This appeal arises out of judgment dated 15th February 1978 of the learned IIIrd Additional Judge, Sukkur dismissing the appellant's appeal and thereby upholding the order dated 8-9-1976 of the Joint Civil Judge and the Rent Controller, Sukkur, whereby the appellant has been directed to hand over the vacant possession of the premises in question to the respondent.
The facts, briefly stated, are that the respondent is `a transferee of C. S. No. A-260 situated in a Shorai Old, Sukkur by virtue of P. T. D. No. 1170 dated 15-2-1972. She filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of Rent Controller, Sukkur on 26th February, 1973 for ejectment of the appellant stating that 3-4 years ago the opponent bad illegally occupied an area 202.2 sq. Yards of the said house transferred to her. It was further alleged by the respondent that after the transfer of the said house the appellant challenged the validity of its transfer in favour of the respondent before the Settlement Authorities but his appeal was dismissed by Additional Settlement Commis--sioner. 1t was further alleged by the respondent that the appellant was the owner of a house bearing No. C. S. 258/1 which is situated just adjacent to the abovesaid house of the respondent, and also in occupation of another house bearing C. S. No. A- 258/2 situated in the same locality; and therefore, the opponent was not a protected tenant. It was further alleged that the appellant sent notice dated 3-7-1972 to the appellant but he avoided to receive the same ,and thus it returned unserved. The respondent sent another notice on 17-7-1972 to the appellant by registered post A. D. But the appellant refused to receive the same. The appellant though was requested to pay rent of the premises in dispute the appellant having not paid rent of the premises in dispute since 15-2-1972 made himself liable to ejectment from the premises in question.
The appellant contested the said application and alleged that he was not in occupation of any portion of C. S. A-260, Old Sukkur, as such the question of payment of rent to the respondent did not arise because appellant had been residing since 1950 in his house bearing No. A-258, Old Sukkur, duly transferred to him.
Both the parties led their evidence oral as well as documentary before the Rent Controller, Sukkur who held in his order dated 8-9-1976 that the respondent was the landlady of the appellant and that the Rent application was maintainable. Further relying the authority in Nisar Ahmad v. Nazar Muhammad (1) passed an - ejectment order straightaway. .
The appellant filed an appeal against the said order which was heard by the IIIrd Additional Judge, Sukkur who upheld with the order of the learned Rent Controller and dismissed the said appeal by his judgment dated 15-2-1978 directing the appellant to hand over vacant possession of the premi--ses in question within one month from the date of his order to the respondent.
The learned counsel for the appellant firstly contended that the evidence of the Survey Inspector Exh. 34 was not correctly appreciated by the Courts below and that there was no corroborative evidence. He further contended that the premises in question belonged to the appellant. I am afraid, on the face of record produced before the learned Rent Controller the contention of the learned counsel is not tenable. It is clearly established that C. S. 258/1 belonged to the appellant whereas on the demar--cation of the actual area made on the application of the appellant himself it was found that C. S. 258/ 1 and C. S. 258/2 and a portion of C. S. 260-A measuring 202.2 sq. Yards was in .Possession of the, appellant who was issued by the City Surveyor a Rubkari after inspecting the site addressed by him to the appellant which was produced as Exh.
35. He did also produce the site inspection report Exh. 37 with a detailed sketch Exh.
38. Besides the attorney of the respondent .Who is her husband produced P. T. D. Exh. 42, City Survey extract card Exh. 43, and sketch Exh.
44. He also produced the application of the appellant Exh. 45 addressed to the Deputy Settlement Commissioner for correction of the C. S. No. A-258 and addition of C. S. No. 260 in his P.
T. D. He also produced a number of orders of the Settlement Authorities Exhs. 46, 47 and Exh. 48 which are sufficient to prove the fact that C. S. 260-A was duly transferred in favour of the respondent. I would; therefore, uphold the finding of the two Courts below that the respondent is the transferee of the house bearing No. C. S. No. 2C0-A by the Settlement Department and that the appellant is in occupation of a portion of that house measuring 202.2 sq. Yards.
The learned counsel for the appellant, lastly, contended that the respon--dent having once alleged in her application that the appellant come into possession of the premises in question unauthorisedly, Cannot sue him as tenant. In support of this contention he relied _ upon the case of Faqir Muhammad v. Mulla Mahmood (2) wherein it was held that:- "A Rent Controller can proceed with an application under section 13 of West Pakistan Urban Rent Restriction Ordinance, only if he finds that such a relationship subsists. In case of a dispute between the parties on that score, he had to decide it as a preliminary issue. Here the case of the respondent all along was that the appellant was an unauthorised occupant. As the matters stand, the Rent Con--troller had no jurisdiction in the matter and order passed by him was a nullity and liable to set aside."
(1) PLD 1974 Lah. 489(2) PLD 1973 Quetta 1 The principle of law as laid down in the above-cited case cannot be disputed. The facts of the present case, however, are somewhat not similar. In the case cited above, the application unequivocally dubbed the appellant a trespasser. The same stand was maintained by him in his statement during the proceedings before the learned Rent Controller. The opponent also in his statement did not acknowledge the applicant as his landlord and even in his appeal the grounds of appeal included that there was no relationship of landlord and tenant between the parties: In the present case although the respondent stated in her application for ejectment that the appellant came into possession of the premises in question unauthorisedly, but she recognized him as his tenant, and demanded rent from him w.e.f. 15-2-1972 at the rate of Rs. 40 per month. She also clearly stated in her application that she had been requesting the appellant to pay' rent of the house but he always refused to make payment. A The appellant, in his statement before the Court, makes no statement as to admitting or denying himself to be the tenant of the _ respondent. In fact he claims the property in question in his own right as included in C. S. No. 258/1 of which admittedly he is an owner. Further, the appellant, has not taken any plea as to the non-existence of the, relationship of landlord and tenant in his memo of 2nd appeal. The judgment, thus, cited at the Bar is distinguishable.
The upshot of the above discussion is that the Courts below were. Justified in ordering the eviction of appellant after having found that the' appellant's denial to the title of the respondent and his refusal to the liability of paying rent to the respondent, was wrong and illegal. In this respect, the learned counsel has rightly relied upon the authority (PLD 1974 Lah. 489) cited in the impugned judgment. Two more authorities namely Ishrat Hussain v. Subedar and others (1) and Sikandar Khan v. Muhammad Aimr (2) may well be mentioned. .
(1) 1975 SCMR 19(2) PLD 1979 Kar. 59