' Appellant Syed Tausif Ahmed Zaidi is a tenant and has filed second appeal against the judgment, dated 25-10-1981 of learned Vllth Additional District Judge, Karachi, who has set aside order dated 12-9-1978 passed by the learned IVth Rent Controller, Karachi, wherein it has been held that there is no relationship of landlord and tenant between the parties and on that ground application for ejectment has been rejected.
2. Briefly stated the relevant facts giving rise to this appeal are that Mst. Naheeda Nighat daughter of lqbal Hussain claims to be the owner of structure of two rooms constructed on Plot No,B/169, Hoshan abad, Drigh Colony, Karachi, in front of quarter No,5/2136, Drigh Colony, Karachi. She further claims that Tausif Ahmed is her tenant in one of the two rooms at the rate of Rs,25 p.m. and has failed to pay rent to her from January, 1975 till the filing of application for ejectment in the month of October, 1976. She further stated in her application before the Rent Controller that she has sent a notice through Advocate to the tenant demanding payment of arrears of rent but the tenant refused to make payment. The case was contested by the tenant before the learned Rent Controller and written statement was filed wherein the tenant Tausif Ahmad stated that he was not the tenant of the landlady, whose claim was unfounded and further that he had constructed the room in question himself, of which he is owner, as such the question of payment of rent did not arise. Keeping in view the pleadings of the parties preliminary issue was framed to the effect whether there was relationship of landlord and tenant between the parties. On this issue landlady examined her attorney and father lqbal Hussain and two other witnesses namely Nasiruddin and Haffz Ateequr Rehman. As against this tenant examined his son and Attorney by name Ali Shah. The learned Rent Controller after assessing the evidence brought on the record has come to the conclusion that the evidence produced is not sufficient to prove that the landlady had put the tenant in the disputed room as a tenant at the rate of Rs,25 p.m. Learned Rent Controller has further observed that witnesses produced by the landlady were not eye-witnesses to the creation of the tenancy between the parties. With such observations ejectment application has been dismissed on the ground that the landlady has failed to discharge the burden to prove the fact under the preliminary issue. This order of the Rent Controller has been set aside in appeal by the learned Additional District Judge, who has held that sufficient evidence of reliable quality has been produced by the landlady who has examined her father lqbal Hussain and two witnesses and further five other documents were produced to show that construction on the plot in question belongs to the landlady. The learned Additional District Judge after assessment of evidence has concluded that there is no reason to disbelieve the assertion of the landlady which is otherwise established from oral evidence as well as documents. In the result the order of the Rent Controller was set aside and appeal was allowed with directions to the Rent Controller for further proceedings according to law.
3. Normally the question whether there is relationship of landlord and tenant between the parties is question of fact but in the instant case the findings of the two Courts below are in conflict with each A other, hence in the interest of justice the evidence is re-assessed again. No doubt the construction on the plot in question is unauthorized but the case of the landlady is that she is the owner of the construction and she has put Tausif Ahmad in possession of one of the two rooms as a tenant, who failed to pay the rent and is liable to be rejected. To prove her case she has produced sufficient evidence. In the application the period for non-payment of rent is mentioned and the fact is mentioned that notice was issued by the counsel to the tenant calling upon him to pay the rent but the tenant has refused to pay and sent a reply through the counsel stating therein that there was no relationship between the parties of landlord and tenant Both notices have been produced. So far the evidence is concerned the landlady being a Pardanasheen lady did not appear herself in the witness-box but examined her father lqbal Hussain who i,: also her attorney.
Iqbal Hussain has deposed before the trial Court that tenant was related to him as such there was no agreement in writing and no receipt used to be issued. Originally the plot in question was occupied by his sister Rais Fatma, who later on gifted the same to his daughter in the year 1966. He produced power of attorney Exh.A/1, photostat copy of permission from the landlady and application form for Ration Card Exhs.A/2 and A/3, notice from K.D.A. Exh.A/4, copy of challan of K.M.C. Exh.A/5, copy of notice of Advocate Exh.A/6, copy of notice of Advocate sent by the tenant in reply Exh.A/7, Malaria Card Exh.A/8, receipt of Anjuman Exh.A./9 and Tax Receipt Exh.A/10. Exh.Al2 is Ejazatnama in which permission is given by Mst. Naheeda Nighat for extension of Ration Card in the name of Syed Tausif Ahmed Zaidi for two months, who was her tenant. Exh.A/3 is application form to obtain Ration Card. This form shows that Tausif Ahmed lived in the house which is claimed by the landlady to be her property why this form was produced by the landlady Can only explain the contention that permission of landlady was required by Rationing Authorities. Exh.A/4 is notice from the Administrative Officer of K.D.A. and this is in fact show-cause notice to unauthorised occupant of the plot in question. Although specific name of the unauthorized occupant is not mentioned but there is endorsement at the bottom that the same was received by Mat. Naheeda Nighat on 21-12- 1973. Exh.A/5 is copy of challan of K.M.C. which shows name of Naheeda Nighat and number of Plot B-169. Exh.A/6 is notice to Tausif Ahmed by the landlady and Exh.A/7 is reply of tenant to the landlady denying the factum of relationship. Exh.A/8 is Malaria Card issued on 2-9-1966 in the name of the owner of the house and the name of the owner of the house is shown as Mat. Raise Begum (sister of lqbal Hussain). Exh.A/10 is again receipt for payment of Health Tax and water charges which shows that this receipt was issued in the name of lqbal Hussain on 16-7-1966. These documents show possession of plot in question with Mst. Naheeda Night and her relatives since 1966.
4. It appears that in the cross-examination of Iqbal Hussain no serious challenge was made about what he had testified and only a suggestive question was put to him that the documents produced by him did not relate to the house in question, which was denied. It was admitted by this witness in the cross-examination that landlady has not mentioned this fact in the application for ejectment that the plot in question was gifted to her by the sister of her father.
5. The next witness examined by the landlady is Nasiruddin, who is from the same neighborhood.
He has categorically stated that the plot in question and construction thereupon belongs to the landlady and Tausif Ahmed is tenant at the rate of Rs,25 p.m. He has further stated that originally about 13 years back Mst. Rais Fatima used to live in the disputed premises which was gifted to the present landlady. There is nothing in the cross-examination of this witness to suggest that he has spoken lies. He is not related to the landlady and is independent witness. He was not cross- examined on the lines that he was a false witness. Another witness examined by the landlady is Hafiz Atiqur Rehman who is also from the same neighborhood and knows both the parties. He has fully supported the case of the landlady that Tausif Ahmed is her tenant. He has further stated that both rooms were constructed by Iqbal Hussain father of landlady and previously one Mst. Rais Fatima was living in the premises which were afterwards gifted to the present landlady. There is nothing in the cross-examination of this witness to suggest that he has given false evidence. He has a shop about 80 paces away from the house in dispute. He knows both the parties.
6.Landlady has produced sufficient evidence of good quality to show that construction on the plot in question composed of two rooms belongs to her. Witnesses and the documents produced by her go a long way to prove her claim including the fact that Tausif Ahmed is her tenant. On the other hand Tausif Ahmed did not choose to come in the witness-box and examined his son Ali Shan who is his attorney. All Shah is 20 years old and has deposed before the Rent Controller that he and his father are residing in the disputed premises for the last 9-10 years and they had unauthorized occupied the premises like otheRs, They had got constructed the house over the disputed premises. Ali Shan stated in his deposition that he and his father were in occupation of the premises in question for the last 9-10 years and his deposition was recorded on 12-8-1978. As against this in it written statement filed by Tausif Ahmed Zaidi on 1-12-1976, assertion is made that he is owner of the room which is in his possession since about seven yeaRs, Ali Shah has stated in his cross-examination that his father Tausif Ahmad could not examine himself because he has gone to District Dera Ismail Khan. He has denied suggestion that his father was tenant and admitted the fact that wife of Iqbal Hussain is directly related to his father. This witness admitted signature of his father on Exh.A/3 which is application form for Ration Card and then denied it. He frankly stated that they did not possess any receipt of material purchased for construction of the disputed premises. This is all from the side of the tenant. After the landlady produced evidence, it was imperative on the tenant to produce good quality evidence in support of his contention that there was no relationship between them as landlord and tenant. He could have produced some evidence in support of his claim that he has constructed the house in question himself. No such evidence has been produced. On the contrary the tenant did not examine himself and examined his son who was hardly 20 years old at the time when his deposition was recorded and he was speaking about the things that happened about 8-9 years ago. In the circumstances for the facts and reasons stated above, I am in full agreement with the order passed by the learned Additional District Judge, Karachi which is hereby maintained and the appeal is dismissed with no order as to costs. The learned Controller is directed to conclude proceedings of this case strictly according to law and merits within two months from today.