1992 PLP 2098 (CLC)

(vii) Mst. Fatima v. Mst. Hanifa (1980 CLC 1613) (viii) Shaukat Ali v. Mst. Noor Bibi (1988 CLC 630) (ix) Fasahat Ali v. Mst. Noor Jehan Begum (1991 CLC 1902) (x) Ghulam Rasool v. Syed Nazim Hussain Shaikh (1988 CLC 793) (xi) Feroz Khan v. Mst. Meraj Begum and others PLD 1982 Lah. 332 Mr. Khalique Humayun, learned counsel for the respondent argued that the respondent had purchased the premises in litigation from the legal heirs of Muhammad Younus, who was admittedly landlord of Muhammad Ismail father of a ' ppellant Muhammad Yasin and who had died. It was added that the sale had taken place and such affidavit ExhA/3 was sworn by the legal heirs of Muhammad Younus and the same was attested by the Notary Public and was countersigned by a Magistrate First Class. It was. conceded that legal heirs of Muhammad Younus had earlier riled Rent Case No.2587 of 1973 against the, appellant whose ejectment was ordered by the Rent Controller, but such order was reversed in FRA No.21/80. It was next argued on behalf of the respondent that after purchase of the premises in litigation by her she 'sent notice dated 3‑6‑1985 (copy filed in the rent case) to the appellant who admitted having received the same vide para. 7 of the written statement. It was also argued that after receiving the notice sent under section 18 of the Ordinance, the appellant was required to pay rent to the respondent and his Failure to do so, amounted to his having defaulted in payment of rent in terms of clause (ii) of subsection (2) of section 15 of the Ordinance read with section ,18 of the Ordinance. Learned counsel for the respondent explained that the disputed premises were situated in Katchi Abadi Area, where property can change hand otherwise than through a registered sale‑deed. Mutation in respect of purchase of the disputed property by the respondent, was said to have been effected in the KMC record and in the Excise and Taxation Office record. It was conceded that possession of half of the disputed property was received by the respondent. Appellant was said to have filed a Suit No.473/86 where he had admitted that he was in possession of Property No.B‑461, Urdu Bazar, Shershah Colony, Karachi. Reference was also made to para. 12 of the affidavit of Muhammad Yasin. It was also argued (hat the property tax and the KMC taxes were being paid by the respondent and so also the electricity charges. The appellant was said to have admitted non‑payment of rent. In support learned counsel for the respondent cited the cases of‑ (i) Kalimullah v. Amin Hazin and others (1976 SCMR 77) (ii) Mrs. K. Kazim v. Syed Kamaluddin Shah (1982 SCMR 576) (iii) Muhammad Siddiq v. Muhammad Sharif (1982 SCMR 804) (iv) Sh. Muhammad Rafique v. Mian Nadir Jang Bahadur and other's (1984,SCMR 1226) ‑ (v) Dr. Juzar Ali v. Mrs. Mani Bai (PLD 1987 Kar. 462) (vi) Mehrullah Khan v. Abdul Sattar and others (PLD 1987 Kar. 685) (vii) Noor Muhammad v. lqbal Ahmed (1985 CLC 1007) (viii) Naimuddin Siddiqui v. S.M. Ahmed ‑Habibur Rahman (1983 CLC 1378)‑ (ix) Naseer v. Muhammad Sharif (1987 CLC 520) (x) Bakhtawar v. Sher Muhammad and others (1984. CLC 2248) Respondent produced in her evidence affidavit of her husband Muhammad Sharif Exh.A/I and affidavit of Muhammad Riaz, one of the legal heirs of deceased Muhammad Younus. Muhammad Riaz stated that the premises in litigation viz. House No.461, Block 'B' belonged to his father Muhammad Younus ' on whose death the same was inherited by him and by Mst. Zubeda Khatoon Muhammad Suleman, Muhammad Akhlaq and Mst. Zeenat. Muhammad Riaz added that said house was sold to Mst. Amir Bibi on 31‑3‑1985 and that constructive possession of the said house was given to her. In his cross‑examination Muhammad Riaz admitted that sale of disputed premises by him was oral and no document had been registered. Muhammad Sharif stated in his affidavit‑in‑evidence that he was husband of the respondent who had purchased the disputed premises bearing No.M.H.E.B. 154, Muhammadi Road, Sher Shah Colony, Karachi from Mst. Zubeda and others on 31‑3‑1985. In his cross‑examination Muhammad Sharif admitted that he had not filed any document of title, except photo copy of the affidavit of the previous owners of the disputed premises. He admitted that no registration of any conveyance deed had been effected. In the affidavit ExhA/3, the legal heirs of deceased Muhammad Younus have stated that they had sold the disputed property for Rs.80,000 to the respondent. It is open to question if an immovable property of the value of more than Rs.100 can be sold in this way. In the case of Khawaja Ammar Hussain (PLD 1986 Kar. 74), the view taken was that sale of immovable property of the value of Rs.100 and upward can be made only by a registered instrument. it was further held that even a contract of sale by itself would not create any interest or change in an immovable property. In the case of Mst. Fatima (1986 CLC 1613), which was a case under the Rent Ordinance the view taken was that an unregistered document of sale cannot create any title or interest in an immovable property worth more than Rs.100. In the cited case there was dispute about title of the property in litigation and the view taken was that such dispute of ownership would require determination by a civil Court as held by the Supreme Court of Pakistan in the case of Rehmatullah (PLD 1983 SC 1064). In the circumstances the respondent cannot be held to be owner of the disputed premises for the purposes of this litigation and as observed in the case of Rehmatullah she will have to obtain declaration from a Civil Court about her title. In this affidavit, appellant Yasin admitted that his father Muhammad ‑Ismail had acquired the house in litigation on rent from Muhammad Younus and that subsequently both of them died. Appellant added that he started making payment of rent to the legal heirs of Muhammad Younus who filed Rent Case No.2587/73 for his eviction on the ground of default in payment of rent and on the ground of personal requirement. Appellant produced photo copy of such rent application and stated that the rent application was decided against him but his appeal against such decision was accepted on 12‑4‑1981. That after being victorious in appeal, he offered the rent to his landlords who did not accept the same. Appellant claimed to be depositing the rent in Misc. Rent Case No.3918/81 from 1‑4‑1981 at the rate of Rs.25 per month and as such he asserted that he was not in arrears. In his cross‑examination Muhammad Riaz admitted that he and other legal heirs of Muhammad Younus, filed ejectment case against the appellant in 1973 but the judgment of the High Court was in favour of the appellant. The present rent application was filed on 24‑9‑1985 by the respondent. There is force in the contention raised on behalf of the appellant that legal heirs of deceased Muham mad Younus managed this case through the respondent for seeking an order of ejectment against the appellant. Muhammad Riaz admitted in his cross examination that he had good terms with husband of the respondent, who was living in the same locality. He admitted that no written information was given to the appellant regarding sale of the premises in question. 'the story about purchase of the disputed premises by the respondent appears to be a made up one. The authorities cited on behalf of the respondent do not help him. In the case of Kalimullah (1976 SCMR 77), it was held that once a person accepts another as his landlord and enters into possession of premises as a tenant ‑he cannot be allowed to challenge title of his landlord. In the case of Sh. Muhammad Rafique (1984SCMR 1226), the documents produced in evidence showed that the appellant himself admitted the respondent as his landlord and it was held that the appellant cannot be permitted to deny title of the respondent in the demised premises. These authorities could apply if the appellant had denied the title of legal heirs of Muhammad Younus. The appellant has nowhere accepted the respondent to be his landlady. In the case of Mrs. K. Kazmi (1982 SCMR 576), the tenant stopped payment of rent ostensibly on the ground that after the death of her landlord the claimants of rent were numerous and she was not satisfied about the claim or title of any, one of them. In said case the demised property was sold by registered deed in favour of new owner who served proper notice on the tenant supplying him particulars of registered sale‑deed and demanding rent and the tenant made a counter‑demand for photo copy of the registered deed and no rent was paid. In the circumstances default was held to have been proved. Present case is distinguishable where there was no registered sale‑deed in favour of the respondent. In the case of Muhammad Siddiq (1982 SCMR 804) the tenant was given direction by the old landlord to attorn new owner as his landlord but he persistently refused to acknowledge new owner as his landlord and did not pay rent and finding of default in payment of rent was maintained. In the present case there was no direction from the legal heirs of Muhammad Younus to the appellant to accept the respondent as his landlady. In the case of Dr. Juzar Ali (PLD 1987 Kar. 462), the tenant had not denied the relationship of landlord and tenant between him and owner of the ‑premises and ground of personal need was made out and hence eviction of the tenant was ordered but the ground of default was not proved. In ' the case of Mehrullah Khan (PLD 1987 Kar. 685) the tenant was informed by the new owners of the demised premises through two notices that they were the owners/landlords of the disputed premises since September 1.979, and the bid owner/landlord had refused to receive the rent from September 1979. Despite this the tenant continued to deposit rent in name of the previous landlord. Such conduct of the tenant was held to be not bona fide to absolve him of the responsibility of tendering of depositing the rent in name of the new landlords. In the case of Naseer (1987 CLC 520), it was held that where possession of a land was handed over by vendor to the vendees after receiving consideration, sale of such land in favour of the vendees was complete. In the instant case there was no delivery of possession and there was no definite evidence about payment of consideration. In the case of Bakhtawar (1984 CLC 2248), the view taken was that a suit for specific performance of a contract of sale can be maintainable even if based on unregistered agreement of, sale. Even agreement of sale was not executed in the instant case. The respondent failed to establish her being owner of the premises in litigation. She is therefore not covered by the definition of 'landlord' as given in Section 2 (f) of the Ordinance. Hence in the eye of law no relationship of landlord and tenant existed between the parties. Mohammad Sharif husband and attorney of the respondent stated in his affidavit that the premises in litigation was bona fidely and in good faith required by the respondent for her personal use and for use of her ever growing family consisting of seventeen members. Presently said family is said to be living over a plot of 100 Sq. Yards only. It was added that the appellant has got constructed his own house which is lying vacant. In. his cross examination Mohammad Sharif admitted that only half portion of the disputed house was with the appellant and in the other half portion which was vacant at the time of purchase, power looms were installed. Muhammad Riaz stated in his affidavit‑in‑evidence that the respondent had a large family consisting of seventeen members with too short accommodation and that she bona fidely required the premises in question in good faith for her family. In his cross examination Mohammad Riaz admitted that the disputed premises consisted of two portions, one of which was in his possession and in it there were powerlooms. In this way as per evidence of the respondent side, there are ‑power looms in that portion of the pr6mises in litigation which was not in possession of the appellant. Had the respondent genuine need for residential accommodation she would not. have set up powerlooms in half of the premises in litigation, which was basically residential one. This shows that the respondent had ho genuine need for the premises in litigation. In the case of Naimuddin Siddiqui (1983 CLC 1378) the view taken was that earlier demand by landlord for vacation of the premises for his personal requirement can militate against his bona fides only if the tenant is able to show from the evidence that the claim made by the respondent is not true, and he has been able to prove his case. In the case of Noor Muhammad (1985 CLC 1007) it was held that a landlord has to establish his requirement by tangible evidence and not by only making simple statement that he needs the premises for his own use. These authorities do not help the respondent. As a result of the above discussion, I am of the view that the respondent had failed to make out that she was landlady of the appellant and that she required the premises in good faith and that the appellant had defaulted in payment of rent despite his regularly depositing the rent in ' Court. Hence this appeal is accepted and the impugned order is set aside with the result that the rent application filed by the respondent stands dismissed. There will be no order as to costs. H.B.T./M‑1676/K Appeal accepted.