P L D 1995 Karachi 52 (PLP)

By this common judgment, I intend to dispose of all these appeals which pertain to the same Building comprising of the premises in occupation of the appellant and owned by the same person, who is respondent in all the appeals. briefly the facts relevant for the purposes or the appeals that the respondent had purchased the premises constructed on Plot No3/192, Group No.3, Commercial Area, Liaquatabad, Karachi, wherein the shops in dispute are Situated and the present appellants are the tenants/occupants of the said Shops at a monthly rent as mentioned in the rent cases, The present respondent purchased the said premises through an Agreement of Sale executed on 14th May, 1991 by one Nawab Ali wher by the constructive possession of the premises which were in occupation of the tenants has also been handed over to the respondent. After having received possession, the respondent served notice under section 18 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) and in consequence of the service of the notice, the tenants started paying rent to the present respondent. However, a protest was raised by the tenants challenging the lawful ownership of the respondent. Thereafter the respondent moved applications for ejectment of the present appellants on the ground of requirement fur personal bona fide use. His case is that he amends to demolish the dividing walls of the shops and made it a big show-room , which he will use as Show-Room for Leather Goods, Soles, Foams, Adhesive TPR Solutions and also the storage of the. same and may also raise further construction oft the first floor for having a godown for the same purpose. The appellants contested the rent cases and filed their written objections. The main contention of the appellants is that Agreement of Sale does not create any vested right in the purr but it is only a registered sale by which the purchaser can claim the rights as owner in the demised premises. The second contention of the appellants is that the premises in dispute were initially owned by the deceased father of the said Nawab Ali and after the death of his father, widow Mst. Zahida teed to be owner of this property and recovered the rent. However, this Mst. Z,ahida is also dead and it is the case of the respondent that she is survived by four daughters and one son Nawab Ali. In these circumstances, the appellants have taken the plea that Nawab Ali could not sell this entire property and, therefore, this Agreement of Sale by itself is not enforceable in law and thus the present respondent has no right, title or interest in the said premises and, therefore, the very cases for ejectment filed by him would not be maintainable. The respondent had examined himself, his brother Gulfarn Ahmad and two witnesses Syed Irfan Ali and Muhammad Moin, all through affidavits in-evidence. All of these witnesses were cross-examined. In rebuttal the appellants examined themselves through their affidavits-in-evidence and were cross-examined. The Rent Controller after having considered the evidence on record and arguments was pleased to allow the rent cases directing the ejectment of the appellants. Being aggrieved, the appellants have preferred these appeals. I have heard Mr. Rashid Akhtar Qureshi, the learned counsel appearing for appellant in First Rent Appeal No.275 of 1993, Mr. Ali Zaheer, Advocate holding brief for Ishtiaq Ali Kanhorvi, Advocate for appellants in First Rent Appeals Nos. 316 and 317 of 1993 while the appellants and their counsel in First Rent Appeals Nos.276, 277 and 278 of 1993 are called absent. The learned counsel present for the appellants have raised pleas. In addition Mr. Rashid Akhtar Qureshi, Advocate has pointed out that it was incumbent on the Rent Controller to have framed an issue with regard to relationship of landlord and tenant; and that the appellants should have been given an opportunity to lead evidence on this issue. Before going on merits of the case first I will take up this point. Of course, Civil Procedure Code under Order XIV provides for settlement of issues in a civil suit before the recording of the evidence. However, in the Ordinance section 29 provides that the Rent Controller shall hold an enquiry and it is for the Rent Controller to determine as to what procedure he will adopt in the matter. There is no specific provision in the Ordinance whereby the Rent Controller is required to settle the issues. It is generally the points for determination which the Rent Controller notes at the time of writing of order though the same may have been called `Issues' inadvertently as mentioned in section 19(5) of the Ordinance. The other point raised by the learned counsel for appellants is that they had paid the rent under protest to safe-guard their rights but they had never admitted the respondent as their landlord. Under the Ordinance the definition of `landlord' is provided in section 2(f) which means any person who is owner or -entitled to receive the rent of the demised premises. Thus any person who, in whatever capacity, is entitled in law to receive the rent does, become landlord and can file an ejectment case under section 5 of the A Ordinance. Keeping this in view I would proceed to examine the Sale Agreement entered into between the parties. According to the provisions of para. 2 of this Agreement, the possession has been handed over to the vendee alongwith the tenants in the premises. This agreement also shows that entire sale consideration of Rs3,50,000 has been received by the Vendor Nawab Ali The contention of the learned counsel for the appellants is that there are four other sisters who are also co-sharers and the said Nawab Ali had no right or authority to sell their shares. In the present case the appellants have failed to examine any of the sisters as witness and no reason whatsoever has been advanced as to why they avoided to examine the said sisters. They have not shown if such sisters existed or what were their names. The burden to prove this contention lay heavily on the appellants and they failed to discharge the same. Even if the contention of the appellants is accepted then also this Agreement of sale would be valid and enforceable in law at least to the extent of the share of Nawab Ali which in these circumstances would be I/3rd in the entire property and if that Sale Agreement is taken into consideration to the extent of the share of Nawab Ali then the present respondent would become co-sharer with the alleged sisters and would be entitled to seek ejectment in his own right. Section 53;~A of the Transfer of Property Act is attracted to the present cases which reads as under; "53-A. Part performance.-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required, to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shad be debarred `from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract; Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the: contract or the part performance thereof." The above provision clearly lays down that in such case whore the Agreement of Sale is executed for valuable consideration and possession stands transferred to the vendee, the vendee is entitled to defend his right as against any action brought against him. Not only this but he is also entitled to appropriate the usufruct of the property in question. The usufruct in the present cases is the rent and, therefore, I am of the view that the present respondent is entitled to rent in the present cases and thus he comes within the definition of the landlord as given in section 2(f) of the Ordinance. In these circumstances, I am of the view that the order of the Rent Controller, which is based on sound reasoning does not call for any interference. Accordingly, the appeals are dismissed with no order as to costs. The appellants shall hand over the vacant possession of the demised premises to the respondent within a period of Four months from the date of this order. N.H.Q_/A-`1485/K Appeals dismissed.