' SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal assails the judgment of Sindh High Court, dated 24-4-2006 in C.P. No,S-350 of 2004 allowing the same and ordering dismissal of ejectment application filed by the petitioner.
2. Petitioner filed ejectment application being Rent Case No,597 of 1995 under the Sindh Rented Premises Ordinance, 1979. (hereinafter referred to as the "Ordinance") for eviction of respondent No, I. In the ejectment application the petitioner averred that he was the owner/landlord of Flat No,5, Second Floor, Amna Manzil, Plot No,S.-1, Cutchi Memon Society Sirajuddullah Road, Karachi (hereinafter referred to as the "premises in question") by virtue of gift in his favour by his late father Haji Faqir Muhammad to the extent of 2/3rd and by sale from his brother Abdul Khaliq of the remaining 1/3rd share in the premises in question. Respondent No,1 denied the ownership and title of the petitioner in respect of the premises in question and stated that relationship of landlord and tenant did not exist between him and the petitioner. Respondent No,1 claimed that he was in occupation of the premises in question in his own rights as his wife Mst. Zulekha, sister of the petitioner and daughter of late Haji Faqir Muhammad inherited the same and she was the owners/title-holder of the premises in question.
3. The ejectment application was dismissed by the IIIrd Senior Civil Judge/Rent Controller, Karachi East. It will be advantageous to reproduce the relevant portion from the order of Rent Controller as under:-- . No documentary evidence of whatsoever nature has been produced by the applicant to establish the tenancy. He has based the version on the oral agreement but that too was not even stated in the ejectment application that the tenancy was created under the oral agreement. Under section 5 of S.R.P.O. The tenancy agreement ought to have been executed between the parties. The oral tenancy can be accepted in the circumstances which the relationship is not denied. In the present case the opponent has not only denied the relationship of landlord and tenant but also the title of the applicant over the demised premises. Under the definition of landlord he has to satisfy the Rent Controller about his title as held in a case reported in PLD 1985 SC page No, 1.
' As I have discussed above that the applicant has failed to establish his case to prove his title, therefore, the better course for him is to seek declaration regarding his title from the competent Court of law.
' Since the applicant has failed to prove the relationship of landlord and tenant and admittedly the opponent is in possession of the demised premises and he is claiming the possession through'-his wife who is admittedly the sister of the applicant, therefore, the alternate way for the applicant is to get his title declared and relief of possession from the Civil Court."
4. Feeling aggrieved and dissatisfied with the order of learned Rent Controller: the petitioner filed an appeal being F.R.A. No,354 of 2001 under section 2 of the Ordinance in the Court of District Judge, Karachi East which was allowed vide judgment slated 4-5-2004. The Appellate Court set aside the order of Rent Controller and directed the respondent No,1 to hand over vacant possession of premises in question to the petitioner within sixty (60) days of the judgment.
5. Respondent No,1 felt aggrieved and dissatisfied with the judgment of the appellate authority and assailed the same by way of Constitutional Petition being C.P. No,S-350 of 2004 which was disposed of by a learned Single Judge vide order, dated 24-2-2006 whereby she set aside the judgment of the appellate authority and restored the order of the Rent Controller. Learned Single Judge in allowing the constitutional petition observed that the petitioner failed to bring on record evidence to establish that he was owner/landlord of the premises in question and relationship of landlord and tenant existed between him and respondent No,1 which was a pre-condition for conferring jurisdiction on the Rent Controller. Learned Single Judge further observed that the material has been brought on record to establish that Mst. Zulekha wife of respondent No,"1, sister of the petitioner and daughter of the Haji Faqir Muhammad which specifically stated that she and her husband had been occupying/possessing the premises in question as it was distributed by her late father during his life time. From perusal of the judgment of the High Court it transpires that there was evidence that after her marriage Mst. Zulekha shifted to the house of her in-laws along with her husband but later on returned and occupied the premises in question not as a tenant but as owner thereof.
6. Attention of Mr. Rasheed A. Razvi was drawn to the passages reproduced from the judgment of the Rent Controller and the observations made by the learned Single- Judge of the High Court in her judgment and was asked to satisfy us what illegality, infirmity or irregularity was committed by the learned Rent Controller and the High Court in holding that the petitioner failed to establish his ownership/ landlordship in respect of the premises in question as a result of which existence of relationship of landlord and tenant between him and respondent No,1 would not arise. Mr. Rasheed A. Razvi submitted that above observations were based on misreading and misconstruing the evidence on record as well as in contradiction of established law/principle relating to execution and acceptance of oral gift. He further submitted that respondent. No,1 had no authority to challenge the validity of gift deed in view of pronouncements made by this Court that a tenant cannot deny the execution of gift deed in favour of landlord. Reliance was placed to the case Muhammad Ishaq v. Khurshid Alam PLD 1989 SC 353.
7. This contention of Mr. Rasheed A. Razvi does not find favour on more than one grounds; firstly, in the present case the question of execution of gift deed is not under consideration. According to the evidence brought on record late Haji Faqir Muhammad is said to have made an oral gift in favour of Haji Muhammad Anwar the petitioner and his brother Abdul Khaliq in respect of the premises in question in the ratio of 2/3rd and 1/3rd respectively. In corroboration thereof a declaration of gift was 'executed, the original of which was never produced during the entire proceedings from the stage of filing of rent case till the present petition for leave to appeal; secondly, respondent No,1 has not denied the execution of declaration of oral gift but has challenged the claim of the petitioner of, being ownertlandlord of the premises in question. In view of such challenge to title/ownership of the petitioner in respect of the premises in question it was incumbent for the petitioner to bring on record satisfactory and plausible evidence to establish his title/ownership over the premises in question so as to claim himself to be the landlord which he failed to do.
8. It may be pointed out that petitioner claimed to have purchased 1/3rd share of his brother in the premises on consideration of Rs,1,00,000, thus, becoming absolute owner of the premises but not an iota of evidence was brought on record by the petitioner to substantiate his claim. Mr. Rasheed Razvi submitted with vehemence that the property was mutated in the name of the petitioner in K.D.A. Record which was sufficient to establish the ownership/title of the petitioner in respect of the premises but the learned Rent Controller and the High Court completely ignored this material fact while deciding the question of relationship of landlord and tenant. This contention does not merit consideration,as respondent No,1 described the mutation to be the result
9. Of fraud and collusion of the petitioner and the concerned officer of K.D.A. Besides, mutation does not confer ownership or title on the person in whose name the property is mutated as held by this Court in the case of (i) Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376 and (ii) Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245. In the circumstances, the learned Rent Controller and the High Court rightly concluded that the petitioner failed to establish that he is the landlord/owner of the premises in question, the natural corollary of which would be that the relationship of landlord and tenant does not exist between the petitioner and respondent No, 1.
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9. For the foregoing facts, reasons and discussion this petition is found to be without any merit and is accordingly dismissed. Leave to appeal is refused.