1989 PLP 1467 (CLC)

Date of hearing: 6th April, 1989. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is filed against the order dated 30‑4‑1988, passed by Mr. Zahid Hamid, 1st Senior Civil Judge and Rent Controller (West) Karachi, by which he directed the ejectment of appellant from the disputed premises within a period of 150 days.

2. The respondent acquired right of ownership in respect of Flat NoA‑14, Al‑Siraj Square, Block No.14, Federal B Area, Karachi, in occupation of appellant on 4‑6‑1986, by way of registered gift‑deed from its owner Muhammad Akhtarullah Khan. The appellant was approached by the respondent and her brothers to vacate the premises, but without any result. He was, therefore, served with the requisite notice under section 18 of the Sind Rented Premises Ordinance, 1979. The appellant not only failed to tender the rent due, but also disputed the title of the respondent in respect of the said premises. On 1‑7‑1987, the respondent filed an application for ejectment against the appellant on the grounds of default in payment of rent and personal requirement.

3. The appellant has disputed the relationship of landlady and tenant between the parties. He claimed one Abdul Khalique as his landlord who had inducted him as tenant. The title of respondent in respect of this flat was also questioned by him.

4. The parties went to trial on the following issues:‑ (1) Whether there exists relationship of landlord and tenant between the parties? (2) What is the monthly rent? (3) Whether the applicant requires flat for her personal bona fide use? (4) Whether the opponent failed to pay rent as alleged? (5) What should be the order?

5. The respondent tendered evidence through her brother Syed Azhar Hussain (P.W.1), while the appellant filed his own affidavit‑in‑evidence. He also examined Dilshad (D.W.2), and Syed lqbal Hasan (D.W.3).

6. On the basis of evidence, both oral as well as documentary, the learned Rent Controller decided all the material issues against the appellant, and consequently directed his ejectment from the disputed flat.

7. The respondent has claimed ownership of this flat through a gift deed (ExhA/2). The indenture of lease between Karachi Development Authority and Muhammad Akhtarullah Khan, the donor is also on record (ExhA/1). On the strength of this deed (Exh.A/2), the name of the respondent was mutated in the record of Karachi Development Authority (ExhA/3).

8. There are three requisites of a valid gift under Muslim Law, viz:. (i) That there must he clear and unambiguous intention of the donor to make gift. (ii) That there must be acceptance of gift, express or implied, on the part of the donee. (iii) That there must be delivery of possession, either actual or constructive of the property, which is the subject‑matter of gift.

9. The deed of declaration and confirmation which is on record (Exh.A/2), satisfies the above requisites of a valid gift, which was oral but reduced into writing to complete the legal formalities. If .the property is in possession of a tenant, the true owner can validly make a gift of that property, provided the donor does all that he can do, to complete the gift and to enable the donee to acquire possession of the subject‑matter of gift. The delivery of possession in such a situation need not be physical. It could be constructive or symbolic. So the mutation of the donee's name in the record of Karachi Development Authority after due publication in newspaper is sufficient to constitute delivery of possession in case of a gift.

10. Even otherwise factum of delivery of possession cannot be raised by the third party completely stranger to the gift. This aspect was examined thoroughly by Saleem Akhtar, J, in case of Shaharyar Ali Pataudi and 3 others v. M/s. Deora Furnishers, reported in PLD 1985 Karachi 47.

11. Admittedly the appellant was in occupation of the disputed flat prior to its transfer to respondent by way of gift. According to him he was inducted as tenant by one Abdul Khalique. The status of this Abdul Khalique is not clear. It is not known whether he was collecting rent in his own account or on behalf of Muhammad Akhtarullah Khan, the actual owner of the flat. The appellant has not produced any rent receipt or the lease agreement to find out the correct position. The bill of K.E.S.C. (ExhA/2) in no way indicates that Abdul Khalique was the owner or landlord of this flat which actually belonged to Muhammad Akhtarullah Khan. The meter for electricity can be installed even in the name of a tenant or a trespasser. The fact, however, remains that this flat originally belonged to Muhammad Akhtarullah Khan vide (ExhA/1), who had gifted it to respondent. The respondent had served the appellant with the requisite notice (Exh.0/2), and consequently by operation of law he became the tenant of the respondent on the same terms and conditions, on which he held the premises at the time of service of notice. The fact that he was paying rent to an unconcerned) person will not relieve him from the liability as to payment of rent. The benefits and protections of the beneficial legislation in the form of Sind Rented Premises Ordinance, 1979, can be extended only to the person who discharges his own obligation as a tenant, namely, by payment of rent to his landlady. The respondent, who was not obliged to send copy of gift deed to the appellant along with the notice (Exh.0/2), did so to avoid any possible dispute. The appellant, however, disputed the title, although he had reason to believe that she had a valid title which is clear from the following extract of his cross examination:‑ "It is correct that after receipt of this notice in April, 1987 no one has come forward to claim title, right or his interest in the case premises. It is correct that since then rent collector of Abdul Khalique stopped/refused to receive the rent from me, therefore, I started depositing rent vide MRC."

12. The case of Muhammad Anwar v. Mst. Nafeesa Begum, reported in PLD 1981 Karachi 85, is relevant in a situation like this. The appellant who has all along disputed the relationship of landlady and tenant is thus an undesirable tenant. The denial of the title of the landlady by the tenant is by itself sufficient tot order his eviction straightaway.

13. For the foregoing reasons I see no merit in this appeal which is accordingly dismissed with costs. The appellant is, however, allowed two months' time to vacate the demised premises. H.B.T./K‑139/K Appeal dismissed.