1989C L C 252 (PLP)

(1) Whether there exists relationship of landlord and. Tenants between the parties? (2) Whether the applicant requires the premises for reconstruction?. (3) Whether the opponents have defaulted in payment of rent? (4) What should the order be? He, however, decided issue No.l and held that there existed no relationship of landlord and tenants between the parties, and therefore, dismissed the rent cases. Against this judgment, the present appeals have been filed. In one of the appeals, i.e. FRA No.371/1986, an application has been moved, whereby, learned counsel for the appellant has sought to bring on record a photostat copy of the judgment in Suit No.4612/1981, which was filed by Hazratullah, one of the respondents,‑ against KMC and Fakir Mohammad, seeking the cancellation of the lease of tire disputed plot in favour of the appellant, which suit was dismissed on 1‑8‑1987, i.e. after the judgment impugned in the present appeals. The respondents, however, objected to the production of the above judgment, but in the interest of justice, I allowed the said application.

4. I have heard Mr. K. B. Bhutto, learned counsel for the appellant. He has argued that the judgment in above-said suit goes to establish that the appellant was the lessee of the plot, on which the said premises were constructed, and therefore, it should be presumed that he falls within the definition .of the landlord as provided in section 2(f) of Sind Rented Premises Ordinance, . 1979, being the owner. He has drawn my attention to the affidavit in evidence, filed by the appellant and the two documents placed by him on record. The lease‑deed shows that the disputed plot was leased to the appellant on 13‑9‑1980. He has also referred to the letter, dated 4‑5‑1981, issued by Karachi Building Control Authority showing that his plan for reconstruction on the above-said plot had been approved. From the above, he has argued that since he is the owner, therefore, he is entitled to receive rent and that the findings of the Rent Controller on this issue are erroneous. He has further argued that the Bent Controller has no jurisdiction to go behind the said lease‑deed and hold otherwise. In support of his contention, he has relied on the case of Bashir Ahmad v. Abdul Hamid and another 1983 S C M R 302 and the case of Province of Punjab v. Mufti About Ghani P L D 1985 SC

1. With all respects to the above-cited authorities in my humble opinion the appellant has proved to crave become the lessee of the said plot from the said date 13‑9‑1980, but respectfully I am of the view that the main question involved in the present case is not the ownership of the appellant but the question to be resolv6d is whether there existed the relationship of landlord and tenants between the parties. The record of the case snows that except for the lease‑deed and the permission for reconstruction, which pertain to. the year 1980‑81 respectively, no other document or evidence has been produced by the appellant to prove the existence of the relationship. The appellant has also not produced any evidence to prove that he had constructed the premises on the said plot, nor he has filed any rent receipt. Admittedly, there was no agreement of tenancy. The appellant has also not examined any witness of the locality to prove his case that he had inducted the respondents in the premises as his tenants or that they have been paying the rent to him. In such cases, where the relationship of the landlord and tenant is denied and there is no evidence in the form of agreement or in any other document to show the relationship, the burden lies on the landlord to prove that such relationship did exist. In the present circumstances, the appellant has failed to prove the same. A reference may be had to the cross examination of the appellant. He was cross‑examined in the year 1981, wherein he states that the opponents are in occupation since 25 years, which in other words would mean that they are in occupation since the year 1956. The appellant has also in his cross‑examination said that previously the rent was Rs.20 per month, which was enhanced to Rs.50 per month. As against this, the lease‑deed produced by him shows that he became the lessee and acquired the rights in the said plot only on 13‑9‑1980, Whereas he had to show his ownership of premises at least since 1956 when the present respondents came into occupation.

5. Mr. Iqbal Quadri, learned counsel for the respondents, has argued that the relationship of landlord and tenants cannot be created ipso facto on the appellant having acquired any interest into the plot. He has further argued that the lease‑deed produced by the appellant goes to show that he only acquired lease interest in the land but not the constructed premises. He has relied on the case of Beejal Mal v. Punaji 1987 C L C 1134, wherein, Mr. Ahmed Ali U. ,Qureshi, J., as he then was, has held as under:‑ However, mere fact that the respondent is owner/landlord of the demised premises would not ipso facto create relationship of landlord and tenant between the parties. Such relationship can be created either by statute or by contract whether oral or in writing. Next I proceed to examine whether there existed any contractual or oral relationship of landlord and tenant between the parties. Admittedly there is no written agreement of tenancy or no documentary evidence to show payment of rent by the appellants. According to respondent he inducted the appellants as tenants by oral agreement and that he used to issue rent receipts on blank paper of which no counterfoil was kept. He also admits, that the appellants did not pay him rent in presence of any body. In such case the burden of proof lies upon the landlord to prove the existence of relationship of landlord and tenant between the parties. The learned counsel for the respondents has also referred to the case of Mst. Anis Bano and 3 others v. Mst. Rabia 1987 CLC 775, wherein, Mr. Ally Madad Shah, J., as he then was, has held as under: It is apparent from the pleadings of the parties and the evidence adduced by them that there is‑serious dispute between them as regards title over the property: There are certain documents on the record relating to the respondent s title over the house. On the other hand the possession of the house is admittedly with the appellants. There is no documentary evidence that Wali Ahmed had come in occupation of the house as the tenant. There is even no oral evidence except the word of the respondent Mst. Rabia that Wali Ahmed had come in occupation of house as the tenant by agreement. Any amount of evidence to the title does not necessarily lead to irresistible conclusion that there was relationship of landlord and tenant between the person holding the title and the person in occupation of the demised premises, particularly in the circumstances where the relationship between the parties is so close as in the instant case. Since the appellants denied the relationship of tenant and landlord, the respondent had to establish that relationship, if any, by positive evidence. There is no evidence, except the word of the respondent, that the appellants or Wali Ahmad had ever paid or promised to pay any rent to the respondent. Obviously, the evidence on record does not establish that there was relationship of tenant and landlord between the parties. The question of title could not have been determined by the Controller and it could be agitated before any other forum. Since the evidence on the record falls short of proving the relationship of tenant and landlord between the parties, the issues of default in payment of rent and subletting of the premises do not hold ground. The third case relied upon by Mr. Iqbal Quadri, learned counsel for the respondents, is reported in 1987 C L C 148 Messrs Mehran Shoes v. Muhammad Ismail and,3 others in which Mr. Ibadat Yar Khan, J., as he then was, has held as under:‑

4. Tenancy is a special relationship between the owner of the property and a tenant. This relationship between tenant and landlord is created either by agreement between the parties or by force of any statute. Surely it is not a case falling in the latter category and it is to be seen whether any agreement between the parties creating tenancy is proved in this case? In my opinion no such agreement has been proved and it still remains debatable whether the version of the landlord is correct or the version of the tenant is correct? This being a crucial and complicated question calling for a full investigation before a regular forum, perhaps in the form of a suit for specific performance or any other regular suit, the Rent Controller ought to have withheld his hands and should have directed the parties to agitate the dispute before a regular Court. The mere word of the landlord is too flimsy and unreliable a ground to raise a presumption in favour of the landlord and brush aside the version of the tenant denying the tenancy.

6. I am fully in agreement with the principles laid down in the above three decisions of this Court and hold that in such cases the mere fact that the appellant s claim to have acquired the interest in the disputed property would not ipso facto create the relationship of the landlord and tenant as between him and the persons in occupation of the same but such relationship is created only by some agreement., written or oral or by statute which fact in the instant case has not been proved by the appellant.

7. I, therefore, find no force in the present appeals and the same are dismissed with no order as to costs. H. B. T./F‑84/K. Appeals dismissed.