1983 PLP 2808 (CLC)

2. The facts of the case briefly stated are that the appellant was in occupation of shop No. 5‑P/1131/R, situate at Asghar Mall Road, Rawalpindi at a monthly rent of Rs. 50 p.m. as tenant under the respondent‑landlord. It is the admitted position that the appellant had been inducted into the property in dispute through one Lal and that he had been paying rent of the disputed property to Muhammad Ashraf attorney of Muhammad Akram respondent for a considerable time. The appellant, however, stopped making payment of rent some time in 1976. The respondent thereupon initiated ejectment proceedings against the appellant in the Court of Rent Controller, Rawalpindi on the ground of default in payment of rent.

3. The application for ejectment was resisted by the appellant, inter alia, on the ground that the relationship of landlord and tenant did not exist between the parties as the land underneath the shop in dispute was evacuee property and the respondent had no title thereto. It was further asserted that the appellant had been paying rent to the respondent regularly but when he learnt that the respondent. was not the owner of the property in dispute, he stopped making payment of rent taut was prepared to pay rent to any one who was found entitled to receive it.

4. As a sequel to the above objection the learned Rent Controller framed the following preliminary issue Whether the relationship of landlord and tenant does exist between the parties ?

5. The learned Rent Controller by his order dated 13th February, 1978 found the issue in favour of the respondent and as a result accepted the application for ejectment and ordered the appellant to hand over vacant possession of the shop to the respondent‑landlord within one month from the date of the order.

6. Feeling dissatisfied with the order of the Rent Controller dated 13th February, 1978 the appellant went up in appeal to the learned Additional District Judge, Rawalpindi who concurred in the finding arrived at by the learned Rent Controller on the issue afore‑mentioned and dismissed the appeal by the judgment dated 2nd May, 1979 with costs. Hence this second appeal by the appellant‑tenant.

7. The learned counsel for the appellant contended that the issue in question was not proved by the respondent and that the appellant had brought sufficient evidence on record to show that the land under neath the shop in dispute was evacuee and as a result the appellant was justified in stopping payment of rent to the respondent.

8. He further submitted that the transaction by which the respon dent purports to have acquired title was fraudulent to nature in that Ahmad Nadeem who allegedly purchased the site in dispute from the evacuee owner in 1943 was then a minor of three year3 of age and could not have acquired in law the property under a contract. He referred to Annexure "A" a certificate of date of birth annexed with S.A.O. No. 352 of 1979 to show that Ahmad Nadeem was born on 1st December, 1939 and was hardly three years of age in 1943. He urged that the sub sequent sale of the site in dispute by Ahmad Nadeem to his own mother on 8th May, 1968, and, in turn, the sale by her to the present respondent on 5th July, 1963 were all invalid as the basic sale was without any valid foundation.

9. The third contention raised by the learned counsel was that under section 54 of the Transfer of Property Act no sale of immovable property in an urban area could be made if the value was Rs. 100 or more except through a registered instrument whilst if the value was less than Rs. 100 the transfer could be made either by a registered document or by delivery of the property. He argued that in the case in hand neither any registered instrument of sale has been produced which conferred title on Ahmad Nadeem nor it has been shown that the property had been delivered to him. In fact, he said, possession could not be delivered of the site in dispute to Ahmad Nadeem he being a minor at the relevant time.

10. The last contention raised by the learned counsel was that the appellant in any case was not a wilful defaulter as he had stopped payment of rent to the respondent bona fide on learning that he did not have title to the land underneath the shop in dispute. Reliance was placed by the learned counsel in this regard on Risaldar Azimuddin v, Dilshad Hussain (P L D 1973 Kar. 284) and Muhammad Yousaf v. Said emir (P L D 1979 Pesh. 20) to contend that in the circumstances of the case the appellant was justified in denying the title of the respondent‑landlord.

11. I am afraid the contentions raised by the learned counsel have no force. In so far as the first contention is concerned, it may be pointed out that the admitted position being that the appellant was inducted into the shop in dispute as a tenant under the respondent through one Lai Khan and that he had been paying rent to the respon dent through the latter's attorney clearly established the respondent to be the landlord and the appellant the tenant of the shop in dispute. Additionally, the production of Exb. A‑1, copy of sale‑deed and copies of assessment registers A‑2 and A‑3 also established the relationship as observed by the lower Appellate Court. The only material thing brought on record, in rebuttal, was the deposition of P. W. 1. the Settlement Inspector who merely deposed that according to the record of the Settlement Department the land underneath the shop in dispute was shown as evacuee and that certain persons had filled Form BS pertaining thereto. Now, from the above evidence the Rent Controller who was a tribunal of limited jurisdiction, could only determine as to whether the relationship of landlord and tenant existed between the parties. The evidence brought on record by the respondent established that part of it whilst the one brought on record by the appellant only tended to show that ownership title may be lacking in the respondent. But then ownership has nothing to do with the position of a landlord. The definition of the terms "Landlord" and `tenant' as given in the West Pakistan Urban Rent Restriction Ordinance only state that the "Landlord" is a person who is entitled to receive rent in respect of an building for the time being, whilst a `tenant' is the person by whom or on whose account rent is payable for a building. The admitted position, as already pointed out above, was that the appellant was paying rent and liable, therefore, to the respondent, whereas the respondent was receiving it. That being so, the relationship of landlord and tenant stood established and no valid exception can be raised against the findings of the. Courts below on this issue.

12. The second contention raised was as to the fraudulent nature of the transaction by which the land in dispute was allegedly acquired by the respondent. Suffice it to say, this was not a subject for adjudication by the Rent Controller. The contention in the context of the present controversy is misconceived. It may be added here that on merits as well this has no basis. The whole premises had been that Ahmad Nadeem the original vendee, was a minor at the time of purchase of the land by him in 1943 from the evacuee owners. Now to show that he was a minor, reliance has been placed on Annexure "A" of S.A.O. No. 352 of 1979, which is a birth certificate. This birth certificate relates to some Abdul Rauf and there is no mention of the name of Ahmad Nadeem anywhere therein. Not only that no link has been established between Ahmad Nadeem and Abdul Rauf that the two names were of the same person. Again this birth certificate appears to be not on the record of the Courts below and has been for the first time placed with the appeal in this Court and cannot be even looked into for purposes of resolving the controversy involved in the case. The contention, therefore, being without any basis must necessarily fail.

13. Again, the third contention is also misconceived so far as the present controversy is concerned. It is incomprehensible as to how the sale in question was hit by section 54 of the Transfer of Property Act. The position as brought on record is that the sale in favour of Ahmad Nadeem by evacuees was in the swat of R.s.

99. Now section 54 of the Transfer of Property Act does riot require registration of an instrument of sale if the value is less than Rs.

100. So far as the delivery of possession of the property in dispute is concerned, the admission that the person, viz, respondent who derived title from Ahmad Nadeem inducted the appellant into the premises in dispute by itself shows that tai possession must have been ‑.0th the said Ahmad Nadeem from whom the respondent took possession ‑ and the: delivered it to the appellant. This contention also, therefore, has no force.

14. Adverting now to the last contention raised by the learned counsel, it may be pointed out that the default is admitted and the reason given for non‑payment of rent is that there was challenge to the ownership of landlord in respect of the premises in dispute. Now, this is no ground for refusing to pay rent. I asked the learned counsel if prior to the institution of the application for ejectment the appellant had paid or tendered rent to any person or deposited it in Court or with the Custodian whom he considered to be the real owner of the property. The answer was in the negative. Now, this being the position, it cannot be said that the default in payment of rent was not intentional because there are . no bona fides whatsoever exhibited. It may also be pointed out that a person who is once a tenant is always a tenant and cannot deny the title. of landlord especially when there was no contestant to claim rent from the tenant. The authorities cited by the learned counsel for the appellant have been rightly distinguished by the Courts below and do not apply to the facts of the case. Contrarily Kalimullah v. Amin Hazin and others (1976 S C M R 177,) which is applicable squarely to the case in hand has firmly set down the principle that once a person has accepted another as a landlord and entered into possession of the premises as such l. tenant, he cannot be allowed to challenge the title of his landlord.

15. The distinguishing features of the appeal ‑disposed of by this order are only of the number of shop, rate of rent, period of default and for facility of reference the details of each are given hereunder in a tabulated form :

16. In view of the foregoing discussion I find no, merit in these appeals which are dismissed in limine. .M. Y. H. Appeals dismissed.