1990 PLP 1107 (MLD)

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑‑S.15‑‑Ejectment of tenant‑‑Relationship of landlord and tenant having been proved between the respondent and appellant, decision of Rent Controller suffered from no legal infirmity and he had rightly held on basis of evidence on record that appellant being tenant was defaulter in payment of rent and thus liable to eviction. Ghulam Sarwar Abbasi for the Appellant. This appeal is directed against the order of the learned IInd Senior Civil Judge and Rent Controller, Larkana, dated 28‑3‑1989, thereby ordering the eviction of the appellant from the premises measuring 476 Sq. yd. immovable property bearing Serial No. 798 Ward `A', Larkana. The respondent as landlady of the premises in question filed an application for eviction of the appellant therefrom on the grounds of default in payment of rent at the rate of Rs. 60 per month for 23 months amounting to Rs. 1,300 for her and her four sons personal bona fide use and for reconstruction. It was stated in the application that the whole house standing on C. S. No. 798 was transferred to her by way of gift and a notice for payment of rent was duly served upon the appellant through registered post A/D and the extract from the property Register was attached with the application for eviction which indicated that the entire house was transferred to her by gift from the previous owner, Mst. Hashmi Bibi vide gift deed, dated 19‑9‑1985. The mutation thereof was duly effected in favour of the respondent. The appellant filed written statement denying the respondent's claim. He asserted that he is the owner of 700 sq. feet from the said survey number having purchased it from Mst. Hashmi Bibi through an agreement of sale, dated 24‑4‑1985 and hence the respondent was not entitled to claim any rent and that there did not exist any relationship of landlady and tenant between the parties. He admitted to have received the notice demanding the payment of rent but pleaded that on receipt of the notice he had shown the agreement of sale to the son of the respondent (without disclosing the name of the son) who was satisfied about his right. 1n support of her case, the respondent examined Mahmoodul Hassan, her son and attorney, whereas the appellant besides filing his own affidavit also filed the affidavits of two witnesses named Syed Mutahir Hassan and Syed Muhammad Ishrat. The learned trial Court vide his impugned order decided the issue relating to the existence of relationship of landlord and tenant between the parties in the affirmative and, consequently, he held that the appellant had committed default in payment of rent for the period in question. In the result, the application for ejectment made by the respondent was allowed and the appellant was directed to hand over the possession of the disputed premises to the respondent within 60 days from the date of the order. Hence this appeal. Having heard the arguments of Mr. Ghulam Sarwar Abbasi, learned counsel for the appellant, I reached the conclusion that there was no merit in this appeal. I, therefore, by a short order dismissed it in limine for the reasons to follow. I now proceed to record my reasons therefore. The plea of the appellant that he had purchased the portion of the disputed premises constructed on an area of 476 Sq. yards for a consideration of Rs. 23,000 is based on some agreement of sale allegedly executed by Mst. Hashmi Bibi wife of Syed Inayat Ali deserves to be repelled outright inasmuch as the ownership of any tangible immovable property of value of 100 rupees and upwards can only be made legally by registered instrument. The alleged agreement of sale could not, therefore, confer the right of ownership of the said property in the appellant. Moreover, the appellant has not even filed any suit for specific performance of contract against the said seller as has been highlighted by the learned IInd Senior Civil Judge and Controller. On the other hand, the respondent has proved the said property having been gifted to her by producing the gift deed (Exh. 19). She also served the notice of transfer of the disputed immovable property to her upon the appellant, who did not admittedly give any reply of the said notice in writing mentioning the alleged fact of the donor having agreed to sell the disputed portion to him. The learned Rent Controller has for cogent and valid reasons held that there had come into existence the relationship of landlord and tenant between the respondent and the appellant, upon the execution of the gift deed by Mst. Hashmi Bibi in favour of the respondent and the service of notice of the transfer thereof by the respondent on the appellant calling upon him to pay the rent further vested in her the right to file the application for ejection of the respondent. Under the aforesaid facts and circumstances of the case, I find that the decision of the trial Court suffers from no legal infirmity and he has rightly held that the appellant is a defaulter in payment of rent from 1‑10‑1985 to 1‑10‑1987 as admittedly no rent was paid by him to the respondent. Before parting with the case, I would also like to add that the learned counsel for the appellant also developed an argument before me that since the donor had not attorned the payment of rent to the respondent, she had not parted with the possession of the gifted property to the extent of the portion in his possession, in favour of the respondent and hence one of the basic ingredients to make it a valid gift remained unsatisfied. Consequently, the ownership of the said shop, according to him, did not vest in the respondent notwithstanding the execution and registration of the gift deed. I am afraid, this plea is not available to a tenant. As a donee, the respondent was only under an obligation to serve the notice on the tenant (the appellant), which she admittedly did and also produced a copy thereof during the ejectment proceedings. The appellant also admitted its receipt in his written statement as well as during his evidence recorded by the learned Rent Controller. In the result, the appeal is held to he devoid of merits and it is accordingly dismissed in limine. AA./M‑1043/K Appeal dismissed.