' The above matter has been called, when neither the respondent nor his Advocate are present.
However, I find that the learned Advocate for the respondent has left a chit, that he is busy before the Hon'ble Chief Justice. In view of this I sent for the learned Advocate for the respondent, but 1 am informed by Daftari, that the learned Advocate for the respondent is not in the Court of Hon'ble Chief Justice and as such I proceeded to hear the above appeal on merits in his absence, as he is not absent, on account of his being busy before the Hon'ble Chief Justice.
2. The appellants, who are the legal representatives of Noor Mohammad son of Kaloo Khan have filed the above appeal, being aggrieved by order dated 12th May, 1976 of the learned Rent Controller, Sukkur and judgment dated 19th February, 1977 of the learned IIIrd Additional District Judge, Sukkur, by which respondent's ejectment application No, 125/70 filed on ground of default has been allowed, as the learned Rent Controller by his order dated 12th May, 1976 came to the conclusion, that there exists relationship of landlord and tenant between respondent and the predecessor entitle of the present appellants. The order dated 12th May, 1976 of the learned Rent Controller was also confirmed by judgment dated 19th February, 1977 of the learned Illrd Additional District Judge, Sukkur and consequently appellants have filed the second appeal, being aggrieved by the said orders, on the following facts and grounds.
3. The respondent filed an application for the ejectment of Noor Mohammad, the predecessor-in- interest, of the appellants from the entire upper portion of C.S. No, D-7, 8, 9 and 10 Jhamandas Road, Sukkur. It was alleged, that the entire upper storey of C.S. Nos. D-7-8-9-10 was auctioned in favour of Abdul Kareem, which was approved by the Additional Settlement Commissioner on 9th October, 1969. The said Abdul Kareem surrendered all his rights in favour of the respondent, by Surrender Deed dated 2nd December, 1969, which was approved by the Deputy Settlement Commissioner on 2nd December, 1969 and on the same day P. T. D. (Permanent Transfer Deed) was issued and it was attested by the Deputy Settlement Commissioner on 17th December, 1969.
Subsequently the City Survey Office gave the number "7A" to the entire upper portion of D-7-8-9, 10 and mutated the name of the respondent. He contended, that the appellants being in possession, after the death of Noor Mohammad on 11th July, 1974, they are the tenants. He claimed rent at the rate of Rs, 28.81 from 2nd December, 1969 upto 3rd March, 1970, but late Noor Mohammad sent a totally wrong reply stating, that he was himself the owner.
4. The learned lower Court without deciding the issue regarding relationship of landlord and tenant passed the order for deposit of arrears and future rent, But on appeal preferred against that order, the case was remanded for deciding the said issue.
5. Evidence was to be given on the issue, but before it could be done Noor Mohammad expired.
6. An amended application was filed by the respondent against the present appellants. Written statement was required from the appellants, which they filed, in which it was contended, that the P.
T. D. In respect of the case property already issued in favour of Noor Muhammad was intact, for which he had paid a valuable consideration. No money was refunded nor the P. T. D. Was resumed and cancelled and entry made on it. Tenancy was denied as admittedly it was neither a contractual tenancy nor statutory one. It was further stated that, when the respondent was not even in picture, on the basis of his transfer, late Noor Mohammad obtained possession of the case property from its original occupants, namely (1) Ikramuddin and (2) Islamuddin ; in ejectment case No, 53 of 1963, in which order for deposit of arrears of rent and future monthly rent was passed against them. Said Ikramuddin and Islamuddin to escape the liability vacated the case property and in this way late Noor Muhammad obtained possession. Such documents were also produced, along with the written statement.
7. The matter was not put up for evidence.
8. The learned lower Court without recording evidence passed the impugned order, hence this first appeal was preferred, which was dismissed by the impugned judgment, hence this second appeal.
9. The learned Advocate for the appellants submitted that the learned Rent Controller, without recording any evidence, decided the preliminary issue of relationship between the appellants and respondent, vide his order dated 12th May, 1976 and consequently the appellants filed first appeal No, 49 of 1976 in the Court of IIIrd Additional District Judge, Sukkur, which too was rejected, vide judgment dated 19th February, 1977 and consequently appellants have filed the above second appeal on the grounds mentioned in the memo. Of above appeal.
10. The learned Advocate for the appellants in support of the above appeal submitted as under :-
(a) That the appellants came into possession of the case property after 1965 and as such they were not in possession prior to 20th December, 1958 and as such they did not become statutory tenants of the respondent, even if, the assertion made by the respondent in his ejectment application were correct.
(b) That both the learned lower Courts have erroneously come to the conclusions, that since the appellants were found to be in possession of the premises in question and since the respondent produced documents of title from the settlement authorities, there existed a relationship of landlord and tenant between the parties ipso facto.
(c) That the appellants on coming to know about the transfer of the disputed premises in favour of the respondent, first challenged the said transfer before the appropriate authorities, under the Settlement Act and thereafter filed a suit No, 221/74 in the competent civil Court at Sukkur, which suit was decreed in favour of the appellants on 30th January, 1982 and in support of this the learned Advocate for the appellants has produced certified copy of the judgment and decree and true copy of the plaint which are kept on record.
11. According to the learned Advocate for the appellants, no doubt respondent, who was defendant No, 5 in Suit No, 221/74 has filed appeal against the judgment and decree in question, but still on the basis of said judgment and decree, the question of existence of relationship of landlord and tenant between the parties. At this stage does not arise.
12. In view of the above submissions made by the learned Advocate for the appellant, he stated, that the order dated 12th May, 1976 and judgment dated 19th February, 1977 of both the learned lower Courts cannot be sustained and are liable to be set aside, on the basis of the above contentions urged by him.
13. I have gone through the record and proceedings of both the learned lower Courts, as well as through the impugned order of the learned Rent Controller and the impugned judgment of the learned first appellate Court, as well as through the judgment and decree passed in Civil Suit No, 221/74 in favour of appellants.
14. It is an admitted position from the record, that the learned Rent Controller did not record any evidence in respect of the preliminary issue and disposed of the said issue on the basis of the certain documents, which were filed by the parties before him. In view of this I find that the learned Rent Controller as well as learned first appellate Court failed to take into consideration the exact date on which the appellants and/or their predecessorin-title came into possession of the disputed premises, which was very material for purposes of deciding whether the appellants and/or their predecessor-in-title became statutory tenant of the respondent, on account of transfer of the disputed premises in the name of the respondent, which was in force at the time, when the said application for ejectment was pending. According to the learned Advocate for the appellants, that in their amended written statement, which is available on the file of the learned Rent Controller, the appellants, predecessor-in-title had filed an ejectment application No, 53 of 1965 against Ikramuddin and Islamuddin for obtaining possession of the disputed premises, which are at present in occupation of the appellants and as a result of grant of said ejectment application, the appellants predecessor-in-title obtained the possession of the said premises for the first time on 15th November, 1965 and as such the question of original opponent, the predecessor-in-title of the present appellants having become the statutory tenant of the premises in question, on the basis of the transfer of the premises in favour of respondent, which was in force at the time of the filing of the ejectment application, does not arise at all and as such the very basis on which both the learned lower Courts have come to conclusions, that there exists a relationship of landlord and tenant between the respondents and original opponent disappears and there is nothing else on record, by which said relationship could even prima facie be presumed. On this ground alone in my opinion the order of the learned Rent Controller and the impugned judgment of the learned II1rd Addl. District Judge is liable to be set aside. In addition to this I find that the transfer of the disputed premises in favour of the present respondent, by judgment and decree of learned Senior Civil Judge, Sukkur passed in Suit No, 221/74 stands declared as illegal and not subsisting and by this very judgment the ownership of the disputed premises in favour of the present appellant as the successor of Mr. Noor Mohammad has been confirmed. In view of this also, there exists no relationship of landlord and tenant between the parties at this juncture, when I am hearing the above second appeal. Therefore, in view of my above conclusions and findings I am of the opinion, that there was no material on record, before both the learned lower Courts to hold, that the original opponent had become the statutory tenant of respondent above-named on the transfer of the disputed premises in question to him and as such the said issue could not have been disposed of, without recording of evidence to establish such relationship, which was not done and consequently. I allow the above appeal and set aside order dated 12th May, 1976 of the learned Rent Controller and judgment dated 19th February, 1977 of the learned IIIrd Additional District Judge, Sukkur and remand back the case to the court of learned Rent Controller, with directions to afford opportunity C to both the parties to lead evidence in respect of existence or non-existence of the relationship of the landlord and tenant, between them and then to dispose of the preliminary issue already framed by it. In view of the facts and circumstances of the case I would pass no orders as to costs and since this matter is pending before the learned Rent Controller right from 1970, I direct the learned Rent Controller to dispose of this matter within 6 weeks from the receipt of copy of this order and report compliance to this Court.