1989 PLP 3605 (MLD)

A. F. M. Mokarim for Appellant. Muhammad Akmal Wasim for Respondent. Date of hearing: 3rd April, 1988. The respondent had filed an application for ejectment under section 14 of Sind Rented Premises Ordinance stating that she has purchased the property in dispute under a registered sale dated 25-4-1982 from one Mst. Sajida Mehkri. It was further alleged that she is a widow and residing in a rented house therefore she requires the premises for her own personal use. It was stated that at the time of execution of the sale-deed in favour of the respondent the appellant was intimated of the sale by Mst. Sajida Mehkri, the previous owner. The previous owner had also informed the respondent that the appellant was allowed to remain in occupation of the house as tenant on his promise that he would vacate the house whenever it was desired by the respondent. It was further alleged that at the time of negotiation for purchase of the house the uncle of the respondent was taken by one Mohammad Malik the husband of the previous owner to the appellant and was informed about the sale of the house and also informed that premises was required by the respondent for her personal use and the appellant promised to vacate after a short time. In these circumstances the house was purchased by the respondent. After purchasing the house the respondent filed ejectment application under section 14 of Sind Rented Premises Ordinance. The appellant resisted the claim on the ground that he had purchased the house from Mst. Sajida Mehkri from whom the respondent had purchased the house. The ejectment application was rejected. However, 1st Rent Appeal filed by the respondent was allowed and direction was given to the Controller to rehear and give proper finding on question of relationship between the parties. The parties produced evidence and the learned Controller has granted the ejectment application. Mr. Mokarim the learned counsel for the appellant has contended that the property was purchased by the respondent on 24-5-1982 while he become widow on 30th September, 1980 therefore application under section 14 is not maintainable. In this regard reliance has been placed on 1983 CLC

317. The learned counsel has contended that the learned Controller has not given finding about the relationship of landlord and tenant. Mr. Muhammad Akmal Wasim the learned counsel has contended that entire evidence has been considered by the learned Controller and in view of the fact that the application has been granted he has accepted the respondent's claim to be the landlord. So far relationship of landlord and tenant is concerned the learned Controller has examined the evidence and has given his finding jointly on issues No.2, 3 and 4 which relate to the maintainability of the application. The learned Controller while discussing the evidence has observed that plea raised by the Opponent is frivolous and the denial of relationship by the appellant is dishonest and has been advanced merely to delay the proceedings. Therefore there is a finding in favour of the respondent. The learned counsel for the appellant has contended that Suit No 156/85 has been filed by the appellant against Mst. Sajida Mehkri and the respondent. I have examined the plaint in which it has been alleged that the appellant had conveyed the property to Mst. Sajida Mehkri by a registered sale decd on 31-3-1964 but she had agreed to re-convey the same property as it was benami transaction. It was further pleaded that Rupees One lac five thousand have been paid as sale consideration. Mst. Sajida Mehkri has denied this allegation although she has admitted her signature on the receipt. The fact remains that the property has been sold to the respondent by a registered sale- deed and one witness Amin Alvi has been examined by the learned Controller who has stated that the appellant had promised to vacate the premises and he had been informed about the sale executed in favour of the respondent. This is not denied by the appellant because in the plaint he has admitted that the notice about sale was given to the appellant who had replied on 19-10-1982. But the suit was filed in 1985 after the ejectment application had been filed by the respondent in the year 1983. From the assessment of evidence the learned Controller has come to the conclusion that although the suit has been filed by the appellant the relationship of landlord and tenant exists between the parties. In ejectment proceeding the Controller cannot decide question of title but for purposes of determining the question of relationship of landlord and tenant prima facie evidence of title and ownership can be considered. The finding of the learned Controller on this issue is proper and legal. However, this observation will not in any manner affect the proceeding in suit No. 156/85 which has been filed by the appellant on claiming specific performance of the agreement. As the ejectment application has been filed under section 14 of the Sind Rented Premises Ordinance in view of 1983 CLC 317 this application cannot be granted as the property was purchasd after the respondent became widow. The appeal is therefore allowed and the order of ejectment is set side. M.Y.H./G-118/K. Appeal accepted.