1. ' The dispute in this appeal is amongst father and the son. The appellant Ghulam Rasool is the landlord of the premises in dispute which are in occupation of his son the opponent Abdul Aziz.
2. Present appellant has filed the application under section 15 of the Sindh Rented Premises Ordinance, 1979 for the ejectment of his son from the disputed house on the ground of default in payment of rent for the period commencing from 1st January 1975 till the date of the filing of rent application i.e, for the period of more than six years. The other grounds urged by the landlord are that the tenant had caused damage to the premises in dispute and also that the said premises were required for his personal occupation. The opponent i.e, the present respondent filed his written objections wherein he has denied the relationship of landlord and tenant and claimed that he being son of the landlord the premises in dispute were gifted to him and question for payment of rent does not arise.
3. ' The learned Rent Controller proceeded to dacided the issue of relationship of landlord and tenant first. The present applicant landlord filed his own affidavit and the affidavits of two witnesses Imamuddin and Afzal. All the three were cross-examined. The opponent also filed his affidavit and that of two other witnesses but only the opponent was cross-examined and the other witnesses were not cross-examined and as such the affidavit of only opponent himself is taken into consideration. The learned Rent Controller found that there is no relationship of landlord and tenant and dismissed the application.
4. ' I have heard Mr. Hadi Bux Soomro for the appellant, and Mr. Lal Muhammad for the respondent.
5. There is no documentary evidence produced by the appellant in support of his contention that relationship of landlord and tenant exists between the parties except his oral word as per affidavit filed by him. He has produced in evidence a notice given by the appellant to the opponent on 15-11- 1980. Receipt of this notice stands admitted. The learned counsel for the appellant has submitted that in view of the affidavit of the appellant and his two witnesses and the abovesaid notice having been served on the opponent and the fact that the appellant is admittedly owner of the premises in dispute and the opponent is in occupation thereof it should be presumed that such relationship exists between the parties. As against this Mr. Lal Muhammad, the learned counsel for the respondent has submitted that mere fact of ownership and occupation by itself would not create the relationship but some other overt act is to be proved to show the creation of such relationship.
6. He has placed reliance on the case of Haji Faqir Muhammad v. Hazratullah 1989 CLC 252 and also the case of Beejal Mal v. Punaji 1987 CLC 1134.
7. ' I have given anxious consideration to the submissions of the learned counsel and perused the record of the lower Court. The case of the present appellant is that the opponent is his son who was inducted as the tenant of the said premises on 1-10-1975 and that he paid the rent for first three months i.e, October, November and December, 1975 and thereafter he has defaulted in payment of rent. In the first instance there is nothing on the record to show that the said rent was paid by the opponent except for oral word of the appellant which fact has been denied by the opponent. In the cross-examination the appellant himself admitted that the opponent is in occupation of the said premises since the year 1965. This admission in the corns-examination by the applicant itself goes to effect the very root of the case of the applicant as there is no proof that the opponent was inducted in the said premises as tenant from 1-10-1975. Even otherwise there is no explanation as to why the appellant had waited for six years to file this application for ejectment. The two witnesses examined by the applicant claimed to be Mohalla people but they do not disclose any source of information of dealings between father and son. Both these witnesses in cross-examination have admitted that they had never gone to the opponent with applicant for claiming rent or for his induction as a tenant. It is not stated by his witnesses that they were present at the time of induction of the opponent as tenant or at the time the rent was demanded from him. In view of the above circumstances and specially the admission of the appellant that the opponent was in occupation since the year 1965. I am inclined to uphold the findings of the learned Rent Controller, that the appellant has failed to prove the relationship of landlord and tenant between the parties.
8. Mr. Lal Muhammad, the Advocate for the opponent has submitted that the premises in dispute were gifted to the opponent by the appellant and therefore he is the owner of premises and not the appellant. This issue is not open for adjudication in a matter under Sindh Rented Premises Ordinance, 1979. The parties may seek remedy before the competent Civil Court if so desired. The appeal is accordingly dismissed with no order as to costs.