' AZIZ-UR-RAHMAN, J.---Through the instant petition under Article 199 of Constitution of Islamic Republic of Pakistan 1973, the petitioner viz. Muhammad Anwar son of Muhammad Akbar [hereinafter Petitioner-Tenant] has impugned Judgment dated 21-1-2012 passed by VIIth.
Additional District Judge, Hyderabad as [Annexures 'S' to MoP], whereby the judgment dated 30-9- 2011 passed by Ist Senior Civil Judge/Rent Controller, Hyderabad [Annexure 'N' to MoP] was upheld.
The prayers sought in the Memo of Petition [MoP] read as follows:--
(a) Declaration that order dated 30-9-2011 annexure-N and judgment dated 21-1-2012 annexure-S having been passed by learned respondents Nos.2 and 3 without any lawful authority are of no legal effect.
(b) Permanent injunction be issued restraining the respondents from acting upon the said judgment and order and in any manner from interfering with the possession of petitioner.
(c) Any other relief this honoruable Court deems fit may be granted.
(d) That the costs of the petition be borne by the respondents.
2. The brief facts giving rise to this Constitutional Petition are that:--
3. Mir Rafique Ahmed Talpur son of Rasool Bux Khan Talpur [hereinafter respondent No,1-Landlord], on 1-7-2010 filed Rent Application No,18 of 2010 under section 15 of Sindh Rented Premises Ordinance, 1979 [hereinafter abbreviated as SRPO, 1979] against the petitioner before the Court of Ist. Senior Civil Judge/Rent Controller, Hyderabad for his ejectment from the property bearing City Survey [In short of C.S.No,] No,2451, Ward 'G' at Kuchi Mohalla, Mirpur Road, near Phuleli Pul, Hyderabad [hereinafter referred to as 'subject premises'] on the ground of 'wilful default' of monthly Rent @ Rs,3500 from March, 2010 onward and also on the ground of personal bona fide need of the respondent No,1 rented out to the petitioner vide Rent Agreement dated 5-5-2007 for a period of five (5) years [i,e, 1-5-2007 till 1-5-2012] @ rate of Rs,3500 per month on the terms and conditions mutually settled between the parties.
4. The petitioner per mutually agreed terms and conditions deposited Rs,1,00,000 [Rupees One Lac only] as 'security deposit'. The petitioner, per averments of the respondent No,1, was regular in payment of monthly rent, but only uptill February, 2010. The petitioner, thereafter committed 'wilful default' onward up-till filing of the above Rent case No,18 of 2010. That respondent No,1 also required the 'subject premises' on account of his personal bona fide need. Respondent No,1, under circumstances, filed Rent Application No,18 of 2010 under Section 15 of SRPO, 1979 [Mir Rafique Ahmed Khan Talpur v. Muhammad Anwar] before the Court of 1st. Senior Civil Judge/Rent Controller, Hyderabad with the following prayers:-
(a) To allow the ejectment application and direct the opponent to vacate the rented premises being wilful defaulter in the payment of rent and put the applicant in peaceful possession of the premises as the same is also required for his personal bona fide use.
(b) Cost of the suit may be awarded to the applicant.
(c) Any other relief(s) being fit and proper in the circumstances of the present case be granted in favour of the applicant.
5. Upon service, the petitioner filed his Written Reply. Besides raising the plea of maintainability vis- a-vis Rent case also denied the relationship of Landlord and Tenant between the parties. In the Written Reply, it was further asserted that 'subject premises' was not situated at kuchi Mohallah, rather at main Mirpurkhas Road, Phulleli Para, Hyderabad. The respondent No,1, per petitioners' assertion is not owner of the 'subject premises'. The respondent No,1 in fact has rented out Plot No, 'Nil' @ Rs,3500 [Rupees Thirty Five Hundred only] per month and against 'security deposit' of Rs,1,00,000 [Rupees One Lac only] to the petitioner.
6. Further, petitioner is running his business in shop No,2449/G, but in his capacity as co-owner to the extent of 50% share, and not as a tenant. The petitioner, per assertion, is neither tenant of respondent No, I nor was put in possession of C.S.No,2451 [i,e, subject premises] in such capacity.
7. Moreover, the petitioner through sale deed of 8-10-2009 has allegedly, purchased '50 paisa shares' in C.S.Nos. G/2451, 2452, 2453 and 2455 and as such is 'Co-Owner' with respondent No,1 [Landlord]. Per averments, in 'Written Reply' one Muhammad Aslam s/o Muhammad Akbar [brother of the petitioner] is actually in possession of the 'Subject Premises' i,e, C.S. No,2451 and it is he who is paying rent to respondent No,1 [Landlord]. The personal bona fide need of respondent No,1 regarding 'subject premises' nonetheless was also denied.
8. In the Written Reply, the factum of execution of Rent Agreement of 5-5-2007 [Exh.18/A], payment of monthly rent by the petitioner [Tenant] was clearly admitted. Besides, payment of Rs,100,000 [Rupees One Lac only] as a 'security deposit' with the respondent No,1 in pursuance of Exh.18/A was also admitted in clear cut words.
9. Nevertheless, out of the pleadings, the following points for determination were framed, by the 1st Senior Civil Judge/Rent Controller, Hyderabad:-- 'Point No,1: Whether there exists relationship of landlord and tenant between the parties?
' Point No,2: Whether the opponent has committed wilful default in payment of rent?
' Point No,3: What should the order be?
10. No issue/point for determination vis-a-vis Petitioner/Tenants' claim of alleged 50 paisas share inter alia, in the 'subject premises' was framed, for the obvious reason that Rent Controller could not adjudicate upon the title of the land between the parties.
11. Parties went on trial on the above mentioned points.
12. Respondent No,1 [Landlord], in support of his contentions, filed his 'affidavit-in-evidence' wherein besides reiterating the pleas/grounds taken in the Rent Application No,18 of 2010 filed under section 15 SRPO, 1979 [Ordinance XVII of 1979], the assertions made by the petitioner [Tenant] in his Written Reply were forcefully denied/ controverted. In his 'deposition' respondent No,1 [Mir Rafiq Khan Talpur son of Rasool Bux Talpur] produced the following documents. The details of documents produced and exhibited are as follows:--
(a) Rent Agreement executed between the respondent No,1 [Landlord] and petitioner[Tenant] as Exh.18/A.
(b) Special Power of Attorney dated 3rd May 2010 duly signed and executed by other legal heirs of Mir Rasool Bux Khan Talpur in favour of respondent No,1 [Landlord] as Ex.18/B.
(c) Counter receipts of Rent receipts [Three Books] as Ex.18/C.
(d) Legal Notice dated 7-4-2010 sent by respondent No,1 to the petitioner [Tenant] as Ex.18/D.
(e) Extract from Property Register Card-,'Ward-G' as Ex.18/E.
13. Respondent No,1 was duly 'cross-examined' by the counsel for the petitioner, but nothing adverse to the interest of Landlord came on record.
14. Besides, the Manager of respondent No,1 [Landlord] also adduced evidence by way of filing his 'affidavit-in-evidence' at Ex.69. The said witness [viz. Ghulam Hussain] was duly 'cross-examined' by the learned counsel for the petitioner [Tenant].
15. Thereafter, the petitioner viz. Muhammad Anwar filed his 'affidavit-in-evidence' at Ex.24 who was duly 'cross-examined' on 18-4-2011 by the learned counsel for the respondent No,l. Being more important and relevant as far as controversy in hand is concerned, the "cross-examination" of the petitioner [Tenant] is reproduced herein below:-- "The contents of written reply and my affidavit in evidence were read over by my counsel before filing in the court. It is incorrect to suggest that originally the suit rented premises is in the name of Mir Rasool Bux Khan and others in the record of rights. It is correct to suggest that I purchased suit rented premises on 8-10-2009 from Qaisar Khan Nizamani in sum of Rs,32000. It is correct to suggest that I made rent agreement with applicant Mir Rafique Ahmed Talpur for another rented premises on 5-5-2007. Vol. Says that area of the rented premises is mentioned 2000 sq. Ft. In the rent agreement produced at Ex.18/A and still my younger brother is paying monthly rent to Mir Rafique Ahmed of the same rented premises mentioned in rent agreement. It is correct to suggest that in the rent agreement produced at Ex.18/A in which I am second party as tenant as well as my name and my NIC No, is also mentioned. It is correct to suggest that in the rent agreement produced at Ex. 18/A in which monthly rent is mentioned Rs,3500 per month. It is correct to suggest that I have not produced any rent agreement which executed in between my younger brother and applicant before this Court. I have objection if the court will vacate the possession of rented premises from the opponent because my younger brother is paying monthly rent to applicant regularly. On behalf of applicant his munshi is receiving monthly rent regularly from tenant. It is correct to suggest that my father opponent and my younger brother were also tenant of applicant of different shops. Applicant has only share 50% in suit rented shop and other shops while I am owner of other 50%. After executing registry of rented shop I did not pay monthly rent to applicant as I have purchased 50% share of all the properties which are in my possession. It is incorrect to suggest that from the month of November, 2009 I paid monthly rent to applicant of suit premises. It is incorrect to suggest that from the month of November, 2009 to February, 2010 1 paid monthly rent to Munshi Ghulam Hussain of applicant Rs,3500 per month. It is incorrect to suggest that possession of rented premises was given to me by applicant. I did not send notice to applicant prior purchase of rented premises. Prior purchase of rented premises from Qaisar Khan Nizamani I checked all the title documents executed in his favour. It is incorrect to suggest that I am party in the Member Board of Revenue in respect of the same rented premises regarding forged entries. It is incorrect to suggest that I received notice from applicant through his counsel regarding payment of monthly rent of rented premises. I do not remember when my father was expired. It is correct to suggest that I have in possession of shop which was rented to Akbar by the applicant. The monthly rent of that shop is Rs,1200 and after registry I stopped monthly rent. It is correct to suggest that prior to registry applicant issued two rent receipts in my favour of Rs,3500 and Rs,1200. It is incorrect to suggest that I am defaulter from the month of March, 2010 till today. It is incorrect to suggest that applicant is owner of suit rented shop and I am tenant. It is incorrect to suggest that I am deposing falsely before this court".
16. Apart from the above, one official witness viz. Nazimuddin son of Hafiz Muhammad Saleh City Survey Officer, Hyderabad was also examined [without taking Oath] at Ex.35. The said witness besides, not taking Oath was also not put to 'cross-examination. In view of this position, his evidence without going through the rigors of 'cross-examination' seems to be of no avail.
17. Upon conclusion of evidence and after hearing of arguments on both points settled for determination [Reproduced herein above] learned Ist Senior Civil Judge/Rent Controller, Hyderabad gave his findings in 'affirmative'. Resultantly Rent Application No,18 of 2010 [Mir R.Afiq Ahmed Talpur v. Muhammad Anwar] was allowed. The operative part of judgment dated 30-9-2011 reads as follows:- "In the light of above reasons on my finding 1 am of the humble opinion that the applicant has fully proved his case as such instant application is allowed and opponent is directed to vacate the premises C.S. No, 2451 Ward-G situated at Mirpur Road near Phuleli Pul, Hyderabad and handed over its vacant physical possession to the applicant within three months. There is no order as to cost.
18. Being aggrieved and dis-satisfied with the judgment of 30-9-2011 passed. By the learned Ist.
Senior Civil Judge/Rent Controller, Hyderabad [Annexure 'N' to MoP], the petitioner herein preferred FRA No,50 of 2011 [Muhammad Anwar son of Muhammad Akbar v. Mir Rafique Ahmed Talpur son of Rasool Bux Khan Talpur] which nonetheless was also dismissed vide impugned judgment of 21-1- 2012 [Annexure 'S'to MoP]. The operative part of the impugned judgment reads as follow:--- "The upshot of the above discussion is that appellant/applicant failed to point out any illegality or irregularity committed by the learned Rent Controller while passing judgment dated 30-9-2011, therefore, same is hereby maintained, present FRA merits no consideration hence, same is dismissed accordingly."
19. Hence this Petition.
20. When the above petition came up for Katchi Peshi and hearing of a listed application. I heard the learned counsel for the parties and with their valuable assistance also gone through the record available before me.
21. Mr. Sundardas, learned counsel for the petitioner forcefully argued that the judgments passed by the Courts below are against facts, law and equity, thus not sustainable in law. Learned counsel further contended that the impugned judgment [Annexure 'S' to MoP] passed by learned VIIth Additional District Judge, Hyderabad as well as the judgment [Annexure 'N' to MoP] passed by learned Ist. Senior Civil Judge/Rent Controller, Hyderabad is a result of non-reading and/or misreading of evidence. Per Mr. Sundardas both Courts below have not properly appreciated the factum of 50% share of the petitioner in C.S. Nos.2451/G [subject premises] and other properties bearing C.S.Nos.2452/G, 2453/G and 2455/G. Besides, learned counsel for the petitioner further contended that the shop wherein the petitioner is running his business bearing S . No,2449. The petitioner per averments is owner to the extent of 50% share in the aforesaid shop.
22. Per learned counsel, no doubt, Rent Agreement dated 5-5-2007 [Exh.18/A] has been duly signed and executed between respondent No,1 [Landlord] and the petitioner [Tenant] but the rent agreement [Exh.18/A] so executed between the parties does not refer to any specific survey number. The area mentioned in Ex. 18/A, of course, is 2000 feets. The advance payment of Rs, 100,000 [Rupees One Lac only] as 'security deposit' with the respondent No,1 pursuant to rent agreement of 5-5-2007 is refundable as the petitioner is owner to the extent of 50% share in C.S.No,2451/G.
23. Regarding petitioners' ownership, learned counsel for the petitioner made reference to Ward- 'G'-'Extract From Property Register Card of 28th April, 2010 Exh.['18/E'] wherein on the backside of Ex.'18/E', the share of one Qaisar Khan Nizamani has been shown to the extent of 69.5 sq. . [The area of the 'subject premises' i,e, C.S.No,2451, it is worth to note is measuring 35-4 sq. Yards]. In support of his contention learned counsel for the petitioner placed reliance on the case of SANOBAR SULTAN and others v. UBAIDULLAH KHAN and others [Reported in PLD 2009 SC 71].
24. Conversely, Mr. Irfan Ahmed Qureshi, learned counsel for the respondent No,1 vehemently argued that the 'concurrent judgments' passed by the two courts below beside, valid having been passed after due application of judicial mind and indeed after proper appreciation of evidence on record. Per learned counsel, it is established principle of law that when a tenant takes the plea of purchase of the Rented out Premises, then in such eventuality Tenant has to firstly vacate the same and thereafter to seek his remedy if, available to him by way of filing of civil suit. From the evidence on record, per learned counsel, the relationship of landlord and tenant has been fully established.
25. Per learned counsel, the Rent Agreement dated 5-5-2007 [Exh.18/A] has been admittedly executed between respondent No,1 and the petitioner. Pursuant to Rent Agreement [Exh.18/A], the petitioner without any 'hue' and 'cry' has regularly paid rent upto February, 2010. The 'default' thereafter committed by the petitioner is from March, 2010 onward. Relationship of landlord and tenant and payment of monthly Rent @ Rs,3500] Thirty Five Hundred only] as well is quite evident from the Exhibits '18/A' [Rent Agreement] and '18/C' [Three Books of Rent Receipts]. Per learned counsel, the so-called sale deed of 8-10-2009 allegedly executed in favour of tenant by someone else [Qaiser Khan Nizamani son of Ghulam Qadir Khan Nizamani] at the back of landlord, besides bogus, forged is a fabricated document, thus not binding on the respondent No,1 [Landlord]. Per learned counsel, the alleged document even otherwise, has not been brought on record in evidence. As such, the claim of title merits no consideration much-less in ejectement proceedings.
26. Learned counsel for the respondent No,1, while arguing the case submitted that the petitioner has not only admitted the execution of tenancy agreement [Exh.18/A] but also payment of rent to the respondent No,1 through his Manager viz. Ghulam Hussain son of Imamuddin Arain. Per learned counsel, in view of such clear cut admission, the petitioner cannot be permitted to deny the ownership of respondent No,1 [Landlord]. The so-called sale deed 'DURING CURRENCY OF THE TENANCY AGREEMENT' at the back of the landlord is of no legal effect. Such afterthought and calculated attempt on the part of tenant is nothing but only an attempt to avoid and/or forestall his eviction from the 'subject premises'. The plea of ownership as raised by petitioner [Tenant] besides contumacious, deserves straightaway rejection.
27. Per learned counsel, existence of Relationship between the landlord and tenant and/or 'default' of monthly rent by the petitioner is manifestly clear from the record available. The concurrent judgments passed by the courts below are not open to any interference much-less under the exercise of constitutional jurisdiction. In absence of any illegality and/or irregularity in passing of the concurrent judgments, petitioners' wish for interference, indeed, calls for his wisdom. Finally, learned counsel for the respondent No,1 urged that the instant petition being devoid of merits is liable to be dismissed with cost.
28. Heard and perused the record.
29. Before proceeding further, at this stage it would be advantageous to reproduce herein the definitions of 'landlord' and 'Tenant' under clauses 2(f) and (j) of section 2 of SRPO, 1979:-
2. Definitions. In this Ordinance, unless there is anything repugnant in the subject or context.
(c).
(d).
(e)..
(1) "Landlord" means the owner of the premises and includes a person-who is for the time being authorized or entitled to receive rent in respect of such premises.
(g) ---------------
(h) --------------- (i)
(j) "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 of the 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; and
30. The definition of landlord under section 2(f) of SRPO, 1979 not only includes owner but also the authorized person entitled to receive rent in respect of rented out premises.
31. In the present case, the terms settled mutually under the Rent Agreement of 5-5-2007 [Ex.18/A] and reproduced in Para-3 of the Rent Application read as follows:--
(i) That the rented premises was delivered to the opponent for the period of 5 years started from 1-5-2007 and completed on 1-5-2012 at the rate of Rs,3500 per month along with the security deposit of Rs,100,000 the rent was paid upto the every 5th day of the calendar month and in default Rs,50 per day would be liable against the opponent.
(ii) That the premises wherever situated and whatever in condition was given to the opponent and if the opponent made any construction that will be subject to the permission with the landlord. Furthermore, any commercial meter of sui gas or electricity would required to be installed, the same with the prior permission and NOC of the landlord, which he delivered.
(iii) That the rented premises would be used only by the tenant and the possession would not be delivered to any other person, if delivered same with the prior permission of the landlord. It is further mentioned it is only the power of landlord to deliver the premises to another person with new terms and conditions. The opponent is fully restrained not to do the restrained business or abnormal activities/business in the rented premises. After completion of the agreement it is the sweet will of the landlord either to extend the agreement for further period. However, the 10% increment would be made after every 3 years. The agreement was reduced in writing with the mutual consent of the parties.
32. The terms settled under the Rent Agreement [Ex.18/A] and deposit of Rs,100,000 [Rupees One Lac only] in pursuance thereof as 'security deposit' have been clearly admitted by the petitioner [Tenant] in B Para-3 of his Written Reply. The contents of Para-3 of the written reply read as follows: "3. That the contents of para-3 of the rent application is partly admitted to the extent that applicant and opponent entered into rent agreement dated 5-5-2007 whereby the applicant rented out plot bearing C.S.No, Nil at the rate of Rs,3500 per month and opponent deposited an amount of Rs,I00,000 as security deposit which is mentioned in the rent agreement and thereafter opponent paid Rs,25,000 to the applicant in pursuance of security deposit for which the applicant acknowledged the same on a receipt and in this manner the opponent deposited Rs,1,25,000 as security deposit with the applicant, which is liable to be refundable to the opponent as opponent is no more tenant of the applicant of any premises as such the terms and conditions of the rent agreement except security deposit which is refundable to the opponent, is not binding upon the opponent." [Underlining is mine]
33. Upon executing of Rent Agreement Ex.18/A, a Tenant cannot be allowed to place the Landlord in nuisance and/or inequitable situation by taking advantage of his possession obtained by him in his capacity as a C Tenant. Once the Relationship of 'Tenant' and 'Landlord' is established then during the Existence of Currency of Tenancy Agreement, the tenant would be deemed estopped from questioning the title of Landlord.
34. The question of title has no relevancy in Rent Proceedings particularly when the relationship of landlord and tenant is admitted and/or established. Significantly, in the instant case existence of relationship between the petitioner [Tenant] and respondent No,1 [Landlord] has been proved through sufficient evidence.
35. Besides, under section 115 of Qanun-e-Shahadat Order, 1984, a tenant of immovable property or a person claiming through such tenant, 'DURING CONTINUANCE OF THE TENANCY AGREEMENT' is not permitted to deny the landlords' title over and regarding the rented out premises. The words'
DURING CONTINUANCE OF TENANCY AGREEMENT' is of great importance and cannot be over looked.
Article 115 of the Qanun-e-Shahadat Order, 1984, embodies the 'principle of estoppel' arising from the tenancy agreement. Such principle, besides being based upon a healthy principle of law also meets the ends of justice. The petitioner as the case in hand is without entering into the tenancy agreement [Ex.18/A] 'could not have got possession of the 'subject premises'. The Tenant after executing a tenancy agreement cannot be permitted to launch any nuisance and/or keep his landlord in inequitable situation taking advantage of his possession in pursuance of tenancy agreement. In this aspect of the matter reliance is placed on AIR 1937 Privy Council 251, wherein it was observed as follows:-- "The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that, that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise which is the case before the Board on this appeal the section applies against the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lesser had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other ground of estoppel, e.g., by adornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner.
36. The alleged sale deed [NOT PRODUCED THROUGH EVIDENCE] if, assumed having been executed by one Qaisar Khan Nizamani, then too it could not end the relationship of landlord and tenant.
From the evidence, it has been clearly established that the petitioner [Tenant] obtained the possession of the 'subject premises' in his capacity as tenant and not as a purchaser. Under the 'doctrine of Landlord-Tenant Relationship' once a tenant is always a tenant. The petitioner, indeed, after signing and executing the tenancy agreement [Exh.18/A] and of paying rent upto March, 2010 [Exh.18/C i,e, Rent Receipts-3 Books] cannot be permitted to raise self-contradictory pleas much- less in violation of the terms and conditions of the tenancy agreement [Ex.18/A]. A Tenant, under law cannot be permitted to approbate, reprobate or otherwise, wriggle out of his commitments that mutually settled between the parties.
37. Regarding objection vis-a-vis filing of the Ejectment Application No,18 of 2010 by only one of the legal heirs of Mir Rasool Bux Khan Talpur [Landlord] and maintainability thereof as far as is concerned, the objections so raised besides mis-leading are mis-conceived. In the evidence the landlord [respondent No,1] has produced the power of attorney executed by other legal heirs of Mir Rasool Bux Khan Talpur in favour of respondent No,1 [Exh.18/B]. The contents of the special power of attorney belie the Petitioner/Tenant in his assertions. The terms landlord, indeed, covers all those persons who are co-owners. There is no cavil with the propositions that any one of the co-owners can competently file ejectment application against the tenant in respect of rented out premises jointly owned by them.
38. Herein the relevant portion from the landlords' cross-examination' is reproduced as under:?
"CROSS TO M R. FARHAD ALI ABRO, ADVOCATE FOR OPPONENT.
' The contents of rent application filed by me were read over to me by my counsel. It is correct to suggest that I am not single owner of rented premises but other legal heirs of late Mir Rasool Bux Talpur are also owners. It is correct to suggest that in my rent application name of other legal heirs of late Mir Rasool Bux Talpur has not been mentioned in the title page. It is correct to suggest that I produce Special Power of Attorney dated 3-5-2010. It is correct to suggest that the rent agreement was executed between applicant and opponent dated 5-5-2007. It is correct to suggest that in the rent agreement produced at Ex.18/A in which names of other legal heirs are not mentioned. It is correct to suggest that other legal heirs have not executed rent agreement with opponent in respect of rented premises. It is correct to suggest that in the rent agreement produced at Ex.18/A in which about the attorney of other legal heirs is not mentioned. It is correct to suggest that in the rent agreement city survey No, of rented premises is not mentioned. In the katchi Para Mirpur Road situated at Phuleli Pul about 30 to 50 shops are constructed of our family.
It is incorrect to suggest that out of 30 to 50 shops Dr. Ghulam Qadir Nizamani was also owner of 50% shops. It is incorrect to suggest that wife of Dr. Ghulam Qadir Nizamani is my sister nor my Aunty. It is correct to suggest that at present Dr. Ghulam Qadir Nizamani is owner of 50% property situated at Phuleli Pul. Voluntarily says he has made entry in the record of rights by way of fraud and forgery. I challenged entry before Senior Member Board of Revenue made in favour of legal heirs of Dr. Ghulam Qadir Nizamani. It is correct to suggest that as per rent agreement it is valid upto 1-5-2012 produced at Exh.18/A. It is correct to suggest that the legal notice issued to opponent in the name as Muhammad Anwar Akbar. It is correct to suggest that father name of tenant has not been mentioned.
39. The claim of the petitioner to the extent of over 50% share in 'subject premises' cannot be appropriately adjudicated upon by the Rent Controller in a case filed by the Landlord for eviction of the Tenant under section 15 SRPO, 1979. Further, the petitioner has failed to prove its title over the 'subject premises' bearing C.S. No,2451 Ward-'G' Kuchi Mohalla Mirpur Road near Phuleli Pul, Hyderabad. The area of 'subject premises' per Ex.18/E is 35-4 sq. Yards, out of which the alleged share of one Qaisar Khan Nizamani is 69.5 sq. Feet.
40. Moreover, such entry in favour of Qaisar Khan Nizamani has been challenged by respondent No,1 before the SENIOR MEMBER BOARD OF REVENUE as per contention of the respondent No,1, such entry has been made through forgery and fraud. All this shows that the title of Qaisar Khan Nizamani son of Ghulam Qadir Khan Nizamani from whom the petitioner [Tenant] claims to have purchased such area besides, dark-cloudy is pending adjudication before the Senior Member Board of Revenue. The Rent Controller in the ejectment case can only assume jurisdiction when there exists relationship of Landlord and Tenant. The entitlement of the landlord to receive rent cannot be disputed after acknowledging the relationship of Tenant and Landlord. After having taken the 'subject premises' on rent, it would not lie in the mouth of a tenant to deny such tenancy.
The petitioner in the present case was admittedly put in possession of the 'subject premises' in his capacity as a tenant and not otherwise thus, he precluded from denying the title of landlord.
41. Before backing out from the mutually agreed terms and conditions, the tenant is bound to firstly hand over vacant possession to the landlord and thereafter contest his title, if any before the competent court of law and in appropriate proceedings.
42. In the case of BARKAT MASIH v. MANZOOR AHMED [deceased] through L.Rs, reported [2006 SCM R 1068], the honourable apex Court in the like circumstances observed as under:?
(6)
'Even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences'.
43. Likewise, in the case of ABDUL RASHEED v. MAQBOOL AHMED and others [Reported in 2011 SCM R 320] the Honourable Supreme Court of Pakistan has observed as under:- '5. We have heard both the learned Advocates Supreme Court. It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. In this regard reference can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012) and Mst. Bor Bibi v.
Abdul Qadir (1996 SCMR 877). In so far as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature. Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter. Consequently, the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller. In the tentative rent order the learned Rent Controller has carried out such summary exercise and decided the relationship between the parties to exist.'[Underlining is mine]
44. The case of SANOBAR SULTAN and others v. UBAIDULLAH KHAN and others [Reported in PLD 2009 SC 71] is distinguishable. In the cited case, it is worth to note, that the title of co-owner/vendor was not under dispute. However, in the instant case, the title of one Qaisar Khan Nizamani besides, seriously disputed is pending adjudicatior before the Senior Member Board of Revenue to the knowledge of the petitioner [Tenant].
45. Since, it has been established that respondent No,1 is owner of the 'subject premises' and the petitioner [Tenant] failed to pay rent in respect of the 'subject premises' to respondent No,1 [Landlord] thus has committed 'wilful default'. The averments of personal bona fide need of respondent No,1 are consistent with the 'deposition' and 'cross-examination' of the respondent No, 1.
46. The upshot of the above discussion is that the concurrent judgments passed by the Courts below besides being based upon well and un-exceptionable reasoning warrant no interference.
Under circumstances, the instant petition is devoid of any merits thus dismissed. However, the petitioner is allowed three months time to vacate and hand over peaceful possession of the 'subject premises' to the respondent No,1 from today, but subject to regular payment of monthly rent and utility bills, if any. In case, the 'subject premises' is not vacated and its peaceful possession is not handed over to the respondent No,1 on or before the expiry of three months from today, then the learned Rent Controller shall issue writ of possession without notice to the petitioner through police aid.
' Petition stands dismissed with all pending applications.