' AKHTAR ZAMAN MALGHANI, J.---By this common judgment, I intend to dispose of F.A.Os. Nos. 20, 21, 22, 23, 24, 25, and 26 of 2006 as identical question of facts and law are involved in all the appeals and have -arisen from a consolidated judgment passed by Rent Controller/Civil Judge-V Quetta on 29-4-2006, whereby, eviction applications filed by the appellant against the respondents were dismissed.
' Briefly stated, facts of the case are that the appellant instituted separate applications against the respondents for their eviction before the Rent Controller, Quetta claiming to be owner/landlord of the shops in respective possession of respondents, on the grounds of personal use and occupation and default, which applications were contested by the respondents.
' Out of pleadings of the parties, following issues were framed:--
(1) Whether there exists no relationship of landlord and tenant between the parties?
(2) Whether the applicant is entitled for relief claimed for?
(3) Relief?
' In all eviction applications the appellant produced four witnesses and also got recorded his own statement, whereas; respondents produced twelve witnesses and also got recorded their separate statements. Evidence produced by the parties in all applications was common except statements of respondents.
3. The learned Rent Controller dismissed all the eviction A applications by a consolidated judgment dated 29-4-2006.
4. I have heard the learned counsel for the appellant as well as learned counsel for the respondents. Learned counsel for the appellant vehemently contended that the respondents have not denied to have been inducted into the shops in dispute by late Dr. Muhammad Jaffar, who had transferred the property to the appellant, as such; the respondents became tenants of the appellant by operation of law and despite issuance of notice under section 13-A of the Urban Rent Restriction Ordinance, 1959 failed to tender or pay rent, instead they maliciously denied relationship of landlord and tenant disputing title of Dr. Muhammad Jaffar, which they could not have legally disputed as they were inducted in the premises in dispute by him and undisputedly they were still depositing rent in his favour. He further contended that the respondents had no locus standi to challenge ownership or validity of mutation entries, whereby; ownership was transferred in the name of appellant nor on the said basis rent controller was justified to have decided the issue of landlord and tenant between the parties in negative.
5. On the other hand, learned counsel for the respondents vehemently contended that title of the appellant was disputed as same has been challenged by one Muhammad Jahangir Sadiq by filing a separate suit, as such; the appellant was required to have established his title before the Civil Court prior to instituting eviction applications against the respondents and the learned trial Court rightly dismissed the eviction applications as the respondents never attorned to the appellant their landlord nor paid any rent to him, as such; there existed no relationship of landlord and tenant between the parties and rightly held so by the learned trial Court. In support of his contentions the learned counsel referred to the judgments reported in 1991 SCMR 1376, 1994 SCMR 572, 1991 SCMR 215, 1991 CLC 1688, 2002 YLR 2772, 2002 CLC 143.
6. I have carefully considered the contentions put forth by the parties' learned counsel. The learned Rent Controller in the light of pleadings of the parties framed an issue with regard to existence of relationship of landlord and tenant between the parties and dismissed applications after coming to the conclusion that there existed no relationship of landlord and tenant between the parties. It may be seen that the appellant claimed to have acquired ownership of the property in dispute from Dr. Muhammad Jaffar, in this regard he placed on record extract of Jamabandi Ex.A/1 showing him owner of the property. He further claimed that the property in dispute, which was part and parcel of other properties left behind Dr. Sher Muhammad was partitioned amongst the recorded owners, in consequence whereof the property in dispute fell to the share of Dr. Muhammad Jaffar who later on transferred his share in his name. He also produced in his statement private partition deed as Exh.A/9, authenticity whereof was challenged by the respondents' counsel at the time of its production, however, respondents themselves produced Mutation Nos. 594 and 593 as Exh.R/1 to Exh.R/2, out of which Exh.R/2 i,e, Mutation No,593 confirmed that the property was partitioned between the recorded owners privately and in this regard entries were also carried 'out in revenue record. The perusal of Exh.R/2 further shows that initially property was owned by Mst. Zubaida Begum, Muhammad Jaffar, Nasreen Bano, Yasmeen, Azra Jameel, Sadia Jameel, Shaheen, Bilal Nawaz, Usman Nawaz and Sardar Iftikhar Ahmed Khan bearing Khasra Nos. 295, 310, 311, 312, 313, 316, 321, 317, 308, 315, 309, 319, 314, 318, 320 and 294 consisting of 16 pieces (Khasra numbers) and after private partition Khasra numbers were reallocated, according to which Property bearing Khasra Nos.321, 32(J, 524/319, 525/319, 526/318, 521/295, 522/295 and 519/294 fell to the share of Mst.
Zubaida Begum, Muhammad Jaffar, Yasmeen, Azra Jameel, Sadia Jameel, Shaheen, Bilal Nawaz and Usman Nawaz, whereas Property bearing Khasra Nos. 520/295, 523/295, 310, 311, 312, 313, 316, 528/317, 529/317, 527/318, 308, 315 and 309 fell to the share of Muhammad Jaffar, Nasreen Bano and Sardar Iftikhar Ahmed Khan. It may further be noted that Dr. Muhammad Jaffar was owner in both pieces of land after partition. According to Exh.R/2 he was owner of 3927 shares out of 20158 shares in the property fallen to the share of Mst. Zubaida begum and others, whereas; he was also owner of 1485 shares out of 23138 shares fell to the share of Nasreen and others including appellant. Dr. Muhammad Jaffar vide Mutation No,594 transferred his share in both the properties in the name of Mst. Zubaida Begum and Sardar Iftikhar Ahmed (Appellant). The mutation Entry No,594 (Exh.R/1) further indicates that Dr. Muhammad Jaffar transferred his 3927 shares measuring 3927 sq.Ft in the name of Mst. Zubaida Begum, whereas; he transferred his 1485 shares measuring 1485 sq.Ft. In the name of Sardar Iftikhar Ahmed. Thus; it is abundantly clear from the Mutation No,594 that he transferred that property in the name of Zubaida Bcgum in which she had already share after partition, consisting of a 8 pieces, whereas; Dr Muhammad Jaffar transferred his share of that property to Sardar Iftikhar Ahmed wherein the latter was already co-sharer. It is also not disputed that none of the recorded owners has ever challenged such mutation entries or for that matter 'ownership of Dr. Muhammad Jaffar, therefore; the respondents who were inducted in the shops in dispute by Dr. Muhammad Jaffar and are still depositing rent in his name could not be allowed to dispute title of Sardar Iftikhar Ahmed and refused to attorn him landlord as he has become their landlord by operation of law having stepped into the shoes of Dr. Muhammad Jaffar. It has also come on record through the statement of A.W. Chaudhry Mumtaz Yousaf, Advocate that a notice within the meaning of section 13-A was issued to the respondents informing them about change of landlord and demanding rent from them. He also placed on record original copies of receipts issued by the courier service company showing that the notices were duly delivered to the respective addressees, therefore; claim of the respondents that they have not received any notice under section 13-A was based on a false statement and could not be believed. Despite; receipt of such notices they failed to tender rent to the appellant or attorn him as their landlord, which denial appears to be contumacious one as the tenants have no legal right to deny the title of appellant who has become their landlord by operation of law and continue to deposit rent in the name of dead person. In this regard, I am fortified by the judgment reported in 1980 CLC 1189 wherein; it was observed as under:-- "It has not been deposed by anyone that the gift of the disputed shop was a fictitious transaction which was simply aimed at ousting the respondent. There is also no dispute between the donor and the donee in regard to the gift. The respondent being a tenant of the disputed property, therefore, cannot question its validity. He cannot stop the property from changing hands. In taking this view, I am fortified by the following observations of my learned brother Mushtaq Hussain, J.
(now Chief Justice of this court) in Master Chiragh Din v. Abdul Hakim and another PLD 1974 Lah.
370. `The right of a tenant or lessee is in the nature of an encumbrance on the right of ownership of the landlord. The right of a tenant is to the temporary use of the property in accordance with the terms of'the tenancy and the right of the land-owner is consequently 'subject to and limited' by the right of the tenant to such temporary use. By the creation of a tenancy the ownership of the property vested in the landowner does not pass to the tenant.
' The so-called right of the tenant in the present case is to remain in possession of the property in this capacity so long as the law and his own conduct permit him to do so irrespective of whether the property remains in the ownership of the custodian, the Evacuee Property Trust Board or Dr. Abdul Hakim, the transferee.
' This encumbrance does not and cannot confer any right upon the tenant to stop the landlord from transferring the property nor does it entitle him to impede the change in legal character of the property for the power to do so falls, within the domain of ownership or proprietary rights and vests in the landowner and not the lessee."
As already observed the respondents were inducted in the premises in dispute by Dr. Muhammad War but after his death the respondents are still depositing rent in his name despite receipt of notices which appears to be malicious one. It is nobody case that after death of Dr. Muhammad Jaffar any other recorded owner came forward and claimed to be landlord by operation of law or having stepped into the shoes of Dr. Muhammad Jaffar, therefore, the respondents were under legal obligations to have tendered rent to the appellant instead of disputing his title. As far as; statement of Muhammad Jahangir Sadiq disputing title of appellant or for that- matter claiming that Dr. Muhammad Jaffar has got mutated property in his name by forging signatures of Dr. Sher Muhammad thereby depriving other legal heirs, is concerned, it has no bearing on merits of the case because firstly; the respondents themselves admitted to have been inducted in the premises in dispute by Dr. Muhammad Jaffar, secondly; neither father of Muhammad Jahangir Sadiq who was son of Dr. Sher Muhammad nor his mother Zubaida Begum challenged mutation entries carried out in the name of Dr. Muhammad Jaffar during' the lifetime of Dr. Sher Muhammad.
' As far as case-law referred to by learned counsel for the respondents, it may be observed that same is distinguishable on facts and law. In the judgment reported in 1991 SCMR 1376 the Hon'ble Supreme Court held that on assumption that once a notice under section 13-A of the Rent Restriction Ordinance, has been served irrespective of the person who serves it by its own operation can establish the relationship of landlord and tenant between the person serving the notice and the person receiving the notice, the legal proposition could not be so broadly stated.
The Hon'ble Supreme Court further observed that there were two impediments un-surmountable in the jurisdiction of the Rent Controller, first since 1975 allottee of the plot had been exercising no dominion or 0control over the plot and the property was requisitioned and derequisitioned at the instance of and for the benefit of Chaudhry Muhammad Sadiq, which was subsequently hired by the appellant No,1 in that case from Ch. Muhammad Sadiq, secondly; landlady did not claim to derive any interest from Ch. Muhammad Sadiq who was being dealt with as the owner of the property since 1975, whereas; in the instant case appellant claimed to have derived interest from Dr. Muhammad Jaffar who was recorded owner of the property and have also inducted the respondents as tenants in the shops in dispute. Similarly; in the judgment report in 1994 SCMR 572 the tenant claimed to have been in possession of the property in dispute as owner, whereas; in the instant case it has never been the case of tenants that they were owners of the property in dispute or they were inducted in it by any other person instead of Dr. Muhammad Jaffar. Likewise; in the judgment reported in 1991 SCMR 215 the tenant claimed to be in occupation of premises in his own right. The judgment reported in 1991 CLC 1688 is also distinguishable because in that case tenant also claimed to have auctioned-purchased the house in dispute from settlement department. The learned counsel referred to the judgment reported in 2002 YLR 2772. In order to show that the partition deed was not admissible in evidence as execution' of the same was not proved in accordance with law but as already observed the respondents themselves produced in evidence Mutation Nos. 593 and 594 confirming the fact that the property in dispute was privately partitioned between the parties. The judgment reported in 2002 CLC 143 would also be no help to the case of respondents because in the instant case the appellant became landlord by operation of law having stepped into the shoes of Dr. Muhammad Jaffar and his such status could not be denied on the ground that the respondents never tendered rent to him.
In view of what have been discussed above, there exists relationship of landlord and tenant between the parties and denial by the respondents was malicious one, as such; I am inclined to set aside the judgment dated 29-4-2006 passed by Rent Controller/Civil Judge-V, Quetta and direct the respondents to handover vacant possession of the shops in their respective possession to the appellant, however, they are allowed two months time to vacate the shops subject to regular payment of rent of the said two months to the appellant.
' Parties are left to bear their own costs.