1990 PLP 965 (MLD)

9. The photo‑copy of the declaration of waqf is on record (Annexure `B'). It is a registered deed, which has been acted upon. The appellant, who has been sued as tenant has got no locus standi to challenge it. This view was taken by the Supreme Court in the case of Muhammad Ishaq through his legal heirs v. S. Khurshid Alam, reported in P L D 1989 S C 353, in relation to a gift. The appellant, therefore, cannot question the validity of Waqf deed.

10. Admittedly the disptued premises originally belonged to Muhammad Ramzan. (P.W.3), who claims to have dedicated it to respondent in the name of God by executing the declaration of waqf. The appellant raised a plea of ownership when asked by the office‑bearers of respondent to pay rent. The matter ultimately went to Sub‑Martial Law Administrator concerned who referred it to Natha Khan, the Area Councillor (P.W.4) who decided the dispute, whereby the appellant accepted the respondent as landlord and put his thumb impression on the deed in token of having accepted the same. The appellant admits his L.T.I. on this compromise deed (Annexure‑A), which has been proved through Natha Khan (P.W.4) who had brought about this compromise. The cross-examination made to appellant on this point is material and relevant extracts are reproduced below:‑‑ "I know that Ramzan has transferred property by way of Waqf deed. I had given application to Martial Law Authority against Ramzan. Martial Lave Authority has directed us to the Councillor where the compromise was arrived at. The matter was settled on 18‑5‑1981. My thumb impression was obtained on compromise by way of mis‑representation and fraud. I see Annexre `D' and say that it bears thumb‑impression and seal of Martial Law Authority and signature of Councillor."

11. The appellant who alleges that his thumb impression was obtained by fraud and misrepresentation did not file suit for its cancellation. With this admitted position the version of Ch. Faiz Alam (P.W.1) Secretary of respondent about the payment of rent by appellant for the months of June and July 1981, appears to be true, specially when the counterfoils of the receipt book are on record (0/3 and 0/4).

12. The appellant claims to have purchased the disputed premises from Muhamamd Ramzan (P.W.3) vide Exh.0/2. Muhammad Ramzan (P.W.2) has disputed this receipt by denying it on oath. This question is considered by learned Rent Controller who rejected the plea of appellant in the following words:‑‑ "As against this the opponent has produced a receipt dated 2‑8‑1971 said to have been executed by P.W. Muhammad Ramzan, wherein he has acknowledged the sale of House No. 169 Mehmoodabad Karachi to opponent and receipt of Rs. 10,000 from him as advance out of total consideration of Rs. 18,000 and has contended that the same is receipt of purchase of disputed premises by him and that he is the owner of the same and that there is no relationship of landlord and tenant between the applicant and him, and D.W. Muhammad Nazir and Rasool Khan who are the attesting witnesses of the said receipt (the execution of which has been vehemently denied by P.W. Muhammad Ramzan and which had been also referred to handwriting expert at the request of the applicant and he has opined that the signature over the same are of P.W. Muhammad Ramzan), have also testified that the same had been executed by the said P.W. Muhammad Ramzan. However, the same is of no avail to opponents, firstly for the simple reason that the same refers to House No. 169 of Mehmoodabad Karachi whereas the number of the plot of disptued premises is 437, Final. No. 287, MAC III and Excise and Taxation Department's No. of the same is AIC‑2S‑12 & 13, and secondly for the reason that in his written statement the opponent has averred that they had purchased the plot of the disputed premises from the said P.W. Muhammad Ramzan and thereafter he himself constructed two rooms over the same and in his cross‑examination also he has specifically denied the existence of any house at the plot of disputed premises at the time of alleged sale of the same to him by the said P.W. Muhammad Ramzan, whereas the said receipt pertains to sale of House No. 169 and not plot. Even otherwise admittedly D.W. Muhammad Nazeer is a friend of opponent while Rasool Khan is his business partner and they appear to have testified in favour of opponent due to that. As regards the report of handwriting expert since he has not been examined, the same cannot be treated as a piece of evidence as has been held in 1987 P Cr.L J (Kar.) 247 (255‑E) and assuming for the sake of arguments, that the said receipt is genuine, even then the same does not confer any title upon the opponent because the same does not pertain to disputed premises and that is a dispute between the said P.W. Ramzan and the opponent and the applicant mosque has nothing to do with that. The applicant has got registered instrument of Waqf of disputed premises in its favour and vide settlement effected by the Illaqa Councillor between the opponent and the applicant, the opponent has admitted himself as tenant of applicant though in his cross‑examination he has alleged that his LTI on the same had been obtained by fraud and misrepresentation but this is only an afterthought allegation as no such plea has been taken by him in his written statement or affidavit in evidence:' I fully endorse the view taken above.

13. It will not be out of place to mention here that no attempt was made by the appellant to enforce the "so said agreement" by filing a suit for specific performance of contract. Since he is proved to be a tenant of respondent, he cannot be permitted to dispute its title and his own status as tenant.

14. The Rent Controller is not bound to consider an objection about his jurisdiction at a preliminary stage which appears to be frivolous and baseless on the face of record. Mr. Muhammad Ashraf Bhatti, learned counsel for appellant has cited the following authorities in an attempt to satisfy this Court that a preliminary issue on the question of jurisdiction was necessary:‑‑ (i) Akhtar Ali Pervaiz v. Altaf‑ur‑Rehman, P L D 1963 Lah. 390. (ii) Habibullah v. Bawa Vasdevgir Chelo Shombhugar P L I)1968 Kar. 869. (iii) Banaras Khan v. Sardar Khan and 8 others, 1972 S C M R 588. (iv) Settlement and Rehabilitation Commissioner, Hyderabad Division Karachi and another v. Mannu Khan and 3 others, 1973 S C M R 61 (v) Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064. (vi) Altaf Hussain v. Mst. Ayesha N L R 1986 U C 446. . (vii) Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others P L D 1987 SC 447.

15. On the other hand Mr. Rana Muhammad Ahmed Khan, learned counsel for respondent has invited my attention to following cases with a view to satisfy that in the given circumstances the procedure adopted by learned Rent Controller was proper:‑‑ (i) Aziz Begum v. Faiyaz Butt N L R 1980 Civil (Lah.) 134. (ii) Mehrajdin v. Muhammad Ismail 1980 S C M R 764. (iii) Ghayoor Alam v. Muhammad Jamil 1983 C L C 1274. (iv) Nisar Ahmed and others v. District Judge, Muzaffargarh and others 1984 S C M R 317. (v) S.M. Hayat v. Commodore (Rtd.) Inamul‑Haq Malik and another 1984 C L C 3176. (vi) Province of Punjab, through Education Secretary and another v. Mufti Abdul Ghani P L D 1985 S C 1. (vii) Guftar Shah v. Chhoti Begum and 4 others 1986,C L C 707, and (viii) Abdul Rehman and another v. Shahid Latif and .2 others 1988 S C M R 120. 15‑A. The ratio decidendi of the above authorities cited at the Bar is:‑‑ (a) That the Rent Controller need not consider an objection about jurisdiction which appears to be frivolous or baseless. (b) That the Rent Controller alone is competent to decide question of relationship of landlord and tenant between the parties. (c) Where the admitted facts ‑do not create any doubt about the title of landlord, the Rent Controller is not obliged to dismiss the ejectment application directing the landlord to establish his title in a Civil Court. (d) Framing of the preliminary issue about relationship of landlord and tenant between the parties is not always necessary. (e) Deposit of arrears of rent may not be ordered where tenant objects to the jurisdiction of Rent Controller, and in such a situation question of jurisdiction be decided first.

16. In somewhat similar circumstances Saleem Akhtar, J observed in Guftar Shah v. Chhoti Begum and 4 others, reported in 1986 C L C 707, that; "In my view in every case it is not necessary to frame a preliminary issue. It is correct that if an issue has been raised which goes to the root of the jurisdiction of the Controller, steps should be taken to decide it first before deciding any other issue on merits. This observation is relevant and applicable mostly, in the cases when the Controller is asked to pass an order for deposit of rent.' At that stage the issue relating to relationship should be decided frst. But where such a situation does not arise and the Controller takes up this issue with other issues and gives his finding in a consolidated order, it cannot be termed illegal nor it vitiates the entire proceeding before the Controller. It is, however, desirable that issue relating to relationship must be decided first."

17. The above observations are fully attracted to this case where the order of deposit of. arrears of rent and monthly rent due was also deferred.

18. On personal requirement also the respondent has proved its case, There is no evidence in rebuttal from the side of appellant on this issue who has simply raised an adverse claim of ownership. No exception can, therefore, be taken to finding of Rent Controller on issue No.3.

19. No case for interference is made out. The appeal has got no merits and is accordingly dismissed with no costs. The appellant is, however, allowed two months time to vacate the demised premises. H.B.T./S‑545/K Appeal dismissed.