1. ' This appeal is directed against the order of XVIth Rent Controller Karachi, dated 15-2-1982 whereby the appellant was directed to hand over the portion of Plot No, 19/10 in Traders Co-operative Housing Society to the respondent.
2. ' The Property No, 19/10 consists of a ground floor which is divided in two equal portions where two tenants used to live. Jamil Ahmad was the tenant of the other portion. One Moinuddin was the owner of this building before it was purchased by the present respondent in the year 1979 for a sum of Rs, 2,00,000. On 29-12-1979 the respondent filed an application both against the present appellant as well as against the other tenant, Mr. Jamil Ahmad seeking their ejectment on the ground of personal need. The application was resisted by the appellant and Jamil Ahmad on the ground that they had a right of pre-emption in respect of this property and that there was a perpetual lease created by the previous owner in their favour. There was only one issue framed about the personal need of the landlord. Six affidavits were filed on behalf of respondent. Two were by her sons. Sohail and Shahid and one by her husband and Attorney Ikram Elahi. Three relations namely, Soba Sadiq, Shaikh Muhammad Bashir and one Ehsan Elahi supported the case of the respondent for her personal need and they were duly cross-examined. In rebuttal Mehtab-ur- Rehman 'appellant and his two sons Muhammad Yahya and Akhtar Jamal filed their affidavits.
3. They had alleged a right of pre-emption and in para. 20 Mehtab-urRehman had stated that Mst.
4. Sarwar Begum had no right to demand eviction on the pretention of personal need and that she was sham-person and mercenary of Mr. Moinuddin. It was also alleged that Mehtab was a tenant in perpetuity. The Rent Controller believed the evidence of the respondent and directed that the appellant should hand over vacant possession within 120 days.
5. ' The appellant has felt aggrieved against the order of ejectment. The main contention of Mr. Faizuddin learned counsel for the appellant is that there was no evidence on record justifying the ejectment of the appellant because the respondent had failed to establish that she had a genuine need in respect of two portions of the bungalow in question. He submitted that the other tenant Jamil Ahmed had been ejected and therefore, the need of the respondent had been fulfilled. He pointed out that the respondent had stated through her son Sohail that they were living in a rented premises of only 1-1/2 room and therefore, once they had secured the 1/2 portion of the present Bungalow the same should have sufficed for their needs. In this respect it would be pertinent to take into consideration the members of the family of the respondent. It is admitted position that the respondent has a husband and they have 7 children out of whom two sons and two daughters are adults while the other three children are of growing age. The evidence of Ikram Illahi shows that there are a total of 6 rooms in the entire premises on the ground floor. Considering that the respondent has a big family of 9 members, it appears that she needs the entire ground floor. One room has to be assigned to the respondent and her husband, while every one of the grown up children would reasonably require a room for themselves and thus it would need the occupation of five rooms. The other three children could be accommodated in the other room. Apart from that there is no evidence on the side of the appellant controverting the need of the respondent in respect of the entire ground floor bungalow which consists of two premises. The appellant has merely contended himself by taking shelter behind the right of pre-emption and the right of perpetual lease and has in fact merely dismissed the claim of the respondent by taking up the position that she was a mere mercenary of the previous landlord Moinuddin. I do not understand in what manner the position of respondent could be taken to be a mercenary of Moinuddin. She has purchased the property in question by registered Sale-Deed and is shown to have paid a consideration of Rs,2,00,000 for the same and her husband Ikram Illahi was cross-examined by the appellant's counsel but he has stood the test of cross-examination and therefore, it is beyond doubt that the respondent is the owner of the property. Matter of pre-emption has no legs to stand as appellant's counsel did not show any such right, nor the appellant had filed any suit in that regard.
6. The learned counsel for the appellant has not been able to show as to why Mst. Sarwar Begum should not be allowed to occupy a bungalow which she has purchased for her own needs and she has proved that she has a large family of 9 membeRs, Even if it was contended that a family of 9 members should not be allowed to occupy 6 rooms because that would mean a very comfortable and ostentatious style, the same would not be a ground for defeating the claim of the respondent as the genuine and bona fide needs of the respondent have to be determined in the circumstances of each case. In this case it is on record that the respondent's husband is a businessm an and it is also on record that one son of the respondent is doing independent business of paper merchant and considering these factors it cannot be said that the respondent is showing inclination of ostentatious living by claiming the whole bungalow for her whole family.
7. Consequently this plea of the appellant fails. The learned counsel for the appellant then contended that since the appellant had been living in the premises for 17 years therefore, the appellant had an oral perpetual lease in respect of this bungalow. I do not find any justification for his submission because appellant had admitted in cross-examination that there was n agreement of tenancy executed between him and Moinuddin and he has further admitted that he used to pay rent to the said landlord every month and that there was no agreement of sale between the appellant and Moinuddin. Of course the appellant had stated in his cross-examination that he had agreed to pay monthly rent of Rs,225 to B Moinuddin into perpetuity but their being no specific proof in this regard and the appellant having admitted to have paid monthly rent to Mr. Moinuddin only a relationship of monthly tenancy was established between him and Moinuddin and therefore, I do not find it proved on record that there was any perpetual tenancy created in favour of th appellant by the previous landlord. Mere factum of a monthly tenant continuing in the premises for 15 or 17 years does not establish perpetual tenancy. If the appellant had examined Moinuddin the previous landlord in this respect and Moinuddin had proved a perpetual tenancy then the appellant could have had any justification for making such a claim subject to the provisions of Transfer of Property Act and Registration Act. Consequently I find that the perpetual tenancy claim is unfounded.
8. Thereafter Mr. Faizuddin submitted that the Rent Controller who. Decided the case had no jurisdiction in this matter. I fail to understand the logic of this argument. No such plea had been raised by the appellant before the Rent Controller and no such plea has been raised in this appeal and therefore, I do not find any justification for allowing this argument at this stage. The same would otherwise be misconceived as the Rent Controller who decided this case was a Civil Judge functioning at Karachi. In any case the question, whether the Rent Controller who was seized of a matter, had been invested with such power by the Government under section 4 is always a question of fact which has to be pleaded and controverted and no decision can be given without pleading of the same as it involves an investigation into question of fact. This plea is, therefore, completely unjustified and afterthought merely to avoid the effect of the ejectment more particularly so when the ejectment of the other tenant Jamil Ahmad has been upheld by the Supreme Court of Pakistan in C.P.S.L.A. No, 8-K of 1984 decided on 2-2-1984. Consequently I do not find any force in this appeal which is hereby dismissed. However, I would allow 4 months time to the appellant to make an alternate arrangements for his accommodation subject to the condition that he continues to deposit the rent in Court. Appeal is disposed of.