This First Rent Appeal has been filed against the order dated 31st January, 1988 of Vth Senior Civil Judge and Rent Controller Karachi (South).
2. Brief facts of the rent case No.3782/80 are that Syed Rahim Shah filed rent case on the ground of default in payment of rent with effect from August, 1979 to 30th June, 1980 against Qasim son of Arab. In the written statement, the appellant Kassim took the plea that he purchased the property in question from. Budha Soomar and such an agreement to sale was executed between the parties on 4-7-1978, thereby he became the owner. The evidence was led before the Rent Controller by both the parties and finally the Rent Controller decided the rent case in favour of the respondent Syed Rahim Shah and allowed the rent application.
3. I have heard Mr. Ismail Padhiar for the appellant. It is argued that appellant is the owner of the property by agreement and is not entitled to pay the rent. It is argued that rent application is not maintainable. He has referred to the cases reported in P.L.D. 1985 S.C. Page 1 and 1985 C.L.C. 1997.
Mr. Mirza Abdul Rashid, Advocate for the respondent, argued that Syed Rahim Shah purchased the property by registered sale deed, dated 11th August, 1979 and he gave notice to the appellant about the change of ownership. He submitted that Budha Soomar in the written statement of Suit No. 323/1980 disputed the agreement to sale.
He has referred to the cases reported in 1985 S.C.M.R. 1584 and submitted that respondent has got the right to receive the rent as he is the owner.
Syed Rahim Shah in his evidence has stated that he is the Landlord of the premises No.L.R. 8/38, Lotus Street, Off Nishtar Road, Karachi as he purchased the premises from Budha Soomar vide sale deed registered on 11-8--1979. Thereby the mutation has been effected in his name in the record of rights. A copy of the same was produced as marked `A'. He gave notice under section 18 of the Sind Rented Premises Ordinance, 1979 on 5-12-1979. He produced copy of notice as marked `B' and stated that appellant is a tenant in respect of tentamen No.12 of the premises at the rate of Rs.10.00 per month. Appellant Kassim in his evidence stated that prior to 4-7-1978, he was tenant of one Budha Soomar in respect of portion Nos. 9, 11 and 12 but tenancy was terminated vide agreement dated 4-7-1978, whereby previous tenant agreed to sale the said premises for consideration of Rs.60,000 out of which he paid Rs.46,900. He has stated that he filed civil suit No.323/80 for specific performance against Budha Soomar in the High Court of Sind before the institution of this rent case. Noor Muhammad, attesting with agreement dated 4-7-1978 filed affidavit-in-evidence but did not appear for cross. Essa son of Swaley Mohammad (Exh.7) stated that in his presence agreement to sale was signed by Budha Soomar and Kassim.
Budha Soomar was also examined and his evidence is Exh.8. He stated that he executed an agreement of sale with Kassim Arab (Exh.6-A), which bears his signature and he received Rs.43,900 .Towards consideration of Rs.60,000 and the appellant was not paying the rent afterwards. He stated that he agreed to sale 3 tenements bearing Nos.3, 4 and 5 to respondent Rahim Shah and executed another agreement to sale with him for tenements Nos.1 and 2. He first came to know about the entire compound and he filed civil suit for cancellation of sale deed. He has stated that appellant also filed civil suit No.323/80 against him for performance of agreement to sell. He produced copy of plaint of civil suit No.323/80 Budha Soomar v. Rahim Shah (Exh:8-A). In cross- examination he produced certified copy of written statement in Suit No.323/80 as Exh:18-D, but he denied the contents and verification on oath. Budha Soomar in the written statement of civil suit No.323/80 filed by Kassim, clearly stated that did not enter into agreement to sale with Kassim and his signature was fraudulently obtained in March, 1980. The certified copy of the written statement as stated above is as Exh:8-D. Both the suits are pending and there is no stay. In case of Province of Punjab through Education Secretary and others v. Mufti Abdul Ghani reported in PLD 1985 S.C page 1, it has been held, that when a person is relying on opening part of definition of landlord he will have to satisfy the Rent Controller about the title. In case of Gul Maher v. Syed Ikram A.I reported in 1985 S.C.M.R. 1584, it has been held that the Rent Controller on the basis of evidence was satisfied about the relationship between the parties on record, the order was maintained. In this appeal, the Rent Controller has gone through the evidence and discussed in detail. Presently the respondent Syed Rahim Shah by virtue of a registered sale agreement is entitled to receive all the benefits including the rent. He sent notice to the appellant, which was not replied. I do not like to enter into the controversy between the parties and the facts of the civil suits pending between them in the Courts, but at this stage the record has also been mutuated in the name of Rahim Shah. The Rent Controller has rightly come to the conclusion that there exists relationship between the parties as legal requirements have been complied with. It is an admitted position that appellant has neither paid or tendered the rent for the disputed period, therefore, he has committed default. In the circumstances, the appeal, having no merit, is dismissed.
M.Y.H./K-151/K Appeal dismissed