. The appellant has stressed that the respondent is not the owner of the premises but merely of a Rent Collector as premises belongs to her three brothers namely, Zameer Ahmed, Saghir Ahmed and Gulzar Ahmed and., therefore, she cannot file the ejectment application on the ground of personal bona fide need of the premises. Mr. A. Rashid learned counsel for the respondent has argued that respondent had produced a document of declaration of a gift by her three brothers namely, Zameer Ahmed, Saghir Ahmed and Gulzar Ahmed as marked ' B' which specifically shows that all the shareholders in the building have unanimously gifted the, premises to the respondent and she admittedly stated receiving the rent. The learned counsel has also contended that she had produced such rent receipts paid to her by the appellant in the lower Court and in presence of gift document, that aspect of the matter shows that impliedly, the possession of the disputed premises was also handed over to the respondent by her brothers and hence requirement of completion of gift stood fulfilled. Therefore, the appellant's challenge to the validity of the gift to the respondent is against the spirit of the dictum in the light of Pervaiz Akhter v. Dr. Muhammad Ahsan and others PLD 1988 SC

734. Moreover, the appellant has also not examined any of the three brothers of Mst. Shaheen Akhter as to whether they had gifted the premises to their sisters or not but on the contrary respondent/applicant had examined her brother Zameer Ahmed in the lower Court who had categorically said that premises in question stands gifted to the applicant/respondent by all the share‑holders of the property. I have considered the above submission of the learned counsel and also examined the record of the lower Court that Zameer Ahmed brother of the respondent Mst. Shaheen Akhter was examined in Rent Application No.573 of 1993, who has said in his evidence that he alongwith his brothers Saghir Ahmed and Gulzar Ahmed have gifted the disputed premises to their two sisters namely, Mst. Shaheen Akhter and Mst. Nasreen Akhter in equal share. Although Mr. Amir Malik learned counsel for the appellant has agitated that respondent has other property also and that her sisters are residing with their husbands respectively but the record of the lower Court does not indicate that any documentary evidence was produced by the appellant that respondent Mst. Shaheen Akhter and Mst. Nasreen Akhter have any other property accept this disputed premises. It is also pertinent to note that appellant has also not denied the fact that respondent/applicant Mst. Shaheen Akhter was residing only in one room at the top of the building and in this way the contention of the respondent in respect of an insufficient accommodation has gone unrebutted. I, therefore, feel that issue No. l was correctly decided by the trial Court in favour of the respondent/applicant, For the abovesaid reasons, I see do merit in this appeal and dismiss it with costs but allow 60 days' time to the appellant to hand over the vacant possession of the premises to the respondent. H.B.T./M‑90/K??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.