1. ' Appellant Anwar All has challenged dismissal of his Rent Case No.48/86 ordered by the Second Senior Civil Judge and Rent Controller, Sukkur under the judgment dated 23-8-1987.
2. ' The said rent case was filed by the appellant for eviction of the respondent from the disputed property bearing C.S. No. B-1670 Dhora Lane, Rohri.
3. ' According to the rent case, the respondent was tenant of the appellant in a room of disputed property. It was added that the respondent had paid rent for the room in his possession till December, 1984. Subsequently respondent stopped paying rent as alleged. Other grounds urged for eviction were that the appellant required the demised premises for the personal bona, fide use and that he wanted to demolish the entire structure and reconstruct another building.
2. The rent case was opposed by the respondent, who in his written statement took plea that title to the disputed property was under litigation in F.C. Suit No.16/1985. Respondent denied the tenancy and also denied having paid any rent to the appellant. Respondent claimed being in possession of the disputed premises since 1952.
4. ' After allowing the parties to lead evidence, learned trial Court under the impugned judgment dismissed the rent application after holding that no relationship of landlord and tenant existed between the parties. No findings were given on the point whether the respondent was a defaulter and whether the appellant required the premises bona fidely. Hence this appeal.
5. ' Mr. A.M. Mobeen Khan, learned counsel for the appellant argued that the respondent had become statutory tenant of the appellant on 12-7-1975 when the disputed property was transferred to the appellant. It was conceded that there was no written agreement between the parties and that no notice of any sort was issued to the respondent informing him of the transfer in favour of the appellant or demanding from him the rent. Explanation for non-issue of notice under section 30 of Displaced Persons (C & R) Act was that said Act ceased to exist on 1-7-1974. Learned counsel contended that rent was paid till December, 1984 but conceded that no rent receipts were issued. It was further argued that rate of rent of the premises was mutually settled between the parties at Rs,40 per month and no rent was paid by the respondent for the period from 1-1-1985 and as such rent case was filed on 27-3-1986. It was further argued that for creation of relationship of landlord and tenant no argeement in writing was necsessary as held in the case of Mst.Fatima (1986 CLC 1613). It was further argued that even if the respondent occupied the premises in dispute as tenant of the Settlement Department, on transfer of the property to the appellant, the appellant came in the footsteps of Settlement Department and he became landlord of the respondent. It was further argued that direction to the appellant to go to the Civil Court was unwarranted because if the appellant had moved Civil Court the respondent could have taken the plea that he was tenant and as such the Civil Court could not order his eviction. Learned counsel for the appellant also referred to section 4 of West Pakistan General Clauses Act for the proposition that section 30 of Displaced Persons (C & R) Act gave him right to be treated as landlord of the respondent and such right continued even after repeal of Displaced Persons (C & R) Act. In support of his case learned counsel for the appellant cited the cases of:-
(i) Mst. Fatima v. Mst. Hanifa (1986 CLC 1613).
(ii) Walumal'v. Muhammad Moosa (1986 CLC 1881).
(iii) Hakim Moazzamuddin Baqai v. Abdul Hussain Tahir All and others (1989 CLC 722).
(iv) Muhammad Yaqub v. Sirajuddin (1989 SCMR 196).
(v) Mst. Chiragh Bibi v. Mst. Rahim Bibi (PLD 1964 Lahore 136).
(vi) Khuda Bakhsh v. Muhammad Yaqoob (1981 SCMR 179).
(vii) Muhammad Bachal v. Dy. Rch. Commr., Hyderabad and others (PLD 1962 Karachi 889).
6. ' Mr. Gianchand, learned counsel for the respondent defended the impugned order and argued that respondent was not issued by the appellant any notice either under section 13-A of West Pakistan Urban Rent Restriction Ordinance or under section 18 of Sindh Rented Premises Ordinance and that there was no relationship of landlord and tenant between the parties. It was further argued that the onus was on the appellant to prove that relationship of landlord and tenant existed between him and the respondent and that the appellant had failed to discharge such onus. It was added that the appellant had obtained transfer of the disputed property fraudulently. In support learned counsel for the respondent cited the cases of:-
(i) Haji Faqir Muhammad v. Hazratullah (1989 CLC 252).
(ii) Bahadur Ali v. Raja Fazal Hussain (1990 CLC 1529).
(iii) Mst. Mariam Fernandes v. State Life Insurance Corporation of Pakistan (PLD 1981 Karachi 591).
(iv) Mrs. Zahra Ali Muhammad v. Pirhai Shia Asna Ashri Jamaat Regd. (1987 CLC 1938).
(v) Mrs. Zulekha v. Mriza Fazal Karim (1987 CLC 695).
(vi) Muhammad Ismail Khan v. Khurahid Bibi (1983 CLC 3267).
(vii) Mst. Razia Butt v. Ghulam Raza (PLD 1979 Quetta 157).
(viii) Naimuddin v. Ziauddin (PLD 1984 Karachi 441).
7. Section 30 of the Displaced Persons (C & -R) Act gave protection to occupants of evacuee houses and shops, who were deemed to be tenants of the transferees on the same terms and conditions as to payment of rent or otherwise on which the premises were held by them immediately before the transfer. In the instant case the contention of the appellant was that on transfer of the disputed property to him on 12-7-1975 the respondent became his statutory tenant by operation of law because the respondent was admittedly in possession of the disputed premises since before 12-7- 1975. Clause (b) of subsection (1) of section 30 enjoins upon the transferee to give notice of the transfer to the statutory tenant within one month of such transfer by registered post A.D. The statutory tenant is protected from being ejected from a house or a shop for a period of six years from the date of receiving the notice of transfer. The penalty for non-issue of the notice of transfer and notice of demand of rent is that the tenant cannot be ejected on the ground of alleged non- payment of rent. In the instant case no notice as provided by section 30 of said Act has been given by the appellant to the respondent as conceded by learned counsel for the appellant who argued that the appellant was not required to send such notice to the respondent because the Displaced Persons (C & R) Act including its section 30 was repealed on 1-7-1974. If section 30 of said Act did not exist on the statute book on 12-7-1975, then the appellant cannot contend that on transfer of property to him the respondent who was occupying the property became his statutory tenant. In this respect contention of learned counsel for the appellant that section 4 of General Clauses Act would be available to the appellant, is misconceived and so also his reference to the case of Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad and others (PLD 1962 Karachi 889). In the cited case it was held that when a law is repealed the repeal shall not affect any right or liability or privilege acquired or accrued or affect any legal remedy or proceedings in respect of such right or privilege and such legal remedy or proceeding may be continued or enforced as if the law had not been repealed. In present case Displaced Persons (C & R) Act was repealed before transfer of the disputed property to the appellant. As such at the time of repeal of said Act no right accrued in favour of the appellant as at that time the transfer in his favour had not yet taken place. Mere fact that the appellant had applied for transfer of the disputed premises before repeal of said Act, would not mean that any right accrued to the appellant in respect of the said property, which was yet to be transferred to him. For these reasons neither section 4 of the West Pakistan General Clauses Act would apply, nor the cited case.
8. The onus to prove relationship of landlord and tenant between the parties lies on the party which would suffer if such relationship is not established. Similar view was taken in the case of Haji Faqir Muhammad (1989 CLC 252), which put burden of proof on the landlord to porve such relationship.
9. In the present case the appellant in support of his case filed affidavit of his attorney Ahsan Ali and of one Ansar Hussain. Ahsan All Ex. 18 admitted in cross-examination that there was no agreement in writing about the tenancy and that receipts were not issued for receipt of rent. Neither in the rent application nor in the affidavits of Ahsan Ali and Ansar Hussain there is any assertion to the effect that there was any oral agreement of rent between the parties and as such stand cannot be taken at the stage of arguments. The only evidence that has been given by Ahsan Ali Ex.18 and Ansar Hussain Ex.19 was that the appellant was owner of the disputed premises in which the respondent was tenant in a room on monthly rent of Rs,40. There is nothing to show as to who had fixed this rent of Rs,40 per month. In the absence of evidence about any oral or written agreement of tenency between the parties it can be said that the appellant failed to establish on record, that the respondent was his tenant in the disputed premises.
10. ' The authorities cited by learned counsel for the appellant do not further his case. In the case of Mst. Fatima (1986 CLC 1613) the view taken was that section 5 of the Sindh Rented Premises Ordinance does not provide that if the agreement of tenancy is not in accordance with section 5 it will be a nullity in law. There is no agreement of tenancy in the instant case and cited case does not apply. In the case of Walumal (1986 CLC 1831) the view taken was that service of notice under section 30 of Displaced Persons (C & R) Act, would no more be necessary when said Act had been repealed in 1974. In cited case evacuee share was transferred to the landlord in 1965 and he had issued notice to the occupant under section 30 of the said Act. In the case of Hakim Moazzamuddin Baqai (1989 CLC 722) the view taken was that if certain property was evacuee and subseqently it was transferred to any other person then the person in possession of that property would become tenant of the transferee on the terms mentioned in section 30 of the said Act. In the cited case the disputed premises were handed over by the landlord to the tenants in pursuance of a tenancy agreement. This was not the position in this case. In the case of Muhammad Yaqoob (1989 SCMR 196) there was civil suit filed by the transferee against the occupant challenging the transfer of property to the occupant under exchange deed which was void. In such case it was held, that the transferee could not seek relief of possession against the occupant from a civil Court. In the case of Mst. Chiragh Bibi (PLD 1964 Lahore 136) the view taken was that the person in unauthorized but undisputed occupation of evacuee house since before 21-12-1958 was deemed to be tenant of the transferee by operation of law. This was based on the provisions contained by section 30 of said Act. In the case of Khuda Bakhsh (1981 SCMR 179) it was held that reason for a notice under seciton 13-A of West Pakistan Urban Rent Restriction Ordinance is to inform the tenant that the property has been sold to another person so that the rent could be paid to the new landlord but where knowledge of the transfer was admitted by the tenant, non-issue of notice under section 13-A of said Ordinance would not stand in way of the Court for granting the relief of eviction. In the present case the respondent has not admitted if he had knowledge about transfer of the disputed premises in favour of the appellant.
11. ' On the other side in the cases of Mrs. Mariam Fernandes (PLD 1981 Karachi 591), Mrs. Zulekha (1987 CLC 695) and Muhammad Ismail Khan (1983 CLC 3267) the landlords were non-suited for failure to send notice to their tenants under section 13-A of the West Pakistan Urban Rent Restriction Ordinance. In case of Mrs. Zahra Ali Muhammad (1987 CLC 1938) the view taken was that in absence of notice under section 18 of Sindh Rented Premises Ordinance the tenant would not be deemed to have committed default in payment of rent. In.The case of Bahadur Ali (1990 CLC 1529) the view taken was that mere title of ownership would not prove relationship of landlord and tenant unless there was tangible evidence that such relationship was established by an agreement or by operation of law.
12. In view of aforesaid discussion it appears that the trial Court has arrived at the right conclusion about the absence of relationship of landlord and tenant between the parties. Consequently I maintain order of the Court below and dismiss this appeal with no order as to costs.