1992 PLP 1538 (MLD)

The learned counsel for the appellant also referred to the endorsement made by the, appellant, in hand, on the bottom of the document, with regard to acceptance of the gift by her and delivery of possession to her. This endorsement is inconsequential, in absence of cogent evidence on the factum of gift and delivery of possession. It is further noted that at least one of s the witnesses, namely, Syed Iqbal Ahmed has not attested the signature of the appellant's husband, but some one else has. done so, though he has attested the signature of the appellant. This fact suggests that the endorsement of acceptance of gift and delivery of possession was incorporated in the document subsequently. The learned Advocate for the appellant also relied on other two documents. One is photocopy of a document dated 3‑3‑1986 (according to tile learned counsel for the appellant the original was seen and returned), which reads as under:‑‑ "(1) B‑129, Block N, North Nazimabad will be registered by the name of Mrs. Wajeda Begum w/o Dr. Muhammad Mustaqueem. (2) Mrs. Wajeda Begum will remain true and lawful wife of Dr. Muhammad Mustaqeem. She will not seek divorce under normal conditions. If she seeks under normal conditions, she will disown the house. (Sd.) '(Dr. Muhammad Mustaqueem) 3‑3‑1986 (Sd.) (Mrs. Wajida Begum) 3‑3‑1987 WITNESSES: (1) Syed Amanuallh (Sd.) (2) Shameem Ahmed (Sd.) (3) Muhammad Noorullah Farooq Sd/ (4) (Sd.) (Mir Sadique Ali) (5) Syed Iqbal Ahmed.' (6) Mir Asif Ali. (7) Muhammad Sadrul Haque (Sd.) (8) Muhammad Jalal (Sd.) (9) Abdul Rahim (Sd.)" The above writing at the most contains the promise that the aforesaid property would be got registered in favour of the appellant. This document on the face of it does not prove anything whatsoever least to say about the oral gift. The other document is a public notice which was got published by the appellant through her Advocate in Daily Morning News of 27‑12‑1987, inviting objections if any, to the mutation of the property to be effected in favour of the appellant in the records of K.D.A. According to the learned counsel no objection was raised by any person whatsoever in response to the said notice. On query he replied that mutation has not been effected by K.D.A. in favour of the appellant. The appellant in her evidence has not stated anywhere that she or K.D.A. had not received any objection, pursuant to the notice published in the newspaper, therefore, this document is of no consequence. Even otherwise this document by itself does not confer any right on the appellant in respect of the property in question. The learned counsel contended that the respondent by describing the property in question as Wajidah Manzil had accepted the appellant as landlady because according to the learned counsel acceptance of the fact that the building is known by the name of the appellant amounts to acceptance of title of the appellant. The submission of the learned counsel is devoid of any force. The learned counsel lastly referred to the reply given by the respondent in cross‑examination, wherein he has stated as under:‑‑ "It is correct to suggest that it has come in my knowledge that applicant is owner and landlady of the .tenement in question. Voluntarily says I still do not reply her (Should read as `have not accepted her') as landlady as she has not produced the ownership documents." What the above statement conveys is not unequivocal acceptance of the appellant as owner of the property. On the contrary, the above statement suggests that the respondent would accept her as owner, if the appellant would produce document to establish her entitlement. From the above statement it is not possible to infer that the respondent has accepted the relationship of landlord and tenant between the parties. The appellant has alleged that the respondent was inducted as tenant by her in the flat in question, whereas the respondent has denied the same and has stated that he had been paying rent to her husband. The appellant has not produced any evidence whatsoever in proof of her above assertion. The learned counsel for the appellant has relied on the case of Shaheryar Ali Patodi and 3 others v. Messrs Decroa Furnishers PLD 1985 Karachi 47, on the proposition that a stranger to a gift cannot legally and validly challenge factum of delivery of possession and that a tenant could not challenge the landlord's title, if by cogent and conclusive evidence it is proved that donor made an oral gift which was accepted by the donee and possession was delivered to the donee. There is no cavil on the aforesaid proposition of law. In this case first of all the cogent evidence, to conclusively establish that the property was gifted to the appellant, is not available and on the contrary the documentary evidence produced is in conflict with the oral evidence given on the factum of gift and the document does not disclose the alleged oral gift. In this case it is not the question of denial of the title of the appellant by the tenants/respondent but the question before the Court was whether the appellant could legally claim herself to be the donee of the property and consequently landlady of the respondent. The burden to prove the aforesaid issue was on the appellant. The Court was considering the issue whether on the basis of the material placed before the Court by the appellant it could be concluded that the respondent is the tenant of the appellant. The assumption of the jurisdiction by the Rent Controller was subject to the decision of the finding that there existed relationship of landlord and tenant between the parties. While examining the said issue the Court returned the findings in negative on the basis of evidence on record. In view of the above circumstances the aforesaid authority does not advance the case of the appellant in any manner whatsoever. It is admitted that the appellant had filed Suit No.372 of 1988 against her husband. The learned Advocate for the appellant informed the Court that the suit was dismissed and appeal is pending before the District Judge, Karachi (Central). Under the circumstances no exception can be taken to the finding of the learned Rent Controller. This appeal is, therefore dismissed with no order as to costs. H.B.T.;/W‑68/K Appeal dismissed.