1989 PLP 306 (CLC)

(2) Whether the opponent has sub‑let the disputed premises ? (3) Whether the opponent has made alterations and additions in the disputed premises ? (4) What should the order be ?"

2. Point No.l was answered in the negative and against the appellant and the other two points were left undecided and, under point No.4, the ejectment petition was dismissed on the basis of findings on point No.l. As stated earlier, the respondents absented and did not persue their defence after filing of the written statements.

3. In this Court Mr. S.A. Siddiqui, Advocate, filed his memo of appearance on behalf of the respondents but thereafter neither he made his appearance before the Court nor the respondents made any other arrangement for their representation.

4. The record of the lower Court shows that the respondents had last appeared before it on 25‑11‑1985 and thereafter they chose to remain absent on the subsequent dates which were 20‑1‑1986, 12‑2‑1986, 6‑3‑1986, 12‑7‑1986 and 16‑7‑1986. Eventually, the right of the respondents to cross‑examine the appellant was closed on 16‑7‑1986 and on the next date which was 22‑7‑1986 the evidence of the respondents was also closed because of their absence and arguments of the counsel of the appellant were heard whereafter the ejectment petition was dismissed.

5. Findings of the learned Rent Controller under point No.l suffer from misstatements of facts. It is stated that the respondents had claimed to have purchased the house and "a consideration of Rs.306 was paid as advance on 13‑9‑1978" . Para 1 of the written statement is relevant in this regard and I nowhere find any mention of Rs.306 as the advance money paid on 13‑9‑1978. According to the written statement a sum of Rs.30,000 had been paid on 13‑9‑1978 by way of advance. Further on, learned Rent Controller states that "this property at the best as per case of the applicant was owned by Mst. Hamida Begum and the applicant and the opponent both were her legal heirs " This is again a misstatement of fact since it is not the case of the appellant that he arid opponent Muhammad Anwar were the heirs of deceased Mst. Hamida Begum. This is not the case even of the respondents themselves. Learned Rent Controller has obviously been quite careless in stating the facts. 6‑. The undisputed facts are that deceased Hamida Begum was the owner of the premises in question and appellant is one of the legal heirs. As per para. 1 of the written statement, deceased Muhammad Anwar had taken possession of the disputed premises in furtherance of the agreement of sale. This agreement of sale is said to have been filed with the written statement as Annexure 'A' but, as a matter of fact, Annexure 'A' is copy of PT‑I Form and not of sale agreement. The copy of the sale agreement was subsequently filed alongwith an application. Application is at page 123 and this copy of agreement of sale is at page 125 of the file of the learned Rent Controller. I have examined this copy of the agreement of sale and I am of the view that this created no vested rights in the respondents. First, as per para. 1 of the written statement, the alleged agreement of sale was entered into on 3rd May, 1976. This is no doubt the date of purchase of the stamp‑paper as is evident from the date‑stamp thereon but the agreement of sale is dated 13th September, 1978.. It is thus evident that this sale‑agreement was written on a stamp‑paper which was purchased more than two years ago. Second, para. 2 of this agreement of sale clearly stipulates that Muhammad Anwar shall continue to be a tenant of Mst. Hamida Begum on the monthly rent of Rs.50. It is also mentioned that Muhammad Anwar was an old tenant in the premises under Mst. Hamida Begum on the monthly rent of Rs.50. This admission in para. 2 of the sale agreement contradicts the claim in para. 1 of the written statement that deceased Muhammad Anwar "entered into possession of the premises in furtherance of the execution of agreement of sale".

7. The respondents had filed objections to the appellant's application under section 16 of Sind Rented Premises Ordinance, 1979, and in para. 5 thereof it is stated that the rent had not been settled anywhere but the "opponent" agreed to .pay Rs.50 per month till the consideration was not fully paid. This averment is rather contradictory. At one hand it is stated that the rent had not been settled anywhere and on the other it is stated that it was Rs.50. The respondents did not make it clear as to what was this payment of Rs.50 per month if it was not the rent. This assertion of the respondents stands further contradicted by para. 2 of the agreement of sale in which it is clearly conceded by the respondents that deceased Muhammad Anwar was an old tenant in the premises on the monthly rent of Rs.50 and he had undertakan to continue to remain as a tenant and to pay the rent at this rate till the execution of the sale‑deed.

8. The appellant has tendered in evidence his affidavit and the affidavits of Noor Muhammad and of Mst. Noor Jehan Begum (sister of the petitioner). The evidence of the petitioner went unrebutted as the respondents did not cross‑examine any of the three witnesses and chose to remain absent.

9. After going through the record I am of the view that the findings of the learned Rent Controller on issue No.l cannot be sustained. I do not agree with him that the mere fact that the respondents had filed suit for specific performance against the appellant is sufficient to throw shadow over the title of the appellant. It was for the Civil Court to decide the suit for specific performance. It was for the respondents to show that this suit had been either pending or decided in their favour.. It appears that the suit has been dismissed as otherwise the respondents would not have chosen to remain absent from the Court of the learned Rent Controller as well as from this Court. Even otherwise, the pendency of the suit of specific performance does not throw any shadow over the title of the appellant. An agreement of sale does not create any vested rights in the property in favour of the respondents. As stated above, deceased Muhammad Anwar had conceded in para. 2 of the alleged agreement of sale that he was an old tenant and would continue to be till the completion of the sale in pursuance of the said agreement of sale. In other words, vide para. ,2 of the alleged agreement of sale, deceased Muhammad Anwar and after his death his legal heirs continued to be the tenant of Mst. Hamida Begum and were under obligation to pay the monthly rent. After the death of Mst. Hamida Begum, deceased Muhammad Anwar and now his legal heirs became the tenant of the heirs of Mst. Hamida Begum. The appellant, being one of the heirs and co‑sharers, is entitled to file ejectment petition. Relationship of landlord and tenant, thus, exists between the parties and findings under point No.l are, therefore, set aside.

10. This brings us to the remaining two points with respect to the subletting of the premises and making unauthorized additions and alterations therein. Learned Rent Controller has not given any finding on these points and this Court may either remand the case to the learned Rent Controller for decision of these points or decide these points itself. In view of the old nature of the case I opt for the second option.

11. The unrebutted evidence of the petitioner and his two witnesses is sufficient to decide these two points in the affirmative and in favour of the appellant. As a matter of fact, both these points were admitted by the respondents in their two written statements and they have not denied the allegations of subletting and of making additions P and alterations in the premises. Their defence was merely that they had become owners of the premises on the basis of the alleged sale agreement. They have failed to prove their defence. I accordingly decide both these points in the affirmative and in favour of the appellant.

12. In view of my above findings, this appeal is accepted, order of the learned Rent Controller is set aside and the respondents are directed to put the petitioner into possession of the disputed premises. Since the respondents have opted to remain absent and have not contested this appeal, no time is allowed to them for vacating the premises. The respondents shall also bear the costs of this appeal. H . B . T . /J‑56/ K Appeal accepted.