1. ' Appellant Dr. Quraishul Mujtaba Qarni has challenged his eviction from the quarters in litigation bearing Nos. 1129 and 1130 in Block-8, Azizabad, Federal 'B' Area, Karachi, ordered on 30-8-1987 by Vith Senior Civil Judge and Rent Controller, Karachi, West in Rent Case No,2984 of 1985.
2. ' Rent Case No, 2984 of 1985 was filed by respondent S. Usman Ali under section 15 of Sindh Rented Premises Ordinance (hereafter menlioned as the Ordinance) for eviction of the appellant from the quarters in litigation on the grounds (i) that the appellant had stopped paying rent since September 1970, (ii) that the appellant had sublet the quarters in litigation, (iii) that the appellant had altered structure of the disputed quarters and had adversely affected their material value and utility by unauthorized and unlawful acts and (iv) that the appellant had changed use of the said quarters from residential to commercial. Respondent claimed to have sent a legal notice to the appellant to pay arrears of rent and vacate the quarters in litigation. The notice was not responded. Hence the rent case.
3. ' The rent application was contested by the appellant who in his written statement claimed being owner of the premises in litigation and denied being tenant of the respondent. Appellant claimed to have got possession of the disputed premises from Mst. Qudsia Begum in 1962 and in 1966 and in 1967. While admitting to be in possession of the premises in litigation, the appellant neither admitted nor denied the agreements dated 20-10-1962 and 22-8-1966 by which he was said to have been let out the premises in litigation on rent of Rs,250 p.m. Appellant admitted that in the year 1969 he had altered structure of the disputed premises. This according to him was without, any resentment or protest from the respondent who took no legal action and allowed the appellant to use the disputed premises as per his free will. Withholding of rent from 1970 was denied and yet it was pleaded that the appellant was not liable to pay rent to the respondent.
4. ' After recording evidence of the parties, learned Rent Controller under the impugned judgment dated 30-8-1987 found relationship of landlord and tenant existing between the parties.
5. Accordingly he accepted the ejectment application and ordered eviction of the appellant from the premises in litigation, after holding that the appellant had failed to pay rent to the respondent from September 1970 and had used the premises for commercial purposes and had altered structure of the same and had adversely affected material, value and utility thereof. Hence this appeal.
6. ' Mr. Munib Ahmed Khan, learned counsel for the appellant argued that the appellant had purchased the premises in litigation from Mst. Qudsia Begum, who being an Indian National avoided execution of any document of sale. It was next argued that the appellant got possession of the premises in litigation in the year 1962 and in 1966 and hence the application for his eviction moved on 2-10-1985 was time-barred in view of Article 139 of the Limitation Act. Appellant was said to have purchased the property in litigation in 1967 under an oral transaction for Rs,50,000 out of which Rs,45,000 were paid without execution of any receipt by Mst. Qudsia Begum. Learned counsel for the appellant further argued that it was within the knowledge of Mst. Qudsia Begum that the appellant had made alterations in the premises in litigation and had sublet the same yet she did not resent this or take any action against him because she had sold the premises. Deed about confirmation of gift Exh.A/2 was challenged to be a forged document on the grounds that it was not registered, that gift tax was not paid and that it was silent about the place from where its stamp paper was purchased. It was added that Forms PT-1 ExhA/3 and Exh. A/4 did not show if the property in litigation was transferred to the respondent by way of gift and its possession was never transferred from the appellant to the respondent and as such there could be no valid gift. In support learned counsel cited the cases of:-
(1) Hajra Bai v. Azmatullah (1988 SCM R 679)
(ii) Mst. Safia Bai v. Abdul Sattar (PLD 1983 Kar. 419)
(iii) M/s. Mehran Shoes v. Muhammad Ismail and others (1987 CLC 148)
(iv) Ghulam Murtaza v. Muhammad Yasin and another (1986 CLC 1577)
(v) Ghulam Yasin v. Muhammad Jahangir 1983 CLC 2498)
(vi) Wali Muhammad v. Shabbir Ahmed (1980 CLC 835)
(vii) Jehangrcz v. Faizullah Khan and others (1974 SCM R 45)
(viii) Fawwad and Fareen Enterprise Limited v. Director of Industries, Government of Sindh, Karachi and others (PLD 1983 Kar. 340)
(ix) Ahmadur Rahman Chowdhury and others v. Sree Sree Shambhu Nath and others (PLD 1968 Dacca 701)
(x) Muhammad Idrees and another v. Mst. Saeeda Amin and another (1986 M LD 1302)
7. ' Mr. S.A. Majed, learned counsel for the respondent argued that quarters in question were verbally gifted by Mst. Qudsia Begum to the respondent on 4-8-1965 and such mutation in the record took place on 31-12-1966 and hence registration of the gift was not necessary. It was added that the document Exh.A/2, being about confirmation of a past transaction of gift did not require registration. It was further argued that Mst. Qudsia Begum had filed Rent Case No,206 of 1964 against Ibrahim in respect of Quarter No,1129 through Siraj and such case was accepted and ultimately possession of Quarter No,1129 was given to the respondent on 20-8-1966. Learned counsel for the respondent admitted that no notice under Section 18 of the Ordinance was given to the appellant, because the rent was being paid to the respondent after gift of the property in his favour. Replying to the point of limitation raised by the learned counsel for the appellant, learned counsel for the respondent argued that in the written statement neither the limitation point was raised nor the plea about purchase of the disputed premises was raised, and hence raising of such pleas was afterthought. In respect of Article 139 of Limitation Act it was argued on behalf of the respondent that said Article covered suits and not rent cases. It was further argued that the appellant had entered the premises in litigation as a tenant and as such he was not competent to raise the plea of adverse possession in view of Article 115 of Qanun-e-Shahadat. In respect of physical possession of the premises in litigation it was conceded that the same continued to remain with the appellant and in the circumstances constructive possession of the quarters in litigation was said to have been given to the donee respondent S. Usman All Kazmi. In support learned counsel for the respondent cited the cases of:
(i) Maula Bakhsh etc v. Custodian of Evacuee Property etc. (PLD 1991 SC 668)
(ii) M/s. Consolidate Exports Ltd. v. M/s. Haji Abdul Razak and Co. (1991 M LD 1308)
(iii) Habib Ahmed v. Muhammad Siddiq Mazhari through his L.Rs, (1990 Annual Law Digest 228)
(iv) Hakim All v. Muhammad Salim and another (1992 SCM R 46)
(v) Government of West Pakistan through Collector, Bahawalpur v. Haji Muhammad (PLD 1976 SC 469)
(vi) Malik Abdul Qayyum v. Additional District Judge, Attock and others (1989 SCM R 1768)
(vii) Allah Yar and others v. Additional District Judge and others (1984 SCM R 741)
(viii) Parvaiz Akhtar v. Dr. Muhammad Ahsan and others (PLD 1988 SC 734)
(ix) Muhammad [shag v. S. Khurshid Alam (PLD 1989 SC 353)
(x) Shahriyar Ali Patudi and others v. M/s. Dccora Furnishers (PLD 1985 Kar. 47).
8. ' In Para 1 of his written statement the appellant admitted that the property in litigation was owned by Mst. Qudsia Begum from whom he got possession in 1962 and in 1966. In his affidavit in evidence the appellant stated that the property in litigation was owned by Mst. Qudsia Begum from whom he got possession in 1962 and in 1966. Appellant admitted that he remained tenant of the houses in litigation till 22-8-1967 and thereafter the tenancy was determined. He asserted his claim of having entered into an agreement of purchase of the property in litigation from Mst. Qudsia Begum for Rs, 50,000. In his cross examination the appellant admitted that he took Quarter No,1130/8 from Muhammad Sirajuddin attorney of Mst. Qudsia Begum on rent, by an agreement dated 20-10-1962 and that he took Quarter No,1129/8 from the respondent on rent. After having taken the premises on rent it does not lie in mouth of the appellant to deny the tenancy. In this respect learned counsel for the respondent relied on Article 115 of Qanun-e-Shahadat where it is laid down that no tenant of immovable property shall during the continuance of the tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such property. In the case of Malik Abdul Qayyum (1989 SCM R 1768), a tenant when questioned to state his defence against landlord's claim for his ejectment, stated that he being unauthorised occupant could not be ejected by recourse to the Rent Controller. It was held that such plea on its face is based on illegality and borders on immoral claim for undeserved gain. In the case of Allah Yar and. Others (1984 SCM R 741), one of the tenants against whom eviction application was filed raised plea that he had entered into an agreement to purchase the property in litigation from the previous owner through a receipt of payment of earnest amount and was entitled to retain possession and to deny relationship of landlord and tenant. In said case purchase of the property in litigation by the landlords through registered deed was not denied and it was held that the tenants were not entitled to retain the possession in any other capacity than as tenants of the purchasers. It was also held that a decision in the hicrarchy of forums under the West Pakistan Urban Rent Restriction Ordinance shall not bar adjudication of civil suit already filed by the tenants for specific performance of an agreement of sale. It was further held that the tenants/occupants had no right to retain the possession after the eviction orders had been passed in duly constituted proceedings under a special law. In the case of Parvaiz Akhtar (PLD 1988 SC 734), it was held that validity or invalidity of a gift of a property in litigation by a landlord in favour of his sons cannot be questioned by a tenant who was an outsider and who had no locus standi to call in question validity of such gift. In the case of Muhammad Ishaq (PLD 1989 SC 353), it was held that once the property is transferred by registered gift deed the donee becomes the owner of the property and entitled as an owner thereof to receive the rent in accordance with Section 55 (6) (a) of Transfer of Property Act and he becomes "landlord" of the property within the meaning of Section 2 (f) of the Sindh Rented Premises Ordinance and in such a situation tenant of the donor cannot question validity of the gift in favour of the donee. In said case the tenant had admitted being tenant of the premises in litigation as is the position in the present case. In the case of Shariyar Ali Patudi and three others (PLD 1985 Kar. 47), the view taken was that a tenant cannot challenge that the landlords were not in possession of the property in litigation and therefore gift in their favour was invalid. It was held that such stand on part of the tenant challenging title of the landlord would amount to a contumacious conduct. In view of the observations made in the cited cases the appellant has no locus standi to challenge gift in favour of the respondent even if such gift may not be legally correct.
9. ' The appellant took stand in para 1 of his written statement and in para 5 of his affidavit that he had remained in undisturbed and peaceful possession of the houses in litigation from more than 12 years and as such he had acquired ownership of the same through adverse possession as no rent was paid for the said premises since August 1967. In this respect learned counsel for the appellant referred to Article 09 of the Limitation Act which fixes period of 12 years for filing of suit by a landlord against his tenant for possession. Such period of 12 years is to run from the time when the tenancy is determined. In the present case there is nothing on record to show that the tenancy has determined, and if so from what date. Moreovcr.As rightly argued on behalf of the respondent Article 139 of the Limitation Act has fixed period of limitation for filing a suit and not for filing an application for eviction under the Sindh Rented Premises Ordinance which is a special statute.
10. Learned counsel for the appellant relied on the case of Jhangraz v. Faizullah Khan and others (1974 SCM R 45) which was a judgment in a Civil Appeal. It was held in said case that where possession of the defendants was found to be permissive, Article 142 or Article 144 of Limitation Act ceased to have application and the suit for ejectment was to be governed by Article 139 of Limitation Act. In the present case no doubt possession of the appellant was permissive being tenant of Mst. Qudsia Bcgum but Article 139 of the Limitation Act does not come to the rescue of the appellant even if such Article is held to apply to rent cases. In the case of Maula Bakhsh (PLD 1991 SC 668) it was held that possession commencing under authority of the Collector, in pursuance of Section 71 of the Land Revenue Act does not transform into hostile one and ripen into title by mere length of occupation. This does not help any side. In the case of M/s. Consolidated Exports Ltd. (1991 M LD 1308), the view taken was that a tenant who could not have got possession of the premises, but for his contract of tenancy, admitting the right of the landlord, should not be allowed to place his landlord in some inequitable situation by taking undue advantage of the possession that he got and probable defect in the title of his landlord. In the case of Habib Ahmed (1990 ALD 228), a tenant did not recognize the respondent as landlord although earlier he had executed a lease deed in respect of the shop in litigation and accepted him as his landlord. In the circumstances it was held that default in payment of rent stood admitted by tenant when the relationship of landlord and tenant between the parties stood proved and that further investigation on the point of default in payment of rent was unnecessary. In the light of authorities cited above, the present appellant cannot be allowed to raise a plea about his being owner of the premises in litigation by way of adverse possession, or about his having entered into a sale agreement in respect of the disputed premises.
11. ' It is worthy to note that in his written statement the appellant did not state if Mst. Qudsia Begum agreed to sell him houses No,1129 and 1130, Block No,8, Azizabad, Karachi for Rs, 50,000 and received payment of Rs,45,000 before witnesses. He mentioned so in para 3 of his affidavit. In the case of Government of West Pakistan (PLD 1976 SC 469) it was held that when a plea of fact was not pleaded, no case can be founded on such plea which was to be ignored. In the case of Hakim Ali v.
12. Muhammad Salim and another (1992 SCM R 46) the landlord during proceedings under the Rent Ordinance filed affidavit stating therein that the tenants were inducted in terms of conditions printed on the back to rent receipt but such plea was not taken in the pleadings and it was held that evidence of the landlord in absence of pleadings to that effect, cannot be looked into. In the circumstances, plea of the appellant about having entered into an agreement of sale in respect of the premises in litigation is to be ignored although this finding would not affect taking of such plea by the appellant in any suit filed by him or against him in respect of the property in litigation before a Civil Court.
13. ' The authorities cited on behalf of the appellant are distinguishable. In the case of Hajra Bai (1988 SCM R 679), there were rival claims of ownership between the parties related to each other and there was no affirmative evidence about the relationship of landlord and tenant except photo copy of an agreement of tenancy which was not proved and the ejectment application was held to have been rightly dismissed. In the present case the appellant himself admitted that he was tenant of Mst. Qudsia Begum who owned the property in dispute and who was predecessor-in-interest of the respondent. In the case of Fawwad and Fareen Enterprise Ltd. (PLD 1983 Kar 340) it was held that disputed questions of fact which require investigation and decision (existence of facts as to formation of a contract between the parties) do not fall appropriately within the writ jurisdiction of the High Court. In M/s. Mchran Shoes (1987 CLC 148) photostat copy of a letter, purported to have been written by estate agent to the landlord produced 'by the landlord in evidence, remained unproved as author of the same was neither examined nor was offered for cross-examination and the letter showed that the premises were let out through estate agent but did not show to whom they were let out and it was held that the letter in question cannot be read against the tenant. In case of Ghulam Murtaza (1986 CLC 1577) the view taken was that where determination of the question of relationship of landlord and tenant depended upon deciding the question of title, the best course for the Rent Controller is to leave the parties to get the question of title determined by a Civil Court. In the case of Muhammad Idris and another (1986 MLD 1303) the view taken was that the question of title is to be decided by a Civil Court and not by a Rent Controller. In the case of Mst.
14. Safia. Bai (PLD 1983 Kar 419) the view taken was that a Rent Controller has no power to decide ownership and an application is not sustainable if the applicant is not full owner/lancUord. In the case of Ghulam Yasin (1983 CLC 2498) it was held that observations made by a Rent Controller and by the appellant authority in relation to title of the property in litigation in favour of either of the parties do not prejudice either of the parties in establishing their right or title in the property in litigation or in obtaining any relief from the Civil Court in respect of such property. It was also held that a Rent Controller being a tribunal of limited jurisdiction and not being a Court of general jurisdiction, his adjudication is only confined to matters pertaining to eviction and relationship of landlord and tenant under Rent Ordinance. However the Rent Controller is not required to refer the landlord to establish his title in a Civil Court, where title of the landlord has been established beyond any rcasonble doubt, as held in case of S.M. Hayat v. Commodore Ikramul Haq Malik (1984 CLC 3176). In the case of Wali Muhammad (1980 CLC "835), it was held that jurisdiction of the Rent Controller was contingent on relationship of landlord and tenant between the parties.
15. As a result of above discussion I hold that the appellant was tenant of Mst. Qudsia Begum who gifted the propery in litigation to S. Usman Ali Kazmi (respondent). The latter stepped into the shoes Mst. Qudsia Begum and become landlord of the appellant. The appellant has nowhere taken plea if he had paid the rent for the disputed premises. In the circumstances the default in payment of rent is made out and further investigation on the point of default in payment of rent is unnecessary as per the view taken in the case of Habib Ahmed (1990 ALD 228). Consequently no exception, can be taken to the impugned order by which eviction of the appellant has been ordered. Present appeal therefore stands dismissed with costs. The appellant is permitted to retain possession of the demised premises for two months subject to payment of usual rent and then surrender peaceful possession of the same to the respondent or else he would be dismissed by, force without prior notice.