' This is an appeal from the order, dated 30th of June, 1990 passed by Civil Judge-II-cum- Controller, in Eviction Application No327/86 whereby directions have been made to appellant for handing over vacant possession of the shop bearing Municipal No,2-43/12-2(1522) situated at Fatimah Jinnah Road, Quetta (hereinafter referred to as "the disputed property") to respondent within a period of two months.
2. Concisely stating the facts are that respondent filed eviction application against appellant seeking ejectment of respondent on the grounds as under:-
(a) Default in payment of rent with effect from December, 1985 to onward;
(b) Disputed shop is required reasonably and in good faith by the respondent for his own use.1992J 83 ' The appellant resisted eviction application denying the relationship of landlord and tenant between the parties and the grounds on which eviction was sought were also controverted.
3. The trial Court framed following issues in order to settle down controversy between the parties:- "(1) Whether there exists no relationship of landlord and tenant between the parties?
(2) Whether the respondent has failed to pay rent or tender rent of the disputed shop to the applicant with effect from December, 1985 and onwards?
(3) Whether the premises in question is required reasonably and in good faith by the applicant for his own use?
(4) Relief?"
' The respondent .Besides his own statement produced two witnesses in support of his contention, whereas appellant got examined himself as well as adduced evidence of twelve witnesses to substantiate his daim.
4. The Controller finally determined the issue of relationship, in favour of respondent and against appellant whereas remaining issues i.e, relating to default in payment of rent and personal bona fide use and occupation were also decided in affirmative and consequently directed ejectment of appellant from the disputed premises.
5. In support of appeal, Mr. Riaz Ahmad, learned counsel has urged as under:-
(a) The Controller has wrongly dedded issue pertaining to relationship of landlord and tenant between parties, the appellant had produced overwhelming evidence to prove that respondent is not the landlord of the premises in dispute but the Controller without taking into consideration material on record has wrongly dedded this issue in favour of respondent.
(b) The respondent had not led evidence in support of issues Nos.2 and 3 therefore, these issues have been dedded in affirmative illegally and without lawful authority.
' It was lastly contended that in view of the facts and circumstances of the case appeal be accepted and eviction application filed by respondent be dismissed.
5. The counsel for respondent, Mr. KN. Kohli, contended asunder:- "(a) The respondent has produced suffident evidence on record to prove relationship of landlord and tenant between the parties. In fact the denial on behalf of petitioner was contumacious, therefore, Controller with lawful authority had decided issue No,1 in affirmative.
(b) The trial Court has rightly decided issue relating to default in payment of rent, in favour of respondent.
' Learned counsel for respondent candidly conceded that Controller had passed eviction order on the ground of personal bona fide use and occupation without recording evidence therefor, to this extent, he is not in a position to support the order but he stated that as relationship of landlord and tenant was contumaciously denied by appellant as such, tenancy was liable to be forfeited forthwith and without deciding issue of personal requirement ejectment of appellant can be directed.
6. I have heard learned counsel for both the sides and record of case has also been perused carefully with their assistance.
7. Before dealing with the respective contentions of both the counsel, it is necessary to examine the pleadings of parties in order to know their respective stands.
8. The eviction application filed by respondent reveals that three shops bearing Municipal Nos.2- 43/12-1 (1523)2-43/12-2(1522) and 2-43/12-3(1512), were constructed on a plot belonging to the Municipal Corporation by one Syed Ahmed Shah son of Syed Sultan Shah. Out of these three shops two were leased out to respondent bearing Nos.2-43/12-1 (1523) and 2-43/12-3(1512) in which, he installed a Printing Press in the name and style of Sarhad Art Printing Press whereas third shop bearing No,2-43/12-2(1522) was rented out to appellant at monthly rent of Rs, 135.
9. The respondent purchased superstructure of the shops which are in his possession as well as of disputed shop from Syed Ahmed Shah, the previous landlord after having sold the rights of superstructure to respondent issued a notice to appellant on 29th March, 1986, whereby he was informed that respondent had acquired the right of ownership in his favor therefore, appellant should pay rent to him at the rate of Rs, 135 per month. Similarly another notice was sent by respondent to appellant and he was attuned as his tenant in the disputed shop.
10. The appellant had failed to make payment of rent at the stipulated rate, therefore, eviction application was filed on the ground of default in payment of rent as well as on ground of personal bona fide use and occupation.
11. The appellant while filing written statement raised objection that there is not relationship of landlord and tenant between the parties, however, on merits he admitted that originally shop in question was leased out to him by Syed Ahmed Shah and he is depositing the rent in his name with Rent ' Controller from the month of December, 1985 to onward, he further stated that shop which is in his occupation has been purchased fictitiously by respondent from Syed Ahmed Shah. In the written statement, it was further elaborated that shop is constructed on a piece of land measuring 380 Sq.
Ft. Belonging to Municipal Corporation, Quetta, and the lease of land was in the name of Syed Ahmed Shah for a period of 30 years with effect from 1st of July, 1967, the underneath land has been acquired by Municipal Corporation for the public purposes as per notice No,220, dated 22nd January, 1986.
' In view of these circumstances there was no justification for selling the lease rights of the shop in question. He further stated that so-called sale is unwarranted by law. l2. Notice sent by respondent as well as by previous landlord was also acknowledged in the written statement, appellant also stated that reply of the notices was sent to respondent through counsel in which, specifically it has been mentioned that appellant shall make payment of rent to Syed Ahmad Shah and not to Mohammad Younas. In this context para-3 of the written statement is relevant for deciding all relative questions hence same is reproduced hereunder for reference:- "3. Contents of para No3 as alleged, having been incorrectly mentioned therefore, strongly repudiated. As a matter of fact, the shop in occupation of the replying respondent has been purchased fictitiously from one Syed Ahmad Shah. The shop consists upon a piece of land measuring 380 square feet, belonging to Quetta Municipal Corporation, situated at Fatima Jinnah Road, Quetta was leased out to one Syed Ahmad Shah for a period of 30 years with effect from 1-7- 1967 and the same for the requirement of the public purposes was resumed by Quetta Municipal Corporation as per Notice No,220 dated 22-1-1986. Copy of the same is enclosed and marked as Annexure 'B'. And in these circumstances there was no justification for selling the lessee rights of the shops in question. The so-called sale is unwarranted by law. A notice dated 29-3-1986 was sent to replying respondent through Raja Fayyaz Ahmad, Advocate on behalf of Syed Ahmad Shah and Muhammad Younis which was accordingly replied on 13-4-1986 through his counsel, Mr. Muhammad Riaz Ahmed, Advocate, in which it has been specifically mentioned that the replying respondent shall make payment of the rent to Syed Ahmad Shah and not to Muhammad Younis.
Copies of the Notices and reply thereto are enclosed as Annexures 'C'. 'D' 'E* & *F respectively. The replying respondent has never admitted the applicant as his landlord, as such the applicant has got no right, title and interest over the property in question and in these circumstances Muhammad Younis has also submitted a Suit for Declaration and Injunction in the Court of Civil Judge, Quetta, which is pending adjudication. Copy of the suit is attached and marked as Annexure *G*. Written statement of the Municipal Corporation, Quetta, whereby they have mentioned that there is no agreement of sale regarding lease of the land in question, between Muhammad Younis and that of Mayor, Municipal Corporation, Quetta is also attached and marked as Annexure *H* as such, the respondent is tendering the rent before the Rent Controller, Quetta and rent upto 31st December, 1986 stands paid in favour of Syed Ahmad Shah."
' The appellant also denied the claim of respondent on the ground of personal bona fide use and occupation.
13. Now reverting to the contention of Mr. Riaz Ahmad that the Controller had wrongly decided issue of relationship of landlord and tenant between the parties. The appellant is admittedly tenant of previous landlord Syed Ahmad Shah who after selling the proprietary rights in superstructure of disputed property informed the appellant through a notice which was duly received and acknowledged by him about the change of landlordship of disputed property. Similarly respondent in accordance to the provisions of section 13-A of Ordinance-VI of 19S9 also intimated to appellant that he has attained the status of landlord after purchasing the disputed property from Syed Ahmad Shah, appellant was also attorned as statutory tenant and rent was demanded from him but surprisingly appellant in spite of receiving these notices refused to accept the respondent as landlord and in para. 3 of the written statement, which has been reproduced hereinabove, categorically mentioned that he will make payment of rent to Syed Ahmad Shah and not to Muhammad Younis, besides this, appellant further objected on the transaction of sale between previous landlord and respondent and contended that the respondent has purchased the shop in question fictitiously from syed Ahmad Shah and moreover Municipal authorities have issued a notice dated 22-1-86 in accordance to which, underneath land of disputed shop was ordered to be resumed for public purposes by Mayor, Quetta Municipal Corporation and previous landlord was called upon to hand over possession of the underneath land of shops within a period of three months from the date of notice, let as it may be, fact remains that if Municipal Corporation even succeeds in acquiring the underneath land of disputed property, appellant would not become the owner of superstructure of shop in which, he was inducted as tenant by previous landlord, and if the respondent had purchased ownership rights in disputed property in spite of the fact, that Municipal Corporation had desired to acquire the property in the public interest, how the appellant can deny the relationship of landlord and tenant for these reasons.
14. During course of arguments, counsel for appellant informed that Municipal authorities have also started collecting rent from appellant of the underneath land therefore, he has acquired the status of tenant of Municipal Corporation in the disputed property. It may be observed that Municipal Corporation is not empowered under the law to accept the appellant as their tenant in respect of land on which, shop in dispute has been constructed unless previous lease which was in name of Syed Ahmad Shah is cancelled. Moreover if appellant had succeeded in establishing that he has become the tenant of underneath land of Municipal Corporation, he will not be recognized by the Municipal Corporation as tenant in disputed shop. In such view of the matter, appellant is under legal obligation to first of all hand over the vacant possession of premisses to landlord and thereafter if he has any claim of whatsoever nature, he can agitate the same by filing a civil suit in the Court of competent jurisdiction.
15. The attitude of appellant appears to be adamant and indifferent, the tenant cannot attain the status of landlord irrespective of the fact that title of the landlord is defective for any reason, therefore, stand taken by appellant in the written statement as well as efforts which are now being made by him to become the lessee of the underneath land clearly proves that he had contumaciously denied the relationship of landlord and tenant between the parties.
16. Although the Controller had proceeded to decide the question on merits but this is settled principle of law that once it is held that relationship of landlord and tenant exists between the parties and the denial was contumacious the Controller is empowered under the law to forfeit the tenancy rights straightaway and direct the ejectment of such tenant forthwith. In this behalf reference can be made to case reported in Malik Anayatullah v. Faryad and others 1982 CLC 2073.
' Since it is established that appellant wanted to set up adverse title against the landlord by refusing to accept him as landlord therefore, Controller would have passed order of ejectment against appellant without deciding other issues.
' Keeping in view aforesaid circumstances, I am inclined to hold that relationship of landlord and tenant does exist between the parties and denial of relationship of landlord and tenant was contumacious on part of appellant therefore, the tenancy is ordered to be forfeited and his ejectment from disputed property is ordered accordingly and under the circumstances there is no need to dilate upon other contentions raised by Counsel for parties.
' Resultantly appeal is dismissed with cost and appellant is directed to hand over the vacant possession of premises in dispute forthwith to respondent.