1989 PLP 4488 (MLD)

SALEEM AKHTAR, J.--The respondent filed an application under section 15 of Sind Rented Premises Ordinance 1979 against the appellant for ejectment on the ground that he being a tenant of the disputed premises has defaulted in spite of notices from June, 1977 and also that he requires the premises for his personal bona fide use. The appellant denied the claim and stated that the relationship of landlord and tenant does not exist between the parties. It was pleaded that the appellant is in possession from before 1947. In 1959 the appellant and one Moosa Bhai who was in possession of the other portion of the premises bearing No. G.F.II, II, J.M. 160, 48, Bhagari Road, Jamshed Quarters, Karachi applied for transfer of the portion of the said building which were in their respective possession. Thereafter the respondent requested Moosa Bhai and Ibrahim the father-of the appellant to withdraw their application in his favour so that the portion in their possession as well as in his possession could be transferred to him. The respondent promised that in consideration of Moosa Bhai and Ibrahim withdrawing their application he would transfer to them the respective portions in their possession. An agreement, dated 24th November, 1959 was executed which has been produced oil record. In pursuance of this agreement Ibrahim and Moosa Bhai withdrew their application. The respondent. Moosa Bhai and Ibrahim filed a joint application before the Deputy Settlement Commissioner. Thereafter Ibrahim made enquiries from the respondent about the transfer but he only stated that it his not been made so far. In May 1965 Ibrahim received a notice from the Excise and Taxation Department for transfer of the premises in the name of the respondent. He objected to it as to terms of agreement dated 24-1-1979 he was entitled to the portion in his occupation. The application was not granted and Ibrahim continued to pay property tax. Thereafter in spite of request to him by Ibrahini respondent did not transfer to him. Again in 1975-1970 the respondent applied to the Excise & Taxation Department but on Ibrahim's objections no order was passed. The learned Controller by the impugned order framed preliminary issue, 'Whether there exists relationship of the landlord and tenant between the parties and after recording evidence by the impugned order held that parties had entered into an agreement dated 24-1-1959 but it was not enforced and on the basis of that agreement no defence can he raised as suit for its enforcement his become time-barred and the relationship landlord and tenant exists. Consequently ejectment order was passed. The first question is whether the relationship of landlord and tenant exists between the parties. In this regard Mr. G.H. Malik the learned counsel for the appellant has contended that the respondent in ejectment application hits stated that the relationship of landlord and tenant exists but did not state that this relationship was by operation of law and therefore relying on 1984 CLC 3483 it was contended that as this plea has not specifically been raised or pleaded it cannot be pressed it the time of argument. The appellant had claimed the respondent to be a tenant and in evidence filed a notice under section 30 of the displaced Persons (Compensation and Rehabilitation) Act which was denied by the appellant. In defence the appellant had pleaded that the building consisting of his tenement was an evacuee property which was transferred to the respondent but this transfer was benami and the portion occupied by the appellant was to be transferred to him. Therefore, in the facts and circumstances of the case the plea raised by the respondent was not a completely new plea. It was within the contemplation of both the parties that the plea is based on transfer by the Settlement Authority and therefore the relationship could be only by operation of law particularly when no agreement had been pleaded. In these circumstances the appellant was not taken by surprise. This plea cannot sustain. Mr. G.H. Malik then contended that even by virtue of section 30(1) of Displaced Persons (Compensation and Rehabilitation) Act 1958 the relationship of landlord and tenant is not established. According to the learned counsel section 30 provides that on transfer of the property by a Settlement Authority any person on occupation shall without prejudice to any other right which he may have in it be deemed to be a tenant of the transferee. Therefore by operation of law where tenancy is created it is without prejudice to such rights which a person in occupation of the said house has in it and such rights will not be wiped out by mere transfer. The appellant claims that by virtue of an agreement between the parties the respondent acquired the premises in trust for the appellant. 11 hits therefore to be considered whether the respondent acquired the premises in trust for the appellant and whether he was holding the property in his name as benami. The learned counsel for the appellant has referred to the definition of the trust as provided under section 3 of the Trusts Act and also as defined by Corpus Juris Secundum, Vol.89 page 712 and 713 and a passage from 1-Ialsbury's Laws of England 3rd Edition, Vo1.38, para 134E to establish that the respondent was holding the property in trust for benefit of the appellant. The learned counsel also referred to Rana Uma Nath Bakhsh Singh v. Jang Bahadur AIR 1938 PC 245, Indian Iron & Steel Co. Ltd. v. Dalhousie Holdings, Ltd. AIR 1957 Cal.

293. Patrick v. Simpson and others (1889) 24 QBD

128. The principle enunciated in these authorities is that where a person holds a property for another for a specific purpose he holds it in trust for the other. There is no cavil with the principle enunciated in these authorities but the question is whether it is possible. For this, Court to decide such question which directly affects the title and right of ownership of property and requires minute examination of the evidence. Such jurisdiction is conferred on the Civil Courts anti where such disputed questions relating to title are involved, the Controller would refrain from giving finding. In cases where the questions arc not disputed or that the objections relating to the title to the property seem to be flimsy and sham and on the face of it frivolous and fictitious, the Controller may inquire into it while determining the issue relating to relationship of landlord and tenant. In this case the question involved is not simple and requires interpretation of the agreement, consideration of the evidence and application of provisions of law quoted by the learned counsel for the appellant. Mr. Suleman Qasim, the learned counsel for the respondent has taken the stand that as the property has been transferred to the respondent, in law he is the owner and by virtue of the provisions of section 30 the appellant become a tenant of the transferee i.e. respondent. The proposition of law as it stands cannot be disputed but whether it is applicable to the facts of this case requires serious consideration because the agreement, dated 24-11-1959 has not been denied. In fact the respondent has admitted it in his cross-examination. Mr. G.H. Malik the learned counsel for the appellant contended that notwithstanding Section 54 of the Transfer of Property Act the appellant acquired a right in the premises in question in view of the provisions of section 40 of the said Act and Section 91 of the Trusts Act, 1882, In this regard he has referred to Mohiuddin Molla v. The Province of East Pakistan, PLD 1962 SC. 119, Chand Mohammad v. Murtuza Khan AIR 1958 Bom- 194 and Chitalay on 'Transfer of Property Act at page 192 The principle deduced from these authorities is that although the contract for sale does not create any interest in the property by virtue of section 27(b) of the Specific Relief Act the property in equity is transferred to the vendee and the vendor becomes trustee. The facts of the present caw are unique in nature inasmuch as the appellant's father Ibrahim who was in occupation of the house had applied for transfer by filing NCH Form and in law he was entitled to the transfer of the property. Under the agreement with the respondent he withdrew his application for transfer allowing the entire house to be transferred to the respondent on the understanding that after obtaining P.T.O. the respondent would transfer the portion in appellant's possession to him. This is the appellant's claim as contained in the agreement. As in my view the question cannot be decided by the Controller or the appellate Court I would refrain to comment upon it and leave it open to be decided by a Court of competent jurisdiction. Mr. G. H. Malik, the learned counsel further contended that the appellant's right to enforce the said agreement has not become barred by time and in this regard he has referred to section 10 of the Limitation Act and also to Deputy Custodian of Enemy Property v. Karachi Electric Supply Corporation PLD 1975 Kar. 21 where it was held that in case of trust to which section 10 of Limitation Act applies, no period of limitation has been provided. Reference has been made to S.M.Hanif (Dacca) Ltd. v. Central Bank of India., PLD 1969 Dacca 255 and Mohammad Shah v. Fasihuddin Ansari PLD 1957 SC (India) III. In view of the aforestated contentions in my view the appellant has succeeded in making out a case which requires consideration by a Civil Court. In this regard reference can be made to Rehmatullah's case 1983 SCMR 1064 where after exhaustive discussion and referring to various authorities it was observed as follows:- "What is permissible for Court of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same refuse to eject the tenant and can leave the landlord to a remedy in a civil Court first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the "reasonable" doubt but has convinced him that his plea is not frivolous and or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while rejecting him the Controller can leave scope; for civil suit by observing so and where he fails to do so, higher Court can do the same. "It needs to be seen whether in this case the first appellate Court was justified in directing the appellant's ejectment notwithstanding the deficiency pointed out by it regarding finding of fact. It is also to be seen as a second step whether any of the parties could in view of the afore-discussed positron regarding fresh litigation in civil Court be left to remedy through a civil suit, for determination of title. And lastly in the light of the finding of fact by the learned three Courts below, whether the appellant, so called tenant, could in this case be evicted and left to seek redress from the civil Court." This judgment was further clarified in Mir Salahuddin v. Qazi Zaheeruddin PLD 1988 SC.

221. Mr. Suleman Qasim, the learned counsel for the respondent has contended that another occupant Moosa Bhai who had also entered into agreement dated 24-11-1959 in respect of portion of the house in his possession was ordered to be ejected and in appeal filed in the High Court, it was held that as Moosa Bhai after coming to know the transfer by the Settlement Authority in 1971 did not challenge he accepted the transfer anti became the statutory tenant. The appellant had been agitating against the transfer and claiming ownership of the property which proves that he had not accepted the transfer. In these circumstances respectfully I am not inclined to follow this judgment. 1n view of the principles laid down in Rehmatullah's case and Salahuddin's case referred above to my view the question of title to the property is disputed legally and factually and cannot be decided by the Controller or by this Court. It is a fit and proper case where jurisdiction of the Civil Court should be invoked for purposes of determination of title to the property. I therefore set aside the order of the Controller. After the title to the disputed property is cleared by a competent Civil Court the respondent may approach the Controller The appeal is allowed. M.Y.H./M-838/K. Appeal allowed.