' ALI SAIN DINO METLO, J.---Petitioner Kazim Imam Jan has challenged order, dated 19-5-2006 of the Additional District Judge-I, Karachi Central, dismissing his appeal, bearing No,FRA No,158 of 2005, which he had filed against order, dated 1-9-2006 of the Rent Controller-IV Karachi Central, dismissing his case bearing R.C. No,Nil of 2005 for ejectment of the respondents. The petition was dismissed by a short order on 16-11-2006 and these are the reasons.
2. Briefly, the facts, as can be gathered from the record, are thatby a written agreement executed on 24-2-1971 the petitioner had agreed to sell his house, bearing No,C-79, Block No,4, KDA Scheme No,16, Federal 'B' Area, Karachi, admeasuring 600 square yards, to respondent No,2 Muhammad Javed son Abdul Razzak (wrongly mentioned in the memo of petition as son of Gul Muhammad) and handed over its possession to him. For the purpose of completing the transaction and executing the sale-deed he simultaneously executed a general power of attorney in favor of his (Muhammad Javed's) uncle Noor Muhammad. The latter executed the registered sale-deed in his favor on 22-11-1972 and he (Muhammad Javed) orally gifted the property to his uncle Gul Muhammad father of respondent No,1 on the very next day i,e, on 23-11-1972. However, registered deed of declaration of gift was executed by him on 15-11-1980 and the property was mutated in his (Gul Muhammad's) name in the record of the Karachi Development Authority.
3. The petitioner, while admitting the agreement, receipt of major part of consideration, delivery of possession, and execution of the written agreement as well as the general power of- attorney, did not acknowledge the transfer on the ground that part of consideration still remained unpaid.
4. He, through his attorney Ghulam Mohiuddin Qureshi, filed rent case bearing No,836 of 1991 against respondent No,2 and Gul Muhammad father ofrespondent No,1 for their ejectment on the grounds that the agreement to sell under which possession of the property was handed over to the respondent No,2 had ceased to be valid and that they were occupying 'it without any title or right.
During pendency of the said case, he, through another attorney Mst. Rukhsana Tabassum, filed "anotherrent case bearing No,192 of 1992 against one Rais Ahmed for his ejectment from the same premises which was allowed ex parte.
5. Gul Muhammad (respondent No, father) on coming to knowabout the ex parte ejectment order, approached the Rent Controller for setting aside the order on the ground that it had been obtained by fraud and mis-representation. According to him, he was the lawful owner in possession of the premises and no person by name Rais Ahmed had ever been in its occupation or possession. The Rent Controller dismissed the application on 31-7-1973 only on the grounds that it had been filed after expiry of 'appeal period' and that he had no jurisdiction to go into the complicated questions of ownership. Review application was dismissed on 18-1-1994.
6. On an appeal of Gul Muhammad, bearing FRA No,62 of 1994, the High Court, by its order, dated 11- 1-1995, remanded the 'matter tothe Rent Controller to decide it afresh after allowing the parties to produce evidence. The Rent Controller, after recording evidence, again dismissed the application and ejected the respondent No, l's father inspite of the fact that the petitioner denied to have authorized Mst. Rukhsana Tabassum to file the ejectment case and the so-called tenant Rais Ahmed also denied to have ever remain in possession of the premises. However, on appeal bearing No,143 of 1998, this Court, by its judgment, dated, 3-5-2000, set aside the ejectment order and directed to restore possession of the premises to the legal heirs of Gul Muhammad as by that time the latter had died. Petitioner's application for leave to appeal, bearing No,CPLA 287-K of 2000, was dismissed by the Hon'ble Supreme Court on 18-7-2000 and possession of the premises was ordered to be restored to Gul Muhammad's legal heirs within four months,, and in this way possession was restored to them.
7. After about five years of the order of the Hon'ble Supreme Court, the petitioner filed the above mentioned rent case for respondents' ejectment which was dismissed and the appeal tiled by him Was also dismissed and the orders have been challenged in this petition.
8. The Hon'ble Supreme Court, while dismissing the petitioner's application for leave to appeal, observed:-- "It appears to be the case of serious dispute about title of the premises. In a case like this, issue of title cannot be decided by Rent Controller and the parties may approach civil Court."
9. Learned counsel for the petitioner tried fully to exploit observation of this Court to the effect that it will be open to the petitioner or any person claiming to be landlord of the property to seek ejectment of the appellant according to law. With utmost regards, it may be mentioned that neither by such observation the petitioner was held to be the landlord nor after the above observation of the Hon'ble Supreme Court, under whoSe orders possession was restored to the legal heirs of deceased Gul Muhammad (including the respondent No,1), he can be treated as such. Hence, there is no scope for such an argument or justification for again tiling the ejectment case before the Rent Controller.
10. There is nothing to show that the respondents or for that matter deceased Gul Muhammad were inducted as tenants in the premises at any point of time. Even according to the petitioner, possession of the property was handed over to the respondent No,2 under the agreement to sell.
His case is that, due to respondent No,2's failure to pay balanceconsideration, the agreement had ceased to be valid and the execution of registered sale-deed by his attorney was of no legal effect.
First, as observed by the Hon'ble Supreme Court, such questions cannot be decided by the Rent Controller, and secondly, even if it be assumed, for the sake of argument and not as a. Fact, that the execution of registered sale-deed in favor of. Respondent No, 2 and the subsequent gift made by him were not valid transactions and the petitioner was still the owner of the property, the respondents cannot be treated as. Tenants. Section 2(j) of the Sindh Rented Premises Ordinance, 1979 defines tenant as under-- "'tenant' means 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:--
(i) any person who continues to be in possession or occupation ofthe 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."
11. Thus, there can be two kinds of tenants i,e, contractual and statutory. A contractual tenant is one who undertakes to pay rent and is bound as such to pay during the contractual period of tenancy.
A statutory tenant is one who is bound to pay rent by operation of law such as a contractual tenant continuing possession or occupation of the premises on expiry of agreed period of tenancy or heirs of a tenant in possession or occupation of the premises after death of the tenant. The respondents do not fall in any of the two categories.
12. A person in possession or occupation of another person's property may not necessarily be his tenant and an owner out of possession may not necessarily be landlord of possessor or occupier of his property. A licensee, a mortgagee or a trespasser cannot be treated as tenants.
13. 'In view of the above mentioned facts, circumstances and reasons, it cannot be said that the respondents -are tenants, of the petitioner and therefore, no exception can be taken to the impugned orders of the Rent Controller and the Appellate Authority dismissing his application and appeal for their ejectment.. Accordingly, the petition, being meritless, is dismissed summarily.