' Mst. Hajira widow of Abdul Samad along with three sons and one daughter of late Abdul Samad (hereinafter called the respondents Nos. 1 to 5) filed an application under section 13 of the Sind Urban Restriction Ordinance,1959 against Noor Muhammad. Mst. Noor Bano (hereinafter called the appellants Nos. 1 and 2, respectively) and Muhammad Ismail and Nooruddin (hereinafter called the respondents Nos. 6 and 7) for their eviction from House No. IV-A-488, corresponding to City Survey No. A-335, Chaki Para Tando Adam, on the ground of default in payment of rent by them, stating that house was owned by late Abdul Samad who expired on 18-2-1978, leaving behind the respondents Nos. 1 to 5 as his legal heirs and that the appellants and the respondents Nos 6 and 7 were residing in the house since before the death of late Abdul Samad. According to the averments made in the application, the rent of the house was fixed at Rs. 100 per family per month in all Rs.
400 for the whole house as per oral agreement entered into by late Abdul Samad and on the date of filing of the application Rs. 900 were outstanding against each appellant as arrears of rent till 30-10-1978.
2. Appellant No. 1 in his written statement admitted that he was residing in the house but claimed that he was residing there as owner thereof. As regards the averments as to the oral agreement for payment of rent he denied the same.
3. Appellant No. 2, in her written statement stated that she was residing with her maternal-uncle, the appellant No. 1 in his house. She further stated that the house was divided into two units bearing Nos. IV-A-488 and IV-A-488-A and that the House No. IV-A-488-A was owned by Muhammad Ismail and Nooruddin, respondents Nos. 6 and 7. She also denied that any rent was fixed or that the appellants were the tenants. Muhammad Ismail and Nooruddin the respondents Nos. 6 and 7 also filed a joint separate written statement wherein they claimed that House No. IV-A-488-A corresponding to C S No. A-335, area 1,653 square ft. was their own property and that they did not reside in House No. IV-A-488, Tando Adam.
4. On the pleadings of the parties, the Controller framed the following issues:
1. "Whether the relationship of landlord and tenant exists between the parties?
2. What should the order be?"
5. Respondents in support of their case examined Mst. Hajira, respondent No. 1 and filed the affidavits of Mohammad Ibrahim and Arif Husain, while the appellant No. 1 and Mohammad Ismail, respondent No. 6, filed their own affidavits and the affidavits of one Hafiz Mohammad Ramzan.
Appellant No. 1 inter alia produced the Compensation Book claiming that the price of the house was adjusted from it, and respondent No. 6 produced P.T.D., of House No. IV-A-488-A, the order of the Additional Settlement Commissioner, while the respondents Nos. 1 to 5 produced an extract from the property register and copies of the notices sent to the appellants and the respondent 's Nos. 6 and 7.
6. The learned Controller came to the conclusion that only the appellants were the tenants of respondents Nos. 1 to 5 and that there existed the relationship of landlord and tenant between them so far as respondents 6 and 7 were concerned the Controller found that they were residing in their own house bearing No. IV-A-488-A. His finding are as follows: "In view of the arguments of the Advocate of parties and also perusal of evidence I have come to the conclusion that the house bearing No. IV-A-488 was purchased by Abdul Samad and he was only the owner of the house and after death of the Abdul Samad the applicants have become owners of the house as this contention of the applicants is provided by documentary evidence such as extract of property register and also the evidence of P.Ws who have very clearly said that the house was purchased by Adbul Samad. It is admitted position that the opponent Nos. 1 and 4 are residing in the house in question and they have not paid the rent to the applicants as they claim share in the house but they have failed to prove their contention as their contention is not supported by any title document. The opponent No. 1 claimed that he is co-sharer in the house as the house was purchased by Abdul Samad from their common compensation book. It can be in this way that the house may be purchased by Abdul Samad from common compensation book and Abdul Samad may have paid the amount of his share in cash to the opponent No. 1 therefore, the title document does not disclose that opponent No. 1 had any share in the house in question.
The opponent No. 4 has also admitted that he is residing with opponent No. 1 in the house in question but he has failed to produce any title document for the house in his name. It is also admitted position that opponent No. 4 did not pay rent of the house to the applicants. The opponents Nos. 2 and 3 have contended that they are residing in their own house bearing No. IV-A- 488/A which is purchased by them from Settlement Department. This contention of the opponents Nos. 2 and 3 is supported and corroborated by opponent No. 1 and P.W. Hafiz Mohammad Ramzan and also by the documentary evidence such as PTD order of Settlement Commissioner and true copy of extract of property register in these circumstances."
7. I have heard Mr. Usman Ghani Rashid learned counsel for the appellants and Mr. Hatif Khudai Ansari learned Counsel for respondents 1 to 5.
8. Mr. Usman Ghani Rashid submitted that the dispute as to the title to the property is the subject matter of the Suit No. 212 of 1978, which is pending in the Court of Senior Civil Judge, Sanghar as stated by appellant No. 1 in his affidavit who further stated in paragraphs 6 and 7 of his affidavit-in- evidence that the house was purchased from the Settlement Department from the Compensation Book which was in the joint names of Abdul Samad, Abdul Salem, Abdul Qayum and his son. Mr. Rashid further submits that the question of title to the house is to be decided in the suit and the Controller, in the circumstances of the case, ought to have given the finding against the respondents and left the question of title to be decided by the Civil Court. In this regard he relied on the Supreme Court Judgment in REHMATULLAH v. ALI MUHAMMAD AND ANOTHER 1983 SCMR 1064 wherein Muhammad Afzal Zullah, J., at page 1079 of the report observed as follows: "It has already been held that when the decision of the issue regarding relationship of landlord and tenant depends solely and not only incidentally on the question of the ownership and title to the property and it will not be possible for the Controller to decide the case without deciding the basic question involved regarding title, then in such like cases it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative. It has also been observed that the requirement of the relevant law contained in the 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. 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.
The decision of main issue depends directly on the decision regarding title in the present case. The learned Rent Controller adopted the right course."
' The above observations support the submissions of Mr. Rashid and must be accepted.
9. There is yet another aspect of the case and it is that respondents Nos. 1 to 5 have failed to prove that the appellants Nos. 1 and 2 were the tenants. In this regard the allegations in the application, as already stated are that as per oral agreement with late Abdul Samad the rent was fixed at Rs.
100 per family per month which came to Rs. 900 per month for the whole premises and Rs. 900 were outstanding against the appellants and respondents Nos. 6 and 7. The appellants and respondents Nos. 6 and 7 denied that they were the tenants. On this point Mst. Hajira in her evidence has however stated that the appellants and respondents Nos. 6 and 7 were residing in the premises since before the death of her husband and her husband expired on 18-2-1978, leaving behind four children and that during lifetime of her husband the appellants used to pay Rs.100, each as rent.
10. Muhammad Ibrahim one of the witnesses on behalf of respondents Nos. 1 to 5 in his affidavit has stated that as the appellants and respondents Nos. 6 and 7 were related to the deceased Abdul Samad so he had given three rooms of his house to them on rent at the rate of Rs.100 per month from each and that the appellants and respondents Nos. 6 and 7 did not pay the rent to respondents Nos. 1 to 5 after the death of Abdul Samad. Arif Husain the other witness in his affidavit has stated that while talking to Abdul Samad he informed him that the appellants and respondents Nos. 6 and 7 were paying rent each at Rs.100 per month.
11. Respondents Nos. 1 to 5 however, did not produce any agreement of tenancy or any counterfoil of any rent receipts. Indeed in the separate notices dated 29-10-1978 served on behalf of Mst. Hajira respondent No. 1 by her counsel Mr. Sabir Husain Qidwai on the appellants and respondents and respondents Nos. 6 and 7 were the tenants. What is said in the notices is that all of them were in occupation of the house since after the death of the deceased Abdul Samad i.e. 18-2-1978. It may be convenient if one .of the notices is reproduced hereinbelow in extenso. It reads: "Sabir Hussain Qidwai Phone No. 575 B. Sc., LL. B. Qidwai House, Advocate, Legal Adviser, Tando Adam.
National Bank of Pakistan, United Bank Ltd., Tando Adam. Dated 29th October, 1978. ..(REGISTERED A/D)..
On behalf of Mst. Hajira wd/o Abdul Samad and her sons and daughter r/o Gopaldas Para, Tando Adam.
To.
1. Mr. Noor Muhammad
2. Muhammad Israil
3. Nooruddin
4. Mst. Noor Bano s/o Ramzan s/o Muhammad Ibrahim s/o Muhammad Ibrahim w/o Abdul Gafoor all residents of Chakipara, Tando adam ' Dear Sirs, ' Under the instructions and on behalf of my above-named clients I have to serve you with this notice, as under:-
(1) That house bearing Custodian No. 9-A 488 corresponding to C.S. No. A-335 has been obtained by way of irresistance from deceased Abdul Samad.
(2) That you all are in occupation of the same since after the death of deceased Abdul Samad i.e. 18-2-1978.
(3) That despite of repeated demands you have failed to vacate the said premises and you have also not paid any rent for it.
(4) That my client Mst. Hajira is a widow and has no means of earning, while she is looking after her four children. She is residing in her mother's house which is very small one and it is very difficult to live in. Hence my client wants to get the premises vacated for her personal use.
You are therefore, requested by this notice to vacate this premises within fortnight from the receipt of this notice, failing which I have positive instructions from my clients to move the machinery of law against you on your risk and cost, WHICH PLEASE NOTE Yours faithfully, (Sd.) 29-10-1978 (SAB1R HUSAIN QIDWAI), ADVOCATE"
12. This notice itself belies the evidence of Mst. Hajira and her two witnesses for in this notice it is claimed that the appellants and respondents Nos. 6 and 7 are in occupation of the house since after the death of the deceased Abdul Samad on 18-2-1978.
13. I may mention that Noor Muhammad, appellant No. 1 is the brother of deceased Abdul Samad and appellant No. 2 is the niece of the deceased Abdul Samad and they claimed in the written statements that they were residing together in the house and that the price of the house was adjusted in the compensation book jointly owned by late Abdul Samad appellant No. 1 and their two brothers.
14. Mr. Hatif Khudai Ansari conceded that the evidence as to the appellants are the tenants under an oral agreement of the tenancy, is very weak. Indeed, the learned Controller himself has found that respondents Nos. 6 and 7 who were arrayed as opponents Nos. 2 and 3 are the owners of the portion of the house separately marked as IV-A-488-A and not the tenants. This finding also belies the evidence of Mst. Hajira and her two witnesses namely, Muhammad Ibrahim and Arif Husain. It may be stated that this finding has become final for the purpose of this case, as no appeal or cross-objections have been filed against the same. Further, there is no allegation much less the evidence that the appellants ever paid any rent to the respondents Nos. 1 to 5. There is also no satisfactory evidence that the appellants paid any rent to the deceased.
' For all the reasons I hold that relationship of landlord and tenant was not established.
' I therefore, accept this appeal and set aside the impugned order but, in the circumstances of the case, leave the parties to bear their own costs.