2009 PLP 1949 (YLR)

MUNIB AHMAD KHAN, J.

This petition has been filed against the judgment dated 13-2-2004, passed by learned Vth Additional District Judge, Karachi Central in F.R.A. No.9 of 2003, whereby, the eviction order, passed by the learned Rent Controller dated 30-11-2002 has been set aside.

2. The story goes on between two brothers and after the death of elder brother Abdul Rasheed, his wife filed ejectment application against respondent No.1, the brother of the deceased, on the ground of default and subletting. The Rent Controller allowed the ejectment application but the Additional District Judge set aside that order on the ground that there was no tenancy between the parties.

3. Syed Zafar Ali Shah, learned counsel for the petitioner has pointed out cross-examination of the petitioner as well as of the respondent and has argued that there was a tenancy between the parties at the rate of Rs.200 per month and that default has been committed from March, 2000 while the respondent is in possession since long and that he has also sublet the premises to other persons.

4. Mr. M. Ayub Khan, learned counsel for the respondent No.1 submits that the respondent Abdul Bashir has also died and his legal heirs have been brought on record. He submits that both the brothers Abdul Bashir and Abdul Rashid were maintaining two shops and were doing joint business since partition while after the death of Abdul Rashid in 1971, the respondent No.1 started maintaining the children of his deceased brother but there was no rent or tenancy agreement. He acknowledges that although both the shops are in the name of Abdul Rashid but there is no tenancy and that respondent No.1 has paid more amount than rent amount could be, in the shape of maintenance towards the children.

5. After hearing the learned counsel, it appears that nothing has been brought on record to show that there was any tenancy except the version of the petitioner that there was rent of Rs.200 per month and no other terms and conditions have been pointed out nor there is any acknowledgement on the part of the respondent No.1 that he was tenant or has ever paid rent. The cross-examination pointed out by the learned counsel for the petitioner is to be taken as a whole and same establishes that the respondent No.1 was not a tenant but might have paid some amount towards the maintenance of the children of the deceased Abdul Rashid. The findings and reasons of the appellate Court on point No.3 is quite relevant and correct.

6. Keeping in view the material brought on record, I observe that the petitioner may have claim against the shops and the respondent No.1 but that cannot be agitated in the rent proceedings. Accordingly, the petition is dismissed. H.B.T./S-59/K Petition dismissed.