' The appellant has challenged order, dated 12th December, 1977 passed by the learned Additional District Judge, Gujrat whereby the respondent's appeal against the order of ejectment passed against him by the Refit Controller, Gujrat on 27th October, 1975, was allowed and the appellant's petition for ejectment filed by him against the respondent was dismissed.
2. The appellant claimed to be the owner of a house situated in the A badi of Noorpur Sharqi, Gujrat.
He had leased out the said house to the respondent in December, 1972 at a monthly rent of Rs, 30.
According to the appellant, the respondent paid the rent of the house for two months and thereafter stopped payment of rent. The petition for ejectment of the respondent from the rented house was filed by the appellant on 2nd October, 1973 on the grounds that the respondent had made default in payment of rent after February, 1972 that he had caused damage to the house and had got the electric connection transferred in his name in violation of the terms of the lease, and lastly, that the appellant required the rented house for his personal use. The respondent contested the aforementioned petition and denied that he was in possession of the house as appellant's tenant. The learned Rent Controller framed the following issue to determine the question of relationship of landlord and tenant between the parties : - "Whether the relationship of landlord and tenant exists between the parties ?"
3. The appellant appeared as his own witness and also examined one Muhammad Iqbal (A. W. 2) in support of his case that the respondent Was in possession of the house as his tenant. On the other hand, the respondent alone entered the witness-box to deny the appellant's claim. Learned Rent Controller relying on the statement of the respondent that Akbar, Ghulam Hussain and Haji Muhammad were present when the rent was paid by him to the appellant, found the only issue framed in the case in favour of the appellant and passed an order of ejectment against the respondent, requiring him to deliver the possession of the house within 60 days. The respondent filed an appeal against the aforementioned order of ejectment which, as noticed earlier, was allowed by the learned Additional District Judge, as Appellate Authority, vide his order, dated 12th December, 1977.
4. No one appeared on behalf of the respondent in this appeal when it came up for hearing.
Arguments were addressed only by the learned counsel for the appellant.
5. The appellant and the respondent are real brothers and the possession of the house in question was admittedly given by the appellant to the respondent. The respondent's case is that he has purchased the house from the appellant for Rs, 2,200. In the reply filed to the appellant's petition for ejectment, no .Reference was made by the respondent to the aforementioned sale. It was only when he appeared as R. W.
1. Before the Rent Controller on 10th September, 1975 that he stated that about six months ago he had purchased the house from the appellant and that the sale price amounting to Rs, 2,200 was paid to him in the presence of Akbar, Ghulam Hussain and Haji Muhammad. Although in the aforementioned statement the word "rent" has been used but as noticed by the learned Appellate Authority, it was a clerical error and the respondent in fact wanted to say that bar, Ghulam Hussain and Haji Muhammad were present when the price of the house was paid to the appellant.
No document was, however, executed to evidence the payment of the sale price nor was any step taken by the respondent for getting the sale-deed executed and registered by the appellant. The respondent admitted during. The course of cross-examination that he had obtained electric and water connections in the house with the prossession of the appellant about three years ago when the possession of the house was obtained by him. The appellant, on the other hand, stated that the respondent had not obtained his permission before getting the electric connection in the house.
6. After going through the evidence produced by the parties in the case, it has been found that the respondent after having admitted that the possession of the house was delivered to him by the appellant and that he had obtained electric and water connections in the house with the appellant's permission, it was for the respondent to explain in what capacity he was holding possession of the house. His contention that he had purchased the house, appears to be without substance because the alleged sate, according to him, had taken place during the pendency of the ejectment proceedings against him as it was in his statement recorded by the Rent Controller on 9th October, 1975 that he had disclosed that the price of the house had been paid by him about six months ago. The petition for the ejectment, as noticed above, was filed by the appellant, on 2nd October, 1973 and since the appellant was hotly pursuing the case against the respondent, it was inconceivable that he would have sold the house to the respondent during the pendency of the proceedings. The learned Appellate Authority has taken into consideration discrepancies is the statement of the appellant and his witness Muhammad Iqbal regardin the payment of rent of the house by the respondent, but these discrepancies are of not much consequence if the same are considered in the light of admitted facts that the respondent had obtained the possession of the house from the appellant about three years ago and that he has got electric and water connections in the house with the former's permission. The appellant's contention was that he had leased out the house to the respondent whereas the latter's plea was that he was residing in the house as owner after having paid its price to the appellant. The respondent, however, has failed to prove the alleged sale of the house by the appellant in his favour. Having regard to these circumstances, the appellant's case that the respondent is in possession of the house as his tenant, stands proved. Consequently, the finding of the learned Appellate Authority is reversed and the finding of the learned Rent Controller under Issue No, I is restored.
7 The result is that the appellant's appeal is allowed and the respondent is ordered to deliver the vacant possession of the house in question to the appellant within two months, failing which the appellant may apply for the execution of this order. The appellant is also awarded the costs of this appeal.