' This First Rent Appeal is directed against the judgment of XI Rent Controller, Karachi, dated 31-10- 1983 which had ordered the ejectment of the appellant.
2. The relevant facts are that in March, 1979 the respondent filed ejectment application against the appellant for portion of house No,M-II-E-525, Shershah Colony, Karachi. The respondent claimed that the rent was Rs,40 per month and that the appellant had been proved to be a defaulter tenant and that he had a large family of 15 members and, therefore, he required the premises for the bona fide use of his family members as the accommodation in occupation of the respondent was insufficient. The appellant resisted the said application and denied the factum of relationship of landlord and tenant. The appellant contended that he had purchased the disputed house from the previous owner Faqir All for a consideration of Rs, 4,050 through a Sale Agreement.
3. Two issues of existence of relationship of landlord and tenant between the parties and requirement for personal bona fide use were framed. On behalf of the respondent affidavits of Muhammad Ali, Syed Mubarak Shah and Mumtaz All were filed and they were cross-examined by the appellant. On behalf of the appellant Gul Muhammad and Shah Zarine filed their affidavits and they were cross-examined by the respondent. Thereafter the Rent Controller granted ejectment application after hearing the parties.
4. Mr.Gul Zaman Khan, the learned counsel for the appellant has attacked the judgment of the Rent Controller on the ground that in view of the denial of relationship of landlord and tenant the Rent Controller should have refrained from deciding that question and should have referred the same to the Civil Judge for decision of title to the property. He also contended that the respondent had not been able to prove his title to the property and hence the judgment was not in accordance with the facts proved. The learned counsel for the appellant confined himself to the above contentions and did not argue on the merits of the case as far as ejectment for personal bona fide use is concerned.
5. In support of his contention Mr.Gul Zaman Khan relied upon 1983 SCMR 1064 (1071) where the Supreme Court had held that it is not correct that if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt he would still be allowed the benefit of affirmative finding of this issue. It was further observed that the finding of fact is to be reached after complete satisfaction and that too as a result of opportunity having been afforded to the parties concerned to satisfy the Controller one way or the other. The Supreme Court had also observed that the requirement of law contained in Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. It was further observed by the Supreme Court that in that situation the proper course for the Rent Controller would be, to decide the issue against the landlord and advise him to first get his title established before seeking ejectment.
6. The above cited judgment of their Lordships of the Supreme Court does not hold that the Rent Controller has no jurisdiction to decide the relationship of landlord and tenant in every case where the title to the property is in dispute. The Supreme Court has of course, held that where the landlord does not establish his position beyond reasonable doubt then in that case the question of title should not be decided by the Rent Controller and should be referred to the Civil Judge. Therefore,- it would depend upon the circumstances of each case as to whether the landlord has been able to establish his title or not. I propose to examine the same.
7. I find that the attorney of the respondent Muhammad All had deposed that he was real son of the respondent and that the disputed house was purchased by the respondent for Rs,15,000, in the name of his minor son Syed Ahmed Ali, from Faqir Ali and that the disputed portion was given on rent to Gul Mehar, appellant at Rs,40 per month, There was no written agreement between the parties. He denied in cross-examination that the appellant was not their tenant. This witness placed a copy of agreement of sale between Syed Faqir Ali and Ahmed Ali son of Ikram Ali on record and also produced a copy of P.T.I register from the Excise and Taxation Department showing that Ahmed All son of Ikram All was the owner of Plot No,M-II-E-525 and that a portion of the same was given on rent at Rs,40 per month while a portion was in his possession. It is surprising that in cross-examination of this witness the question put to him on behalf of the appellant was that the cousin of the appellant had purchased the said house. He was not even asked the question that the appellant himself had purchased the portion of the house in his occupation, although the case of the appellant in the written statement was that he was the owner of the house and had purchased the same from Syed Faqir Ali. The statement of Muhammad Ali was supported by Mumtaz Ali and there is no cross-examination worth the name against Mumtaz All except that he was not witness of the sale-deed and since there is no sale-deed in this case, therefore, the statement of Mumtaz All is not really shaken. Mumtaz Ali is a resident of the same area and the appellant did not even put to him his case that he was himself owner of the property and not the respondent. Syed Mubarak Shah who was another resident of the same area had also supported the respondent. This witness was the only person who was asked that the appellant was the principal owner of the property and he has squarely denied the same. He had been asked the question that no sale-deed was executed in favour of the respondent but he denied it. He of course, admitted that the disputed premises were being kept by the respondent since the death of Faqir Ali. The evidence of all these witnesses has clearly established that Ahmed All minor son of the respondent was the owner of the disputed property and that he had purchased the said property through an agreement of sale from Faqir Ali. Even P,T,I register of Excise and Taxation shows that the property has been mutated in the name of son of the respondent. It should be borne in mind that the application shows that the applicant as well as the opponent are both residing in portions of the same building and even the P. T .1. register extract shows that the disputed property is both in self-occupation of Ahmed Ali son of lkram Ali and is also rented out do not find any reasonable doubt about ownership of the disputed property. It is of course, correct that the name of owner is Ahmed AU but it has been explained that he was the minor son of lkram AU and that Ikram All had purchased the said property from Faqir All for a sum of Ra,15,000.
8. It is correct that the agreement of sale in favour of Ahmed Ali is not registered but even if the same is excluded from consideration then also the statements of the witnesses of respondent coupled with the entry of the name of the applicant's son Ahmed Ali, in the P.T.I register, as the owner, makes it reasonably clear that the applicant is the owner of the said property, more so because he is also in possession of the portion of the same. The appellant had never claimed that the respondent was his tenant in respect of the other portion of the same property.
9. As against the above set of evidence the appellant had examined himself in support of his defence but he failed to produce before the Court any document whether agreement of sale or a sale-deed which go to show that he was transferred any rights by Faqir AU in respect of this property. It would be relevant to mark that in the written statement the appellant had taken a definite position that an agreement of sale was executed in his favour but no such agreement of sale was either filed along with the written statement nor it was produced at any stage by the appellant. Therefore, the appellant was hardly able to make out any case in respect of the title to the said property nor did he create a reasonable doubt about the title of the respondent. His witness Shah Zareen had proved himself as a worthless person by saying that the appellant had never remained tenant of any person whereas the appellant had himself admitted in his cross- examination that he was tenant at Rs,40 per month of Syod Faqir AU in the said premises.
Therefore, Shah Zareen was rightly disbelieved in respect of his assertion that Gul Mehar was residing in the premises in question as the owner since very old. Moreover, Gul Mehar had submitted that he purchased property for Rs,4,500 about 17 years ago but he admitted quite squarely that he could not produce any document in evidence regarding his title nor he produced any tax receipt. In these circumstances there was hardly any doubt cast by the appellant upon title of the respondent.
10. Mr.Gul Zeman Khan had submitted that P.T.I register should not be believed as it could not be relied upon in respect of relationship of landlord and tenant. He relied upon PLD 1967 Pesh 380 where it was held that entries in Excise and Taxation Register are irrelevant in an enquiry whether relationship of landlord and tenant existed between the parties. Mr. Gul Zeman also referred to 1981 CLC 1743 which was decided by me and where I had relied upon PLD 1967 Pesh. 380 and held that record of Excise and Taxation Department was not relevant to establish a relationship of landlord and tenant but in the same case I had also observed that the record of Excise and Taxation Authority could be used for the purpose of establishing title to property.
Therefore, in the present case although the Excise and Taxation Property Register cannot be held useful in respect of establishing relationship of landlord and tenant between the appellant and respondent but still the same record can be used and has been rightly used for establishing B title of the respondent in respect of the said property and there could be no reasonable objection against the same. Once the title of the respondent in respect of the property is established beyond reasonable doubt and the appellant has failed to substantiate his title to the said property and it has been seen that he is residing in a portion of the property where the respondent with his family is also residing, therefore, the assertion of the respondent appears to be more plausible and convincing more so because it is supported by two person of locality.
11. Once the title of the appellant was established in respect of the said property beyond reasonable doubt the Rent Controller was justified in relying upon the statements of Muhammad Ali and his two witnesses in respect of relationship of landlord and tenant. The rent Controller has not exceeded in his jurisdiction in that respect and no reasonable doubt had been raised by the appellant which would have justified the Rent Controller from refusing to exercise his jurisdiction.
The Rent Controller has given his decision in respect of relationship of landlord and tenant between the parties on the basis of the statements of Muhammad All and his two witnesses and the same is not found to be wrong or incorrect.
12. The personal and bona fide need of the respondent had been established beyond any reasonable doubt by the statement of Muhammad All that his father Ikram All had a large family and Syed Maqbool All who was unmarried, his marriage was to be arranged. There was no cross- examination of Muhammad Ali on this point and therefore, bona fide need was apparent. The appeal is, therefore, found to be without merits and is hereby dismissed.
' However, in view of observation made by the Supreme Court in the above cited case I would observe that the findings of the Rent Controller as well as of this Court in respect of title to the property are of a tentative nature and in case the appellant decided to file a suit in respect of title to the property in a civil Court then these findings will not be treated as binding and the civil Court will be at liberty to decide this suit on merits on the basis of evidence led before it and the documents produced.
' Appeal is dismissed, but appellant is allowed four months to vacate the premises in question.