P L D 1977 Karachi 277 (PLP)

The appellant is tenant in half portion of Quarter No. 530, Block No. 4, Liaquatabad, Karachi, of which the respondent is land lady. The respondent filed an application for the ejectment of the appellant on 30th September. 1963 on the grounds of default in payment of rent, bona fide personal use, causing of nuisance to the people living in the neighbourhood and demolition of a part of the premises in question. The respondent's claim was that half portion of the disputed quarter was trans ferred to her by way of gift by her mother whereas the remaining half portion was sold by her mother to one Sarwar. However, the appellant's tenancy was confined to the half portion which was transferred to the respon dent by her mother by way of gift.

2. The application for ejectment was resisted by the appellant on the ground that notice under section 13 (A) of the West Pakistan Urban Rent Restriction Ordinance, 1959, had not been served upon him. The appellant contended that the premises had not been transferred to the respondent by her mother and that the respondent's mother had accepted rent from the appellant upto 31st August, 1968. This fact was admitted by the respondent that the rent upto 31st August, 1968, was paid by the appellant to her mother. It was further contended that the requirement of the house on the ground. of bona fide personal use was also not genuine. It was urged that the quarter occupied only 40 square yards of land with one room built upon it, whereas the respondent was at that time living in a house which was constructed on 80 square yards of land. However, it was not denied that house was a rented house. The other grounds of being nuisance to the people living in the vicinity and the demolition of a portion of the house were also strongly repu diated by the appellant.

3. Since the existence for the relationship of the landlady and the tenant between the parties was denied by the appellant, a preliminary issue was framed on the point of tenancy which was decided on 14th July, 1969, in favour of the respondent. While dealing with this question I may refer that to prove her proprietary rights over the house in question the respondent produced a receipt of the payment of ground rent to K. D. A. from Decem ber, 1960 to January, 1961 (Exh. A/1) and Allotment Order of the quarter dated 17th July, 1967, as Exh. A/2. It was on the basis of these two docu ments that the learned Rent Controller held that the respondent was owner and. landlady of the house and not her mother as was averred by the appel lant:

4. After the decision of the afore‑mentioned preliminary issue the trial Court took up the main application and framed issue on the grounds raised for the ejectment of the appellant. After recording the evidence of the parties. the Court reached the conclusion that the respondent had been able to successfully establish the ground of bona fide personal use and therefore he ordered the appellant's ejectment from the premises in question vide order dated 8th September, 1972. As far as the other grounds were concerned, the same could not be proved before the learned Rent Controller by the respondent.

5. An appeal was preferred by the appellant against the order of the: learned Rent Controller but the learned III Additional District Judge. Karachi: dismissed the same on 9th April, 1973. It is against this order as well as the order of Rent Controller above‑quoted that the present 2nd appeal has been fled.

6. The main ground raised by the learned counsel for the appellant is that the respondent had not been able to prove that she was owner and landlady in respect of the disputed premises as the document Exh. A/2 issued by the K. D. A. shows that she had been allotted the whole of the quarter whereas she herself claimed in the application that only half portion of the house which was occupied by the appellant had been gifted to her by her mother. I have examined the document Exh. A/2 and found that it does not specifically mention as to whether the respondent was allotted the whole of the quarter or a portion. thereof. The document only refers to the number of the quarter and even if by the fact of mentioning the number of the quarter it is inferred that the document refers to the ownership of the respondent in respect of the whole of the quarter no benefit can be derived by the appel lant from it because, firstly, the question before the K. D. A‑ was not the determination of the rights of the respective parties to this quarter and second ly, the K. D. A. might have inadvertently omitted to mention that the respondent was owner of the half portion of the quarter and not the whole. However. the fact remains that the ownership of the quarter or a portion thereof vests in the respondent. The contention of the learned counsel for the appellant does not carry any weight particularly in the light of the fact that it has been frankly admitted by him that the appellant was residing in half portion of the quarter which belonged to the respondent. All what he has grump led is that the respondent's mother had been receiving the rent upto 31st August, 1968 and that a notice in respect of the ownership required to be given under section 13 (A) of West Pakistan Urban Rent Restriction Ordinance, 1959 had not been given to the appellant. However, this ground is not naturally available to him because one of the grounds in the ejectment application is nonpayment of rent. This position has been candidly conce ded by the learned counsel for the appellant. Reverting back to the discus sion on the ground that the document Exh. A/2 did not mention that the respondent was owner of the half portion of the house and not the whole of the house, I may further add that the respondent's mother did not come forward during this long period of eight years of litigation to assert that the respondent was not owner of the disputed portion of the house. In view of this fact the objection raised by the learned. counsel for the appellant does not carry any weight and the same is therefore repelled.

7. The learned counsel for the appellant next attempted 'to argue that the finding of both the Courts below that the disputed portion of the quarter was bona fide required by the respondent for the personal use and occupation has not been substantiated as the evidence led by the respondent on this ground was inconsistent with the pleadings in the application for ejectment. In short, he attempted to argue that both the Courts below failed to appre ciate the evidence led by the parties on this ground. However, when I poin ted out to him that it was a concurrent finding of fact and it was not open for the second appellate Court to disturb the same or embark upon appreciation of evidence, he frankly conceded that this ground was not available to him either.

8. For the reasons given above, I do not find any substance in this appeal and dismiss the same but with no orders as to costs. The appellant is however, allowed four months time to put the respondent in vacant posses sion of the disputed premises. S. Q. Appeal dismissed,