P L D 1961 (W (PLP)

ABDUL HAMID, J.‑--This is defendant's 1st Appeal against the judgment of the 1st Additional District Judge, Karachi dated 10th April, 1958, by which he decreed the plaintiffs suit against him. The facts of this case briefly are that the plaintiffs Mst. Muhammad Nisa and Muhammad Farooq are wife and husband. Ahmad Din is the brother of Muhammad Nisa and therefore brother‑in‑law of Muhammad Farooq. It is beyond dispute that Muhammad Nisa, her husband Muhammad Farooq and her brother Ahmad Din, and some other relatives, migrated from Delhi to Lahore. After sometime Muhammad Nisa and Muhammad Farooq were left in Lahore and Ahmad Din came to Karachi, and obtained possession of Flat No. 6 in Kulsoom Manzil Burns Road, Karachi. The flat consists of two rooms, a bath room and a kitchen. On 17th March 1948 he wrote a letter to Farooq the relevant portion of which reads as follows:‑ "I have entered into possession of a house and the house is sufficiently big. The rent is Rs.

26. If you like and if you are unemployed, you may come at once and obtain allotment, 'I think it is good for the residence of both of us. It has two rooms. If you are employed and have no intention to come, it is well and good." It appears that sometime after the receipt of this letter Muhammad Farooq and Muhammad Nisa came to Karachi and occupied one of the two rooms of the flat. Ahmad Din's allegations are that they were taken in as licensees and stayed with him without pay ment of rent. The allegations of Muhammad Nisa and her husband Farooq are that they were taken in as sub‑tenants or co‑tenants and they used to pay half of the rent as their share. Sometime in 1955 difference arose between Ahmad Din on one side and Muhammad Nisa and her husband on the other. Ahmad Din wanted to evict Muhammad Nisa and Muhammad Farooq from the building because he had married and wanted the second room for himself. His allegations are that access to the second room is through the room which was in his occupation. Muhammad Nisa's contention was that the dispute arose between her and her brother because she had advanced Rs. 2,500 to him for business and profits had to be shared by both of them. Ahmad Din repudiated the loan and refused to return the loan and the profits. A criminal complaint under section 448 was instituted by Ahmad Din against Muhammad Farooq for evicting him from the room in his occupation but that complaint was dismissed on 23rd October 1955. On 14‑1‑56 an application (No. 63/56) under section 18 of the Small Causes Court Act was presented to the Judge of Small Causes Court by Ahmad Din for the ejectment of Muhammad Farooq on the allegations that he was only a licencee and the licence had been terminated by serving a notice on him on 9‑1‑

56. That application was decided on 26‑10‑56 and order of ejectment was made against Muhammad Farooq who was held to be only a licencee under Ahmad Din. Thereafter Muhammad Nisa and Ahmad Din instituted a suit in the Court of 1st Additional District Judge in which order made by the Judge of Small Causes Court on 26‑10‑56 was challenged, In this suit the allegations in the plaint were that the two plaintiffs, Muhammad Nisa and her husband Muhammad Farooq, were either co‑tenants in the house or sub‑tenants in it because they paid their half share of the rent to Ahmad Din and Ahmad Din paid the entire rent to the landlord, Ahmad Din's defence was that the plaintiffs' were only licensees and the entire rent used to be paid by him to the landlord. Sub‑tenancy or co‑tenancy in favour of the plaintiffs was denied. Evidence was led by both the parties and the learned District Judge, relying mostly on the oral evidence adduced by the plaintiffs held them to be a tenant under the defendant Ahmad Din, and quashed the decree passed in defen dant's favour by the Judge of Small Causes Court on 26‑10‑

56. This appeal has been directed against the judgment of the District Judge. We have gone into 'the evidence in this case very carefully. It is almost an admitted fact that rent in respect of the entire flat used to be paid by Ahmad Din defendant to the landlord. Receipts stand in Ahmad Din's name. This fact has been admitted by the plaintiffs, as well as by Ghulam Hussain who was one of the landlords of this property from ‑ 1948 to 1951. But their contention was that they used to pay their share of the rent to Ahmad Din and in support of this fact they produced oral evidence. Ghulam Hussain who was the owner of the building of which flat No. 6 is a part stated that on few occasions Muhammad Farooq paid his share of the rent to Ahmad Din in his presence. Muhammad Rafi P. W. 3, who is also a tenant in the same building, stated that he too had seen Muhammad Farooq making contribution of his share of the rent to Ahmad Din. Muhammad Nisa one of the plaintiffs said that she was the sister of Ahmad Din and was a co‑tenant with him. Muhammad Farooq refused to enter into the witness box and was brought in as defendant's witness. He deposed to the dispute over this loan between the sister and the brother, and stated that he and his wife were staying in the flat as co‑tenants with Ahmad Din on payment of their share of rent to him. The learned District Judge appears to have been influenced, in his decision, by the letter of 17th March 1948 by which Ahmad Din invited his Brother‑in‑law to take up residence with him in the flat and also by the oral evidence of Ghulam Hussain and Muhammad Rafi. It was on the weight of this evidence that decree was recorded in plaintiff's favour. The evidence led by the defendant was found to be of no value. Ahmad Din besides himself brought Nasib Khan D. W. 1 and Hafizur Rehman and Islam‑ud‑Din D. Ws. 2 and 3 into the witness box. Nasib Khan is a Chowkidar of the building and used to collect rent on behalf of the landlord. His evidence was that rent in respect of the entire flat used to be paid by Ahmad Din only. He also stated that other relatives of Ahmad Din used to come and stay, with him in the flat as guests. Out of the other two witnesses Islamuddin and Hafizur Rehman, Islamuddin D. W. is the real brother of Muhammad Farooq plaintiff and a cousin of Ahmad Din. Hafizur Rehman is a nephew of Muhammad Farooq. They stated that they also, for some period, stayed in this flat as Ahmad Din's guests without payment of any rent. Islamuddin said that he stayed with him for about 11 years and Hafizur Rehman stated that his stay was for 11 years. They also stated that during the periods of their stay no rent was ever paid by Muhammad Farooq to Ahmad Din. We have given this case our careful consideration and are of opinion that no weight should have been attached in a case of this character to oral evidence. The plaintiffs were seeking for themselves the status f of a tenant under Ahmad Din defendant. Tenancy is a status which carries certain advantages. That status must be secured by evidence of a very high order. Defendant Ahmad Din had an evidence of that character in his possession in the rent receipt which he held from the landlord. There is a writing in his favour in support of his tenancy. Muhammad Nisa and Muhammad Farooq, if they desired the status of tenant against Ahmad Din should have secured a writing from Ahmad Din. The letter dated 17th March 1948, which they have produced, creates no such status in their favour. It contained the invitation of occupying the building only, without showing that the occupation would be in the capacity of a tenant or a licencee. It is true that' they are closely related to each other but when relations fall out and one claims a right against the other he has to depend on evidence of very strong character for his right. If oral evidence is totally ignored, as it deserves to be ignored in cases of this character, the writing is in favour of the defendant in the shape of receipt from the landlord. Sub‑tenancy or co‑tenancy in favour of the plaintiffs has not been established by any writing or other reliable evidence. The decision of the learned trial Judge, in our opinion, was not warranted by the evidence on record. We, therefore, accept this appeal and set aside his decision. Respondents will bear appellant's costs. K. B. A. Appeal accepted.