' The facts, evidence and the law are common in all the above-mentioned appeals and hence I propose to dispose them off through this judgment.
' The brief facts of the matter per the respondents are that their predecessorin-interest Mst. Surriya Sultana (mother) was the joint owner of House No,IV-F/12- 1, Nazimabad, Karachi, whereas the appellants are the tenants in respect of the ground floor/first floor at the monthly rent of Rs,2,500, Rs,2,200 and Rs,2,000 respectively. It is the respondent's case that initially the property in question was owned entirely by Mst. Surryia Sultana. However, on the basis of a forged gift deed, the deceased's parents viz. Muhammad Rafique and Mst. Ghulam Sakina became the owners of the property which was mutated in their names in the K.D.A. Record. Upon the demise of Muhammad Rafique his share of the property devolved upon his legal heirs viz. Mst. Ghulam Sakina, Muhammad Hussain, Abdul Latif, Tahir Sultan, Surryia Sultana and Samina Rafat. Accordingly, a notice was sent on behalf of Surryia Sultana to all the appellants/tenants through her counsel dated 26-4-1992 narrating the afore-going facts and also demanding that henceforth the rents be paid to Surryia Sultana being the representative of all the legal heirs. It was also stated that the legal notice should be treated as a notice under section 18 of the Sindh Rented Premises Ordinance. As the appellants failed to comply with the demand of Surryia Sultana she filed rent cases against the appellants being R.C. Nos.390, 391 and 392 of 1992 before the 1st S.C.J./R.C., Karachi Central, against the appellants praying for their eviction from the premises as they had failed to pay the monthly rent and also that the premises are required for the personal bona fide need of her son. The appellants filed written statements denying the relationship of landlord and tenant between them and Mst. Surryia Sultana as they were the tenants of Mst. Ghulam Sakina, the mother of the respondent, per the tenancy agreements between them dated 1-9-1988. According to the appellants they had been paying rent to said Mst. Ghulam Sakina. Accordingly there was no question of any default in payment of rent to the respondent or that she required the premises for the bona fide need of her son.
2. The respondent's husband Zafar Islam filed his affidavit-in-evidence in all three cases being one of the legal heirs as respondent had died in which the contents of the eviction application have been repeated. Similarly the appellants filed their affidavit-in-evidence in terms of their written statements. So also Mst. Ghulam Sakina filed her affidavit-in-evidence which supported the case of the appellants. After hearing learned counsel for both the parties the learned Rent Controller in terms of the impugned judgments all dated 21-9-1998 decided the issue of landlord and tenant in favour of the respondent and also found that not only had the appellants failed to pay the monthly rent but the respondent needed the demised premises for her own personal bona fide need. Hence the applications were allowed and the appellants directed to vacate the premises within a period of sixty days of the order.
3. In support of the appeal Mr. Khalid Daud Pota has submitted that the issue of landlord and tenant relationship was wrongly decided by the learned Rent Controller in favour of the respondent.
In this connection he has submitted that admittedly the property in question was owned by the parents of late Mst. Surryia Sultana and after the death of her father, her mother Mst. Ghulam Sakina learned Counsel has submitted that said Mst. Ghulam Sakina had let out the premises to the appellants vide lease agreement dated 1-9-1988. Hence for all purposes Mst. Ghulam Sakina was the landlady and only she could file the rent case against the appellants if any. In support of this submission he has relied upon the rent receipts issued by Mst. Ghulam Sakina. Per learned counsel Mst. Surryia Sultana thus never became owner of the premises and as she herself has stated in the legal notice that her parents fraudulently got the property mutated in their favour, she should have obtained a declaration from a Civil Court in respect of her claim. As regards the cross- examination of Ghulam Sakina had appeared in this Court and stated on oath that the property in question belonged to her and she had rented it out to the appellants and was accordingly receiving rents from them. On such statement the matter was remanded back to the learned trial Court for examination of Mst. Ghulam Sakina. However, under her cross-examination before the Rent Controller she had inadvertently stated that she ever appeared in Court or signed any affidavit etc. However, she has admitted that she used to receive rent and gave valid receipts of the same. He has relied upon Beejal Mal v. Punaji 1987 CLC 1134; Ghulam Ali v. Kabiruddin 1986 MLD 1583; Muhammad Yousuf v. Muhammad Ibrahim PLD 1991 Karachi 226 and General Services Corporation v. PNSC 1987 MLD 2149.
4. In view of the foregoing legal position, learned counsel has submitted that there could be no question of any default or need of the premises for bona fide use by Surryia Sultana hence he has prayed that the appeals be allowed and the impugned judgment be set aside.
5. On the other hand Mr. Sami Ahmad Tirmizy appearing on behalf of the respondent's legal heirs has submitted that per the definition of landlord in section 2(f) of Sindh Rented Premises Ordinance it means the owner of the premises or any other person authorized or entitled to receive rent.
Admittedly after the death of Surryia Sultana's father who was the joint owner of the property she being one of the legal heirs also became the joint owner of the property in question along with the other legal heirs in proportion to her share and hence was entitled to file the eviction application.
Secondly in this connection he has submitted that no legal heir of the late father of Surryia Sultana has disputed her title to the property as per her share hence the objection taken in the affidavit- inevidence of the appellants as to the issue of landlord and tenant relationship was correctly not accepted by the learned Rent Controller. For this he has relied upon Sarwar Abbas v. Hajra Bai 1983 CLC 337; Ghous Bakhsh v. M. Abdul Nadeem PLD 1976 Karachi 169; Habib Ahmad v. Liaquat Hussain PLD 1985 Karachi 741; Muhammad Aslam v. Abdul Majeed 1991 CLC 481 and Sardar Begum v. Hasina Jan 1983 CLC 3258. As to the merits of the case learned counsel has not pressed the issue of default. However, as regards the issue of personal bona fide need, as much has been stated by the witness of the respondent which has not been controverted by the appellant under cross- examination. Hence this issue stands proved in favour of the respondent. Learned counsel has therefore, prayed that the appeal be dismissed and the appellant be directed to vacate the premises forthwith.
6. I have heard both the learned counsel and my conclusions are as follows.
7. It would be seen that as far as the issue of the relationship of landlord and tenant is concerned, section 2(f) of the Sindh Rented Premises Ordinance defines the landlord to mean the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent.
Similarly the word tenant in section 2(j) of the Ordinance has been defined to mean any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:-- ' any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant.
8. From a combined reading of the above two definitions it is quite clear that where no rent agreement exists between the parties the law assumes that when a person who is not the owner of the premises occupies any portion thereof and has not set up a title which is adverse to the owner of the premises, then such a person by fiction of law becomes a tenant of the owner/ landlord. As far as the present case is concerned it would be seen that all along the appellants have stated that they are the tenants of the respondent's mother whereas the respondent's case was that she being one of the legal heirs of her deceased father who jointly owned the premises along with her mother was now one of the co-owners of the premises and hence entitled to file the ejectment application. As much as been stated in the legal notices served upon the appellants by the respondents as well as in the application filed before the learned Rent Controller for eviction and also the affidavit-in-evidence filed by her. In such affidavit mutation latter from K.D.A. In favour of the respondent's parents has also been exhibited as well as the legal notices. In cross-examination no question was asked of Zafar Islam the husband of the respondent to the contrary. In the circumstances I am of the opinion that it has been established that the premises were owned jointly by the respondent's parent viz. Ghulam Sakina and Muhammad Rafique and after the latter's death the respondent became one of the co-owner of the property and hence entitled to file the case before the learned Rent Controller' for eviction of the appellants. In this regard reference can be made to Abdul Ghani v. Abrar Hussain 1999 SCMR 348 wherein the Honourable Supreme Court held that co-owner can file ejectment proceeding against the tenant without impleading the other co-owners. The same principle of law was reiterated in Mst. Sardar Begum v. Hasina Jehan 1983 CLC 3258 and Syed Hussain Ali v. Shamsuddin 1998 MLD 394. As regards learned counsel for the appellant's submission that in fact Mst. Ghulam Sakina was the owner of the premises and had let out the same to the appellants after her husband's demise per the affidavit filed by her in this Court in F.R.A. No,448 of 1995, suffice it to say that she was never cross-examined in this Court on this issue. In fact the matter was remanded back to the learned Rent Controller for this purpose where she denied ever appearing before any Court and signing/putting her thumb-impression on any affidavit. Hence in my opinion the appellants have failed to establish that Mst. Ghulam Sakina was their landlady in terms of the tenancy agreement relied upon by them. In the circumstances as observed above, the appellants would be deemed to be the statutory tenants of the owners of the premises which were admittedly the parents of Surryia Sultana. Hence upon the death of her father she being one of the legal heirs became a co-owner of the premises and hence entitled to file the rent case before the Rent Controller.
9. As regards the merits of the case, learned counsel for the appellants has not argued the same at all and has confined himself to the issue of landlord and tenant relationship only. On the other hand learned counsel for the respondent has only pressed the ground of personal bona fide need of the respondent's son who is to be married which has been stated on oath by her husband. - In this connection learned counsel has submitted that no question in cross-examination has been asked of the witness in which event the need of the respondent stood proved. Consequently learned counsel has prayed that this issue be answered in favour of the respondent and appellants be directed to vacate the premises forthwith. Insofar as this issue is concerned it would be seen that per settled law all that the landlord is required to do is to step into the witness-box and states his personal bona fide need whereupon the burden shifts to the tenant to establish the contrary. However, it is equally well-settled that the need should be bona fide and eviction should not be sought for some other ulterior purpose or on a mere whim or fancy. In this respect reference can be made to F. K. Irani and Co. v. Begum Feroze 1996 SCMR 1178; Saira Bai v. Anis-ur-Rehman 1989 SCMR 1366 and S.M. Hooruddin v. Saga Printers 1998 SCMR 2119. In the present case the respondent's witness has stated as much in his affidavit-in-evidence filed before the learned Rent Controller viz. That the premises are needed for the bona fide use of her son who is to marry and no question has been asked at all under cross-examination. It would be seen that the premises in which the appellants are residing are half-portion of the ground floor and the entire portion of the first floor of the building.- These may appear too spacious for the occupation of a newly married couple. However, this is entirely the discretion of the landlord as to how much space would be required by him/her or her children for their residence. In this regards reference can be made to the case of F.K. Irani v. Mrs. Feroze (supra). Consequently one of the opinion that the respondent has been able to establish that indeed the premises are required for her own personal bona fide need i.e, that of her son. Hence these appeals are dismissed. The appellant shall hand over vacant possession of the premises to the respondent within two months of the date of this order.
' Appeals stand disposed of along with pending applications.