1. ' MRS. YASMIN ABBASEY, J. --Being aggrieved with the judgment, dated 30-11-2006 of learned IV Additional District Judge, Karachi (East) allowing the ej ectment application of landlord/ respondent No,1 these petitions have been filed by the tenant/petitioners.
2. ' As the factual and legal points in all the above petitions are same, therefore, they are taken up together for disposal.
3. ' The case of petitioners is that they were inducted in the premises as tenant by one Mst. Asghari Begum. She collected rent up to April, 1997. Thereafter, when Mst. Asghari Begum and her representative failed to collect rent, petitioners first tendered it through money order and thereafter started depositing rent in MRC Nos.292 and 293 of 1997 for Shop Nos.1 and 2 of Premises bearing No,2280 PIB Colony Karachi.
4. ' According to respondent No,1, property in question was gifted by Mst. Asghari Begum to her sons on 20-6-1990. Mutation too was effected in their name after due notice in the newspaper published on 25-6-1990. After mutation of property in the names of legal heirs of. Mst. Asghari Begum one of her son Mushtaq Ahmed expired on 10-1-1991. His share was relinquished by his legal heirs in favour of their brother Mukhtar Ahmed. After completing all formalities a sale agreement was entered into by them with Mustafa Kamal, the respondent No,1 On 30-4-1997. On 3-5-1997 respondent No,1 moved an application to Secretary P.I.B. Cooperative Housing Society Ltd., Karachi for transfer of Premises No,2280, P.I.B. Colony in his name on the basis of agreement of sale executed in between the sons of Mst. Asghari Begum, Mukhtar Ahmed and respondent No,
1. On 13-2-1997 Honourary Secretary of P.I.B. Cooperative Housing Society Ltd. Karachi intimated to Excise and Taxation Officer, Division-I, Civic Centre, Karachi about the transfer of premises from legal heirs of Mst. Asghari Begum and. Mukhtar Ahmed to Mustafa Kamal, respondent No, 1 .
5. ' According to respondent No,1, after the execution of agreement of sale on 30-4-1997 legal heirs of Mst. Asghari Begum and Mukhtar Ahmed had served a notice on 17-6-1997, intimating to petitioners about the transfer of property in the name of respondent No,1 and had advised them to contact with the new owner of the premises and to pay rent to him from March, 1997. It was replied on 23-6-1997 by the petitioners that as Mr. Aminuddin, the rent collector of Mst. Asghari Begum had not contacted him to receive the rent as usual in May, 1997, after non-acceptance of rent through money order they started depositing rent in Court in MRC No,292 and 293 of 1997,. On 12-7-1997 respondent No,1 issued a notice to the petitioners calling them as unauthorized occupants, however, by second notice dated 22-7-1997 he corrected himself and had accepted the petitioners as tenant and called upon them to .Vacate the premises in question on the ground of subletting the shop to one Abdul Razzaq. Finally ejectment application was filed on 30-9-1997 on the ground of default from May, 1997 and personal use. As question of relationship of landlord and tenant was raised by the petitioners, therefore, an issue to this effect was framed and finally by order dated 14- 9-2000 it was observed that relationship existed in between the parties, but the rent application was dismissed that the attorney, who had filed application on behalf of the owners was not authorized to file the same as the power of attorney was given to him subsequent to the filing of ejectment application. Anyhow the matter was contested at different stages and finally by impugned judgment dated 30-11-2006, petitioners were directed to hand over vacant possession of the premises in question within one year provided that they would pay rent to the respondent No,1 on or before 10th of each month.
6. ' It is contended by learned counsel for the petitioners that property was finally transferred in the name of respondent No,1 on 13-12-1997 and lease to this effect was issued on 27-12-2004, therefore before transfer of property in the name of respondent No,1 neither he was entitled to claim himself as the owner of the property in question nor had any authority to issue any notice calling upon the petitioners to pay rent to him or to vacate the premises as landlord. Section 18 of the Sindh Rented Premises Ordinance, 1979, provides that when the, ownership of the premises is transferred by sale, gift inheritance or by such other modes then the new owner shall send an intimation of such transfer in writing by registered post to the tenant. Thus just on the basis of execution of sale agreement on 30-4-1997, which was not finalized the respondent No,1 cannot claim himself as owner. With reference to the arguments advanced by learned counsel for the petitioners, I have gone through the sale agreement. In terms of the transaction, respondent No,1 had paid full purchase amount of the property in question and in return thereof possession of the premises was handed over to him by the Vendors. Para-4 of the sale agreement specifically says that the Vendee has now become the sole and absolute owner of the said property and shall all ownership rights, titles, privilege, benefits and interests thereof, as till this date enjoyed by the Vendors in respect of- the said property. Para-5 of this agreement further says that the said Vendee is now lawfully entitled to get the said property transferred in his name in the record of P.I.B. Cooperative Housing Society Ltd., at his own expenses and in this behalf the Vendors shall sign and pass on all required transfer papers/applications etc. In favour of the Vendee. Thus in terms of para-5 of the sale agreement, there appears no confusion to the fact that respondent No,1 did not become owner of the property on 30-4-1997, However, even, if it is taken that the property was not finally transferred in the name of respondent No, 1 on 13-12-1997 and the notice issued by respondent No,1 on 22-7-1997 was prior in time, therefore, ejectment application filed by him on 30-9-1997 was not maintainable then also the very ejectment application filed by respondent No,1 will be deemed to be a notice under section 18 of the Sindh Rented Premises Ordinance, 1979 and the default, if any, committed by the petitioners thereafter by continuing on to deposit rent in MRC Nos.292 and 293 of 1997 would be deemed to be a default in payment of rent deliberately just to put the landlord in unnecessary hazard. To support his argument, learned counsel for the respondent has referred case of Messrs Habib Bank Limited v. Sultan Ahmed and another (2001 SCM R 678), wherein it is observed that:- "It may be noted that if for sake of arguments it is assumed that appellant had no knowledge about the transfer of the property in the initial round of litigation but at least when eviction application given rise to instant appeal was filed and respondents have asserted themselves to be landlords of the premises the appellant must have gained knowledge and such application can be treated to be a notice binding the appellant to start making payment of rent and factum of institution of application for ejectment would be deemed to be substantial compliance of the provisions of section 18 of the Ordinance being a convincing source as it has been held in the cases of (i) Khuda Bakhsh v. Muhammad Yagoob and others (1981 SCM R 179), (ii) Syed Azhar Imam Rizvi v.
7. Mst. Salma Khatoon (1985 SCM R 24) and (iii) Major (Retd.) Muhammad Yousuf v. Mehraj-ud-Din and others (1986 SCM R 751). Thus we are of the opinion that the facts and circumstances of the case reveal that respondents on two occasions firstly when application under Order 1, Rules, 10, C.P.C., dated 18-9-1980 was filed and secondly when in the year 1988 the Respondent instituted instant ejectment application against appellant which has given rise to instant proceedings but despite of that till 1992 as per the statement made by the learned counsel for appellant at the bar rent was not deposited in favour of respondent, therefore, without any hesitation it is concluded that a wilful default was committed by appellant in making payment of rent."
8. ' In reply to it, learned counsel for the petitioners has tried to challenge the very gift deed executed on 20-6-1990 by referring a statement of Haji Muhammad Suleman, the Secretary of P.I.B.
9. Cooperative Housing Society Ltd., Karachi, wherein he has stated that:--- "It is correct that deponent bear the following spelling of sign (Mst. Ashrafi Begum). It may further looking 'h' then T. It may be corrected to suggest that the deponent bears sign of Ashrafi Begum.
10. The contents of Para. 3 of Exh.C-5 are same and correct. I cannot say that the thumb impression on Ex.C-5 is of Ashrafi Begum and not of Asghari Begum. It is correct in our file the original of gift deed of case property is missing but a photocopy is submitted."
11. ' But in this very statement Secretary of P.I.B. Cooperative Housing Society Ltd., Karachi at the very next moment had admitted that gift deed executed by Mst. Asghari Begum in favour of her legal heirs was mutated in the record.
12. ' Next learned counsel for petitioners referring an order passed in Civil Suit No,Nil of 1998 filed by the petitioners against respondent, wherein on conceding by petitioners' counsel to withdraw the suit, it was observed that the issue of relationship of landlord and tenant can be raised by them before the Rent Controller, who will decide the same, argued that as the very title of the Vendors of property of Sale Agreement dated 30-4-1997 was disputed, therefore, the respondent No,1 cannot claim himself as owner of the premises by virtue of that sale agreement till the title of the Vendors is clear 1994 SCM R 572 (Umar Hayat Khan v. Inayatullah Butt and others) has been relied on but in the referred case direction to first get title of landlord/owner established by a competent Court, before seeking ejectment were made in the circumstances when landlord was not able to establish his position without reasonable doubt, admittedly this is not the position in present case.
13. ' It is a settled principle of law that a tenant is not supposed to challenge the title of property until and unless a serious dispute as to the title of the property is brought on record. Reliance is placed on the case of Suleman and anothers v. M. A. Mallick (1988 SCM R 775).. Learned counsel for the petitioners has placed judgment of Hon'ble Supreme Court of Pakistan in Civil Petition No,208 of 2006, wherein KDA record in the name of petitioner of that case was not accepted as title documents in his favour and the order of Rent Controller and High Court observing that the petitioner had failed to establish that he is the owner/landlord of the premises in question was upheld, but such observation were in the circumstances when an issue of fraud and collusion of petitioner with the concerned officers of KDA was established for mutation of property in his name.
14. Thus it was observed that mutation does not confirm ownership of title on the person in whose name the property is mutated, whereas in the present case neither the question of fraud has been alleged against the respondent No,1 while mutating the property in their favour gifted by Mst.
15. Asghari Begum nor the application dated 12-7-1990 moved by Mst. Asghari Begum for mutation of property in the name of his sons was ever challenged by the petitioners.
16. ' In view of the foregoing reasons, I am of the opinion that the respondent No,1 has fully proved his case of being landlord/owner of disputed premises and default in payment of rent by the petitioners, impugned order requires no interference and is upheld. All, above petitions are hereby dismissed having no merits.