1993 PLP 1074 (CLC)

Dilawar Hussain for Respondent. Date of hearing: 13th January, 1993. These two F.R.As. are filed against a common order in two rent applications filed by the appellant against two separate tenants in respect of adjacent shops. Since common points of fact and law are involved in both these F.R.As., hence I propose to dispose them of by this common judgment.

2. Appellant Amir Ahmed had constructed shops on a plot bearing Custodian No.44 (site of erstwhile Madina Hotel), situated at Gharo, District Thatta. He let out these shops to the respondents separately at the rate of Rs. 100 per month. Tenancy Agreement for a period of eleven months was executed and the respondents agreed to pay rent on the first of every calendar month in advance. It is alleged that the respondents have committed default in payment of rent and electricity charges since October, 1980. Hence the prayer for ejectment was made.

3. The respondents resisted the application. In their written‑statement they denied the relationship of landlord and tenant between the parties‑ It was alleged that the appellant was not the owner of the plot in question. He had got the tenancy agreement executed by fraud and misrepresentation of fact. According to the respondents, this plot belonged to one Z.A. Khan and not 'to the appellant. On coming to know about the true ownership of the plot, the respondents stopped paying rent to the appellant and have started to pay to Z.A. Khan.

4. Issue as to relationship of landlord and tenant between the parties came into consideration before the learned Controller. In the light of evidence, oral as well as documentary adduced by the parties, the learned Controller decided this issue in favour of the respondents and dismissed the appellant's applications.

5. I have heard Mr. Aziz‑ur‑Rahman Memon, learned counsel for the appellant and Mr. Dilawar Hussain, learned counsel for the respondents. The admitted factual position in this case is that appellant was recorded tenant of the disputed plot. This plot was purchased by Z.A. Khan in open auction from the Settlement Authorities. The appellant, therefore, became a statutory tenant of ZA. Khan. The appellant on the basis of an Agreement of Sale which, according to the respondents, is a forged document, filed a suit for specific performance against ZA. Khan. Since the appellant was in possession of the plot, he also constructed shops on this plot and rented out the same to the respondents falsely and fraudulently representing that he was owner thereof. The appellant filed a suit for specific performance against ZA. Khan which was dismissed by Senior Civil Judge, Thatta on 8‑8‑1990. He filed an appeal in the Court of District Judge, Thatta, which was dismissed on 13‑5‑1991. The Sale Agreement was declared as forged by both these Courts. He then filed a revision application in this Court, but the suspension of the judgments of the lower Courts was not ordered, although the revision application had been admitted. The respondents have also filed suit for cancellation of Tenancy Agreement, which is pending in the Court of Civil Judge, Gharo.

6. It is, therefore, clear that in these circumstances the relationship of landlord and tenant between the parties does not exist. In PLD 1985 SC 1 (Province of Punjab v. Abdul Ghani) it was held that in order to base a claim for right to receive rent, the landlord will have to satisfy the Rent Controller about his title of ownership of the property. If the landlord fails to satisfy the Rent Controller beyond reasonable doubt about his ownership, the verdict will be against him. In 1989 SCMR 1188 (Allah Banda v. Niaz Ahmed) it was held that in spite of Agreement of Lease between the parties, the landlord will not be able to recover the rent, if he was unable to establish his title of ownership to the property. In an unreported decision in Civil Appeal No.K‑123/1987 of Zafar Hussain Mirza, J., it was held by the Supreme Court that it was the duty of the Rent Controller to decide the ownership of the landlord over the property in dispute before his application for ejectment can be allowed. Hence it is quite clear that unless a landlord proves that he is owner of the tenement in question, there would be no relationship of landlord and tenant between the parties. Since the appellant is not the owner of the plot on which these shops are situated, his application under section 15 cannot be allowed. The ‑learned Controller was, therefore, rightly justified in dismissing the same. I, therefore, do not find any justification for interfering with the order of the learned Controller. The F.R.As. are, therefore, dismissed. The appellant will, however, be at liberty to ask for eviction of the respondents, if his revision application in respect of suit for specific performance is decided in his favour. These are the reasons for short order passed today. A.A./A‑1330/K Appeals dismissed.