1993 PLP 1964 (MLD)

A room and a verandah of a building bearing Survey No.BI-lOS 32/RH, situated in Mohallah Water Works, Sialkot City was in occupation of the appellant as a rent-paying tenant of Mst. Hameeda Begum. The building, of which the rented premises were a part, belonged to her. By a deed No. 7598 registered on 13-12-1990, she sold the ownership rights in the whole building to Mirza Amad-ud-Din. After sale of the building, the new purchaser intimated the transfer in his favour to the occupant and also furnished him the particulars of sale-deed in his favour. Appellant also responded to the intimation. The building comprised of two residential rooms, kitchen and a bathroom in addition to the room and veranda in possession of the appellant as tenant, It was situated in a Mohallah of Sialkot City. On its sides, it was surrounded by residential houses. The rent payable per month was Rs.150. The appellant was an old tenant of about 20/23 years. The tenant carried business in the rented premises of preparing leather footballs. On 31-7-1991, respondent-owner brought a petition for ejectment of the appellant from the portion of building in his possession on account of his bona fide personal requirement for his self-occupation. Appellant resisted the application for his ejectment. It was averred that the building in his possession was of a non-residential character and could not .be vacated for accommodating the residential requirements of the respondent. It was further averred that the building was not required bona fide for self-residence and that the appellant had no knowledge of the sale of the building in favour of respondent. Pleadings gave rise to following issues for determination:

(1) Whether the petition is not maintainable because of preliminary objection No. 1? OPR. (2) Whether the rented property is required by the petitioner for his bona fide personal use in good faith? OPP. (3) Whether the property is non-residential; if so its effect? OPR. (4) Relief. Respondent appeared as his own witness and gave evidence of A.W.1. In addition, nine documents marked as ExhA.l to ExhA.9 were tendered in evidence. Appellant recorded his own statement and was supported by two witnesses, who tried to help him that the need for self-use was non-existent. Upon review of the oral as well as documentary evidence, the Rent Controller found that the building in question was purchased by the respondent from its previous owner; appellant occupied a portion of it as his tenant; rented premises and the building of which they formed an essential part were basically of residential character and that the rented premises were required bona fide, and, in good faith for personal residence of the respondent. Consequent upon the above conclusions, appellant was directed to vacate the rented premises within one month of the order, dated 22-12-1992. As observed above, the appeal was dismissed and appellant was allowed further four months to vacate and deliver vacant possession of the property to the respondent. In appeal, it was urged that tenancy relationship between the appellant and respondent did not exist; part of building in possession of the appellant was of a non-residential character and could not be vacated for the purposes of residence by the respondent and a need for self-use was not established. It was common ground that the building, of which the rented premises were a part, belonged to Mst. Hameeda Begum widow of Muhammad Din. It was not in dispute that appellant occupied the portion of the building in his possession as her rent paying tenant. She sold the building through a registered sale-deed on 13-12-1990. Respondent intimated the transfer of the building in his favour to the appellant in the notice served upon him. Form P.T.I. ExhA.9 supported the ownership of the building by the respondent. It was true that the registered sale-deed was not tendered in evidence by the respondent. It would have been better if the original or certified copy of it had been placed on file to support transfer of ownership rights. Nonetheless, oral evidence led in this behalf and the admission of the appellant in his cross-examination amply supported the proof of ownership of the building in question by the respondent. Further, an extract from Register P.T.I. ExhA.9 was a relevant piece of evidence for supporting ownership of the house by the respondent. Appellant did not give sufficient evidence to negate the ownership of the respondent. Upon a cumulative reading of the whole record and its tenor, there was no doubt left in the mind about the sale of the building by Mst. Hameeda Begum in favour of the respondent. Since appellant held the rented premises as tenant of Mst. Hameeda Begum, upon purchasing the building, right and interest in it devolved upon the respondent and the appellant came to hold the rented premises under the respondent with a corresponding liability to pay the monthly rent to him. In my opinion, the agreed finding of the lower Courts, holding that the building belonged to respondent and the appellant occupied a portion of it as his tenant was open to no serious exception. As for the argument that the building was of a non-residential character and could not be vacated for purposes of residence for the respondent, it had little substance in it. Basic character of the building was residential. It was recorded as such in Municipal records. Two of the rooms, a kitchen and a bathroom were a clear pointer towards its residential character. Merely that a room and a verandah was put in use by the previous owner for 8 carrying on business in it by a tenant would hardly deflect the original true character of the building. A small part of it was put to a non-residential use and a major portion of the building was still in use for residential purposes. The building was situated in a residential Mohallah. Around it were buildings still used for residential purposes. It was initially constructed as a residential house. A mere temporary use of part of building for non-residential purposes would not denude the original residential character of the building. There is a large body of case-law in support of what I am saying about the character of the building and I have also repeatedly expressed on it earlier. Section 11 of Rent Act, 1959 was not an insuperable bar in this behalf. The building or a portion of it now subject-matter of litigation in second appeal was not inherently unsuitable for purposes of residence nor was this the case of the appellant before me. Therefore, the argument touching on the non-residential character of the building was unsound and could not be accepted. Last comes the point, whether the respondent had successfully proved his bona fide need for self-residence. Lower Courts found that he did prove it and the evidence showed that their conclusion was right and correct in this behalf. Respondent purchased the house. He did not own any other residential house in the urban areas of Sialkot for housing him. He lived with his brother in a house owned by their father. Except for the disputed portion, the building purchased by him was shown to have been already occupied by him. In comparison to the requirements of the tenant, those of the owner, if proved bona fide and genuine, must receive preference. In this behalf, he has an edge over the tenant. There was sufficient evidence to firmly establish that the house was required by the respondent for his own occupation. There was no material whatsoever to dub his need mala fide. His was a straightforward evidence and inspired confidence for putting reliance upon it. Lower Courts believed him and gave him the relief of ejectment. Presence of sufficient safeguards in the Rent Laws reinforced their conclusion. If, upon vacation of the rented premises by the appellant, the respondent did not occupy them, the appellant could claim reinstatement in the vacated premises. Upon this view of the record, there was little scope for a different view in second appeal which appeared to be properly concluded by a concurrent finding of fact on bona fide personal requirement of the house by the respondent. In result, I would dismiss the appeal in limine. Records be returned. AA./T-49/L Appeal dismissed.