P L D 1980 Peshawar 163 (PLP)

The disputed property was originally owned by Arbab Nasrullah Khan and was rented with Amroz Khan tenant on payment of Rs. 40 as rent per month. Arbab Muhammad Ghalib Khan a son of the aforesaid Arbab Nasrullah Khan applied to the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, for the eviction of the tenant on the ground that he was the transferee of the premises from the owner and that the tenant in spits of notice having been issued in his name has failed to pay or tender rent to him since January, 1973. The eviction was also claimed on the ground that the premises were required to be built into shops and residential house.

2. The tenant in his written statement denied that Arbab Muhammad Ghalib Khan was the landlord. He contends that in fact it was Arbab Nasrullah Khan the father of Arbab Muhammad Ghalib Khan who is the landlord and from whom he had obtained the premises as tenant on payment of rent. He further denied that Arbab Muhammad Ghalib Khan served any notice of transfer on him. As regards rent, his contention is that he has been throughout paying rent to Arbab Nasrullah Khan. Regarding the claim that the premises was required to be rebuilt, the tenant denied the assertion.,

3. On the above pleadings the learned Rent Controller framed prelimi nary issues which are as under :- (1) "Whether the relation of landlord and tenant exists between the petitioner and the respondent." (2) Relief.

4. The learned Rent Controller came to the conclusion that Arbab Nasrullah Khan who was the original landlord and under whom the tenancy was held had transferred the premises to Arbab Muhammad Ghalib Khan who, in accordance with law, had served notice of transfer on the tenant: and thus relationship of landlord and tenant was created between the parties. The eviction of the tenant was ordered on the ground that he had denied the tenancy.

5. The learned Additional District Judge upheld the order of the learned Rent Controller for the same reason and the tenant has come up in second appeal challenging the orders of the two Tribunals below.

6. The record show, that Arbab Nasrullah Khan transferred the disputed premises in the name of his son Arhah Muhammad Ghalib Khan by registered deed dated 19-7-1968. Arbab Muhammad Ghalib Khan claim to have served notice on the tenant on 26-9-1977. The default allegedly had taken place since January 1975. Obviously the default prior to 26-9-1977 had no effect whatsoever because Arbab Muhammad Ghalib Khan tenant prior to 26-9-1977 gave no notice of transfer to the tenant. As far as the notice of 26-9-1977 is concerned, it appears that the same was cent by registered post. The endorsement of the postman o shows that the tenant refused to receive the registered notice. The tenant in his statement before the Rent Controller had specifically denied that any notice was delivered to him. The postman who allegedly took the notice to him had not been` produced. But Pir Bakhsh Inspector Post Office (P. W. 4) stated from record that a registered letter was addressed to the tenant and it was returned to the sender as it was not received by the addressee. The evidence of P. W. 4 is of no consequence inasmuch as it is secondary evidence, which could be relevant only if primary evidence was not available. The primary evidence was that of the postman who allegedly took the registered notice to the addressee. Failure to produce the postman in support of the claim of Arbab Muhammad Ghalib negatees his version that the tenant refused to take delivery of the registered notice. In the case of Nawab Din v. Rafique Ahmed (P L D 1979 Note 94 at p. 67) the Lahore High Court has held that where the addressee denied the service of statutory notice the requisite proof to establish the service is the production of the postman as witness. Ordinarily also since the refusal of the registered letter has not been established by any admissible evidence, it cannot be said that the tenant was aware of the transfer of the house in the name of Arbab Muhammad Ghalib Khan by his father.

7. It is also important to note that previously when the ownership of the premises was of Arbab Nasrullah Khan the rent used to be collected by one Karamatullah and he continued to collect it even after the transfer as milted by Arbab Muhammad Ghalib in his statement before the Rent admitted by Controller. This clearly shows that without service of proper notice of transfer the tenant could not have been aware o: the transfer of the property. It is on record and the fact stands proved that the tenant had been sending the rent by money orders to Arbab Nasrullah Khan. Had he been aware of the transfer there was nothing in his way to prevent him from sending the rent to Arbab Muhammad Ghalib Khan.

8. The above observations made by me are only tentative and it would be for the Rent Controller to determine if there was any wilful default on the part of the tenant in paying the rent. The finding of the Rent Controller and that of the Additional District Judge that the relationship of landlord and tenant existing between the parties is unassailable because the transferor admits it and the deed of transfer shows it. This finding is, therefore, upheld. However, in the circumstances stated above the two Tribunals below were not justified in ordering the eviction of the tenant straightaway. No doubt ordinarily a tenant who denies his status as tenant can be ejected straightaway in case the relationship is proved as held in the case of Nisar Ahmad v. Nazar Muhammad (P L D 1974 Lah. 489), but the circumstances of the present case are quite different. The tenant herein does not claim any adverse title. His main contention is that Arbab Nasrullah Khan was the landlord and that he was not aware that he had transferred the property to his son. The tenant had been making payment of rent and has also been sending the same by money order to Arbab Nasrullah Khan whom he considered to be landlord. This was, therefore, not a case of conscious denial of relationship of landlord and tenant. The question whether there had been it was wilful is still open for adjudicating and so is the default and whether it was wilful is still open for adjudicating and so is the assertion that the premises is required to be rebuilt by the transferee of the premises.

8. In view of the above fact, while upholding the finding that the relationship of landlord and tenant exists between the parties, I accept this appeal and set aside the order of the two Tribunals below and direct that the Rent Controller should proceed with the application afresh after making necessary order for deposit of unpaid and the future rent and then frame and decide issues whether the default was wilful or not and whether the premises was bona fide required by the new landlord for reconstruction. The cost shall follow the event. M. Y. M. Petition dismissed.