' This is a Second Rent Appeal filed by the appellants/tenants. Rent Case No, 756/69 was filed by the landlord/transferee from the Settlement Department on 23rd April, 1969 for ejectment of the tenant Abdul Latif on the ground of default in the payment of rent from 1962 when P. T.
0. Was issued in favour of the respondent. The ejectment application was resisted by the tenant and the main defence of the tenant was contained in para. 1 of his written statement which is reproduced here :- "That the contents of paragraph No, 1 of the application are not denied, but it is submitted that the premises in question were previously claimed to be transferred by one Jan Muhammad who filed an ejectment application against the opponent being R. C. No, 197/64 in the Court of Controller and First Civil Judge, First Class, Karachi. Said Jan Muhammad was claiming to be the transferee of both the tenements i. e. 3/2 and 3/3 but later on it transpired that he was the transferee of 3/3 only.
This confusion remained till the year 1967 when the applicant gave notice regarding the transfer of the tenement No, 3/2 to the opponent. Even thereafter the applicant was claiming that he was the transferee of 4 rooms comprised in tenements Nos. 3/2 and 3/3 and it was only recently that both the transferees were satisfied about the transfer of the respective tenements in their favour. The premises in question consists of two living rooms only."
' The assertion of the respondent/landlord was that two notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been given to the tenant Abdul Latif. First notice is, dated 15th February, 1965 (Exh. 5-C) and the second notice is dated 2nd February, 1967 (Exh. 5-D). In para. 3 of his written statement the tenant denied prior to the notice, dated 2nd February, 1967 he had received any prior notice. However, from the evidence of the son of deceased (Muhammad Yasin, page 38 of the paper book) it was admitted that respondent Nazar Hussain had given the tenant a notice in the year 1965 that he was transferee of tenement 3/2 and that the rent should be paid to him in respect of that flat.
' On behalf of the respondent no other witness was examined except respondent himself. On behalf of the tenant, Abdul Majeed son of Jan Muhammad, Abdul Sami clerk of Excise and Taxation Department and Muhammad Yasin son of Abdul Latif gave evidence. The Rent Controller by his order, dated 30th September, 1974 ordered ejectment of the tenant Abdul Latif on the ground of default. A few days after the ejectment order was passed, tenant Abdul Latif died and his legal heirs filed Rent Appeal No, 609/74. During the pendency of the appeal before the First Appellate Authority, one of the legal heirs and son of tenant Abdul Latif also died. His legal representatives were also brought on record. By order, dated 1st August, 1979 First Appeal of the tenant was dismissed by the learned Second Additional District Judge, Karachi. This Second Appeal has been filed by the tenants challenging the impugned orders of the Rent Controller and the First Appellate Authority. I have heard Mr. Khalilur Rehman, learned counsel for the appellant and Mr. Abdul Majeed Khan, learned counsel for the respondent.
2. It was urged by the learned counsel for the appellants that there was confusion about the ownership of the flat in question that is flat No, 3/2 as previously one Jan Muhammad was claiming to be the transferee of both the flats i. e. 3/2 as well as 3/3 but later on it transpired that Jan Muhammad was the transferee of tenement 3/3 only. According to the learned counsel this confusion continued till the filing of the ejectment case in April, 1967 by the respondent. It was further submitted that as late as 1st August, 1968 rent had been paid by Abdul Latif to Jan Muhammad. It was argued that in view of this confusion and on the basis of the evidence on record it had not been established that Abdul Latif tenant was a defaulter. Learned counsel relied upon a judgment of Sajjad Ahmed, J. In the case of Muhammad Sharif v. Iqbal Ahmed (1) there it was held that attending circumstances have to be considered by the Rent Controller and in case there was a doubt about the non-payment of rent, the doubt has to be resolved in favour of the tenant.
' On the other hand, according to Mr. Abdul Majeed Khan, learned counsel for the respondent, there were concurrent findings of the Rent Controller and the First Appellate Authority which were based on evidence and no case has been made out for interference with such findings.
3. In this case, as already observed, 2 notices under section 30 had been given by the respondent to the tenant, one is dated 15th February, 1965 and the other is dated 2nd February, 1967. In both these two notices respondent had clearly informed that he was the owner of tenement 3/2 and it was clearly mentioned that the premises in question had been transferred to him and number of P.
T.O. Was given in first notice and the number of P. T.O. As well as P. T. D. Were given in the second notice. Admittedly no reply was given to either of these notices by the tenants. According to tenants, there was a confusion about the ownership of the flat in question as the same was claimed by Jan Muhammad also. However, in the written statement of the tenant reproduced hereinabove, it was mentioned that "this confusion remained till the year 1967 when the applicant gave a notice regarding the transfer of tenement 3/2 to the opponent". From the written statement of the tenant it is, therefore, apparent that the confusion about the ownership stood resolved
(1) PLD 1965 Lab. 23 ' in the year 1967. As noted earlier, no reply was given by the tenant to the second notice, dated 2nd February, 1967 served by the respondent upon the tenant under section 30 of the 1958 Act. If the confusion had been cleared in 1967, after receipt of the notice, dated 2nd February, 1967 under section 30 of the 1958 Act, the tenant should have tendered rent to the respondent, which admittedly was not done. Even a reply was not given to the notice, dated 2nd February, 1967. It is the case of the appellant that even after 1967 the respondent was claiming to be the transferee of both tenements 3/2 and 3/3. This has not been established from the evidence. On the contrary, both the notices, dated 15th February, 1965 and 2nd February, 1967 under section 30 of the 1958 Act had given the number as 3/2. No claim was made by the respondent that he was the owner or transferee of tenement 3/3.
' Then it was pointed out by the learned counsel for the appellant that confusion about the ownership remained till about the time the ejectment application was filed in April, 1969 and in support of this assertion it was submitted that rent had been paid as late as 1st August, 1968 by the tenant to the other claimant Jan Muhammad. It is in the evidence that though the rent had been paid on 1st August, 1968 the rent was for the period upto 1966. There is nothing on the record to show that any rent was paid with effect from the year 1967 either to Jan Muhammad or to the respondent. If the confusion had been cleared and previously rent was being paid to Jan Muhammad, the tenant could have continued to pay rent to Jan Muhammad under the misunderstanding that Jan Muhammad was the owner. If the doubt had been cleared in 1967, the tenant should have paid rent to the respondent after he had received the second notice, dated 2nd February, 1967. For reasons best known to the tenant, he stopped paying rent with effect from 1967 to any one.
' It was also argued by the learned counsel for the appellant that in the Excise and Taxation record the premises in question were shown to be under the ownership of Jan Muhammad. However, there is an order, dated 9th April, 1966 of the Excise and Taxation Officer 'F' Division, Karachi relating to a dispute between the respondent Nazar Hussain and Jan Muhammad. After going through the record and inspecting the site, the Excise and Taxation Officer held that Jan Muhammad was the allottee of tenement 13 which was custodian No, 3/3 whereas Nazar Hussain was owner of tenement 12 which was Custodian No, 3/2 and a direction was made that such entries may be made in the Excise and Taxation Record for the purpose of payment of tax. It appears that the confusion was resolved by the order, dated 9th April, 1966 in so far as Jan Muhammad and respondent Nazar Hussain are concerned. However, learned counsel for the appellants referred to the evidence of Abdul Sami, clerk of Excise and Taxation Department, who gave evidence that after the order, dated 9th April, 1966 of the Excise and Taxation Officer, the file was put up before the Director for authentication but by order, dated 5th July, 1966 the case was remanded to the Assigning Authority "but no fixed order was passed after remand". It is further stated by Abdul Sami that general survey by the Excise and Taxation Department had been carried out in 1968 in which survey Jan Muhammad was shown as the owner of the Property No, PR.-1/3/14 and Muhammad Yasin is shown as the tenant with accommodation shown as 4 rooms. The order of the Director was not produced. In my view, whether any order was passed by the Director or not would not make any difference in this case. As observed earlier, the doubt had already been resolved in 1967 according to the tenant himself and thereafter he was duty bound under the law to tender rent to the respondent.
4. There is a concurrent finding on the question of default by the Rent Controller and the First Appellate Authority. The finding is based on evidence and no case is made out for interference in Second Appeal. Second Appeal No, 335/79 is dismissed but with no order as to cost. With the consent of Mr. Abdul Majeed Khan, Advocate time is granted till 30th June, 1984 to the appellants to vacate the premises subject to payment/ deposit of rent. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.