2000 PLP 1414 (YLR)

4. The respondent/tenant contested the application and claimed that he is not in possession of the premises as claimed by the appellants and is in possession of Property C.S.60/146‑1‑B owned by Evacuee Trust Property and is their tenant since last 50 years, he has nothing to do with‑the property of which the ownership is claimed by the appellants. He seriously disputed the relationship.

5. The appellant No.1 filed affidavit‑in- evidence elaborating and producing various documents tending to show that he is owner of the property. In evidence he has produced Exh.12 which is an order dated 14‑7‑1981 passed by the Assistant Administrator, Evacuee Trust Property, Sukkur wherein it has been observed that "Nisar Ahmed is not in possession of Evacuee Trust Property bearing C.S. No. 60/146/1‑B which is already in tenancy occupation of Illahi Bux Shaikh and Mr. Nisar Ahmed is existing occupant of portion of the transferred property viz. 60/146/1‑A". This order was not believed by the Court to be authentic as it did not bear the stamp or any offic?al seal but subsequent Exh.13 which is an order in appeal filed by Nisar Ahmed before Administrator, Evacuee Trust Property dated 29‑9‑1981 tends to show that (Exh.12) is the very order against which the respondent had preferred an appeal. In appeal it was held that "Nisar Ahmed claims that he is not occupant of 1‑B which is trust property while in fact he has occupied a portion of 1‑A which has no relation with the department. His appeal was accordingly dismissed. The appellant has produced Rubkari issued by City Surveyor, Shikarpur dated 9‑7‑1981 which also shows that the respondent is in possession of the premises claimed by the appellant.

6. The respondent/tenant in support of his claim has filed his affidavit‑in‑evidence disputing the relationship. He has also produced extract from the Property Register Card and two challans of National Bank of Pakistan showing payment of Rs. 2,030 and Rs. 7 respectively to show that he has paid the rent to the Evacuee Trust Board.

7. The learned Rent Controller on examining the documents produced by both the parties and referring to above, came to the conclusion that it is not clearly stated in the ejectment application and so not clearly deposed in affidavit‑in‑evidence that in what month of the year 1975‑76 premises in question was given out by him to the tenant and resultantly dismissed ejectment application.

8. The learned counsel for the appellants has placed reliance on the case reported as Muhammad Shabbir and another v. Mst. Hamida Begum 1992 MLD 323. 9. 1 have heard both the learned counsel, perused the record and orders impugned

10. The definition of the tenant as given in section 2(j), Sindh Rented Premises Ordinance, 1979 for ready reference is reproduced as under: (i) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes ‑‑‑ (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant."

11. Definition of tenant as reproduced above has undergone a grest degree of transformation. It is more clear and broad based than the definition of tenant contained in the repealed Ordinance VI of 1959. The definition cannot be better expressed than his lordship Mr. Justice Imam Ali G. Kazi (as he then was) expressed in the case of Muhammad Shabbir referred to above. After considering the definition contained in both the laws at page 327, it was held: "A person who is in possession or occupation of a premises owned by someone else although he may not have undertaken to pay rent to the owner is normally bound to pay rent to him as consideration for being in possession or occupation of that premises. Such a person shall be treated to be a tenant for the purpose of the Ordinance. This new category of tenants has been introduced for the first time in the definition of term 'tenant' under the Sindh Rented Premises Ordinance, 1979. Appellants in these appeals have no right interest or title over the premises in question but admittedly they being in possession of the premises will be ordinarily bound to pay rent as consideration being in possession and they will be treated as tenants for the purpose of the Ordinance in view of the changed definition of term tenant. Their relationship of being tenants of the respondent in the above circumstances is, therefore established. The arguments advanced by Mr. Asad Ali Bilgrami, Advocate for the appellants have no force. "

12. From the above discussion it can be safely concluded that, a person found in occupation of a premises of which he is not the owner, any defence taken by such occupant in ejectment proceedings claiming hostile title or interest in the property or claims tenancy under some other person. If such defence does not succeed then conversely the claim of the landlord/owner seeking ejectment of such occupant would succeed and relationship under the Sindh Rented Premises Ordinance, 1979 would be deemed to exist.

13. Case of the appellants in the instant case is still on a better footing than the, case of Muhammad Shabbir (supra). Respondent/ tenant herein claimed to be the tenant of Evacuee Trust Property (E.T.P.) which claim was refuted by the E.T.P. Authorities in appeal (Exh.13) wherein it was held that the appellant is the owner of the subject property, same having been transferred in his favour by the Settlement and Rehabilitation Commissioner, Sukkur vide order dated 18‑12‑1963. On enquiry from the Court whether the respondent/opponent has impugned or challenged the finding of E.T.P. Authorities given vide Exh.13, answer was in negative. Learned counsel contended that he could assail the order at any time and it was then for the Civil Court to decide. Fact remains that after `lapse of almost 19 years such order has not been challenged which under all fairness has attained finality.

14. The claim of the respondent under the circumstances cannot be justified. He has produced two challans showing payment of rent to the Evacuee Trust dated 27‑7‑1981 and 2-9‑1981 which challans admittedly were managed as letter issued by Assistant Administrator (Exh.l l) advising the Bank not to accept the same. No other document has been filed by the respondent/opponent to show or to substantiate his claim that he is tenant of E.T.P. in respect of the subject property which he claims to be in his occupation since last 50 years.

15. Respondent has vainly tried to argue that even if it be held that there exists relationship of landlord and tenant then in absence of notice under section 18 of Sindh Rented Premises Ordinance, 1979, he is not a defaulter.

16. The arguments are fallacious. The respondent himself initiated legal proceedings before the E.T.P. Authorities disputing the title of appellant and he claimed to be tenant of E.T.P. in which proceeding he failed and appellant to his knowledge was held to be the owner, as far back as on 29‑9‑1981 when orders on his appeal were passed. Under such circumstances he had knowledge that appellant is owner/landlord under all fairness he was obliged and bound to pay rent for his occupation at least from the date of such I determination.

17. The finding of the learned trial Court on the issue of relationship under facts and circumstances in my humble opinion is not sustainable. Same is accordingly reversed.

18. Since the appellant had denied the, relationship, admittedly he has not paid the rent to the present appellants which he is liable to pay with effect from three years prior to the date of institution of the ejectment proceedings. As such the default is automatically established, and resultantly ejectment application as prayed is allowed. However, under the circumstances of the case the respondent is directed to vacate and hand over premises within six months from today subject to payment of rent, in case the rent is not paid the appellants would be entitled for execution before the trial Court. Appeal is allowed. Q.M.H./M.A.K./1‑5/K Appeal allowed.