1. ' The appellant is aggrieved by the order dated 21-2-1990 passed in R.,C. No,122 of 1985 by the learned First Rent Controller and Senior Civil Judge, Karachi, whereby the appellant was directed to vacate half portion of property No,F-176, Haryana Colony, Sector No,10, Orangi Town, Karachi within 120 days.
2. ' The Rent case was filed by the respondent on the ground of default in payment of rent for ten months amounting to Rs,4,000 at the rate of Rs,400 P.M. w.e.f, February, 1983 and also on the ground of personal bona fide requirements. The appellant denied relationship of landlord and tenant between the respondent and him alleging that the agreement dated 20-1-1983 on the basis of which the respondent claims to be his landlord was a forged and fabricated document and the signatures of the appellant as appearing thereon are also forged. It was contended by him that he purchased the said premises from one Sattar Shah on 4-6-1977. The respondent was his fast friend but he was instigated by others to file the case. He first tried to oust the appellant by force from the suit property, whereupon his tenants M/s. Eastern Academy Educational Society through its President, Nighat Sultana lodged F.I.R. No,191/83 under sections 448 and 506, P.P.C. At Orangi Police Station against him and now a case before A.C.M. Orangi is pending in respect thereof. The appellant has also filed a Civil Suit No,2254 of 1983 in the Court of XXVIth Civil Judge at Karachi against the respondent. Alongwith his written statement, the appellant also filed copies of F.I.R., Certificate of registration of the Society, Registration Certificate of School Site Plan as well as Tenancy Agreement between him and the said Eastern Academy Education Society. On the basis of pleadings of the parties, the learned Controller framed the following points for determination: "(1) Whether there exists relationship of landlord and tenant between the parties?
(2) What should the order be?"
3. ' Mr. Mirza Waqar Hussain, Advocate for the appellant, first of all brought to my notice agreement dated 30-1-1983, on the basis of which the respondent claims to be the landlord of the appellant.
4. This agreement is attested by two witnesses, but only one of them, namely, Ghulam Rabbani respondent's brother-in-law was produced whose evidence according to him cannot be relied upon. Neither the Notary Public, nor the stamp vendor nor any handwriting expert was examined by the respondent. Further the learned Controller grossly erred in holding that the signatures of the respondent on all the four pages of the agreement as well as on three Vakalatnamas, application dated 9-1-1989, affidavit dated 14-5-1989 and other adjournment applications were the same and that the flow, the directions, angles, distance between the words and the nature of writing of alphabets are common in all the signatures. Learned counsel tried to show with the help of magnifying glass that the signatures of the appellant as appearing on written statement and other documents are different and distinct from his signatures appearing on the agreement dated 30-1- 1983. In fact, according to the learned counsel, it was a case of no evidence at all. In support he placed reliance on PLD 1980 SC 290, 1983 SCM R 1064, 1984 CLC 2908 and PLD 1989 Kar.
5. 103.
6. ' It will be worthwhile here to refer to the agreement dated 30-1-1983. It is not a tenancy agreement simpliciter. In its recital, it is stated that the respondent jointly owned the said Plot No,F-176 with his wife and as owner he had made construction with his own money on the half of the said plot in the Western portion and that the appellant and respondent as partners established a private school known as 'Eastern Academy' in such portion and that the appellant had no right, title or interest of whatsoever nature in any of the said two plots. It will be advantageous to reproduce relevant portion from the body of the agreement as under: "(1) That the Second Party as a partner of the said school shall keep and maintain the Registers and relevant papers of the said school properly showing income and expenditures of the school such as salary of the Teachers, Rent of School premises etc.
(2) That the First Party as owner of half portion of the plot with constructions of two big rooms, bath rooms and boundary wall, in which the said school Eastern Academy was established will get Rs,400 per month towards the rent of the said school premises by the Second Week of every English Calendar Month as mutually agreed between the First Party and the Second Party.
(3) That in the Second Week of the each month the entire expenses whatsoever of the said school will be deducted from the income of the school and after deduction whatever the amount will be there, will be equally divided between the First Party and the Second Party.
(4) That the Second Party shall show all the Registers and relevant papers of the school in respect of the income and expenditures to the First Party whenever the latter desires.
(5) That the Second Party as partner shall work and also manage and supervise the said school cautiously and diligently with the directions of the First Party and shall not do any act or acts prejudicial to the interest of the said school as well as the plots owned and possessed by the First Party and the said Mrs. Mushtari Bano.
(6) That Mrs. Mushtari Bano, being the owner of the half portion of the said plot (F-176), may get the house/building constructed at any time according to her wish and will and neither the First Party nor the Second Party shall have any objection.
(7) That the Second Party shall not keep or allow any body to live in the said school premises or in the plot of the said Mrs. Mushtari Bano.
(8) That the Second Party as partner of the said school shall not become the surety of anybody.
(9) That the partnership business of running the said School 'Eastern Academy' shall continue till both the parties desire."
7. ' The perusal of the agreement reveals on one hand that a partnership between the appellant and the respondent came into existence in respect of the School business and on the other hand the said School is shown as a tenant of the respondent. The respondent has filed the present rent case for ejectment against the appellant and not against the partnership firm which was running the school and shown as such. It would be useful here to refer to the definition of tenant under the Sindh Rented Premises Ordinance which appears under section 2(j) as follows:- `Tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy, (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant."
8. ' It is clear from the definition of "tenant" that the obligation of the tenant to pay rent is the consideration for possession or occupation of the premises. It is not the case of the respondent that the appellant has continued to be in possession or occupation of the premises after the termination of his tenancy nor is he a heir of the tenant. This leaves me to a searching question as to whether the possession or occupation of the premises was held by the appellant on behalf of the respondent in order to bind himself to pay rent as consideration for the same.
9. ' The respondent has admitted in his deposition that the appellant's suit for injunction against him was filed prior to the said rent case and that the school was being run by the appellant at the time of execution of partnership agreement. He further admitted that the partnership has not been dissolved and no notice was served by him on the school demanding arrears of rent.
10. ' Mr. Ghulam Rabbani, respondent's witness has testified that the appellant had signed the agreement dated 30-1-1983 in his presence and that "at the time of execution of rent agreement there was in existence the school of opponent (appellant) on the case premises" and further that "this school as such had been running for past one year when the Rent Agreement was signed". He has shown his ignorance if the School at that time was being run by a Society or not. Appellant Muhammad Qasim in his deposition has stated that he had purchased the said premises from one Abdul Sattar in the year 1977 and thereafter additional construction was made by him at his own costs and then it was rented out to the said Eastern Academy who are running a Primary-cum- Secondary School in the premises for the last 7 years. The said Eastern Academy is a registered Association/Society duly registered with the Registrar of Societies, Karachi as per Annexures filed by him alongwith his written statement. In support he has also filed sale-deed executed by him with the said Abdul Sattar, Certificate from two Councillors of the area, recommendation certificate of M.N.A. In the name of the Society and also challan bills etc. From Excise and Taxation Department and Water Board etc. In the name of the appellant. It is pertinent to note that neither the appellant was cross-examined on these documents nor any documents were produced in rebuttal thereof.
11. However, it is for a Civil Court to decide questions relating to the title of the property. What is to be seen here is whether the learned Rent Controller was justified in law in holding that relationship of landlord and tenant existed between the appellant and the respondent.
12. ' In the circumstances of the case, I need not dilate upon the question as to the alleged forged signatures of appellant, when from the face of the respondent's own documentary evidence viz. Agreement dated 30-1-1983, it was the partnership firm namely M/s. Eastern Academy Educational Society and not the appellant to Whom the premises was let out.Even if it be assumed that the appellant's signatures were not forged, the relationship of landlord and tenant is not established between the respondent and the appellant as the agreement in unequivocal terms states that the partnership firm shall pay rent to the respondent at the rate of Rs,400 per month w.e.f, February, 1983. The definition A of "tenant" as given in section 2(j) contemplates inter alia a person who undertakes or is bound to pay rent as consideration for possession or occupation of any premises by him or by other person on his behalf. Suffice to say that the documentary as well as occular evidence adduced by the respondent demolishes his own case as to his alleged relationship with the appellant. Hence I accept the appeal with costs and set aside the order of the learned Rent I Controller.