' This is a landlord's appeal against dismissal of his Rent Case No,261/86 for eviction of his tenant Ahmad and sub-tenant Ibrahim, from the premises in litigation.
2. Admittedly respondent No,1 Ahmed was tenant of the appellant in ground floor of residential house on Plot No,D-VIII-3S-2, Pitchard Road, Lyari Area, Karachi, on monthly rent of Rs,35.
Appellant/landlord sought eviction of the respondents on the ground of default in payment of rent since May, 1985 and on the ground of subletting.
3. Both the grounds were controverted by the respondents in their written statement. Respondent No,1 admitted that respondent No,2 was living with him in the same house as one of his family members and not as a sub-tenant, he being brother of his wife and having been adopted by him.
4. The appellant did not press the ground of default in the trial Court. The ground of sub-letting was decided against the appellant, as per the impugned order dated 19-7-1987. Hence the appeal.
5. Mr. Akbar Khan Ghori, learned counsel for the appellant argued that in para. 6 of the rent application it was stated that the respondent No,1 had sublet one of the rooms of the demised premises to the respondent No,2 without written permission or consent of the appellant and that he had been charging higher rent from the respondent No,2, who was given the possession. These facts were controverted by the respondents in para 5 of their written statement, where it was stated that the respondent No,2 was adopted by the respondent No,1 and since childhood he was living with the respondent No,1 and there was no subletting. Learned counsel for the appellant further argued that the application copy Ex-0/0 was moved to Karachi Electric Supply Corporation Ltd. For electric connection to the premises in litigation by respondent No,2 and not by the respondent No,1 and that even the receipts copies Ex.0/10 and Ex.O/11 were issued in name of the respondent No,2 and this showed that the respondent No,2 was the sub-lessee in the premises in litigation. It was further argued that in said receipts copies Ex.0/10 and Ex.O/11 name of the respondent No,2 was not written as Ibrahim son of Ahmed but it was written as Ibrahim son of Latif and as such he was not adopted at all by the respondent No,1 and he was an independent person.
It was added that if the respondent No,2 had been living in the house as member of the family, then the receipts copies Ex.0/10 and Ex.O/11 would have been in name of the respondent No,1 and not in name of the respondent No,2. Relying on sub-clause (a) of clause (iii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, learned counsel for the appellant argued that mere handing over possession of the rented premises to some other person by the tenant was sufficient to make him liable for eviction. Reliance was also placed on the case of Muhammad Yousuf Khan v. Moosa and another (1987 CLC 981) where the view taken was that mere handing over possession by tenant to another person without consent of the landlord was sufficient to make the tenant liable for eviction.
6. Mr. Qaisar Qureshi, learned counsel for the respondents argued that the words "handed over the possession" means surrender of possession, but in the instant case the respondent No,1 had not divested himself of the possession of the rented premises and as such he cannot be said to have handed over possession to the respondent No,2. It was conceded that the electricity in the rented house was in name of the respondent No,2 but it was explained that this position existed since 1972.
That since his childhood the respondent No,2 was being looked after by the respondent No,1 as his own son.
7. Sub-clause (a) of clause (iii) of subsection (2) of section 15 of the said Ordinance says that Controller shall make an order directing the tenant to put the landlord in possession of the premises if he is satisfied that the tenant has without the written consent of the landlord handed over the possession of the premises to some other person. In the case of Muhammad Yusuf Khan (1987 CLC 981) it was observed that mere handing over of possession by a tenant to another person without consent of the landlord was sufficient to make the tenant liable for eviction by the landlord. I agree with the contention raised on behalf of the respondent that the words "handed over the possession" simply transfer of possession in such a manner that the transferee diverts himself of the possession. Merely if a tenant allows somebody to stay with him in the rented premises that would not amount to his handed over possession to such other person.
8. It has not been alleged by the appellant if the respondent No,1 has given up possession of the premises in litigation. The fact that there is electric connection in the disputed premises in name of the respondent No,2 since 1972 supports contention of the respondent No,1 that he has adopted the respondent No,2, who was living with him since his childhood. In the circumstances of this case it would be irrelevant to determine whether such adoption of respondent No,2 by the respondent No,1 is legal or illegal and is Islamic or un Islamic. Over all assessment of the evidence shows, that there was no subletting of any part of the premises by the respondent No,1 to respondent No,2.
9. In view of the above discussion, I maintain the impugned order and dismiss this appeal with no order as to costs.