1. ' Mohammad Jalil Khan has challenged dismissal of his rent Application No,404/86 by the llnd Senior Civil Judge and Rent Controller Karachi South on 4-51988.
2. ' According to the rent application, the premises in litigation viz. Godown No,0/5 of the building on Plot No,SR.6/1/1/1, Frerc Road, New Challi, Karachi was in possession of Mehboob Elahi, when the entire building standing on said plot was transferred to Mustajab Khan father of the appellant.
3. Mustajab Khan was issued such P.T.O. On 12-9-1959 and such P.T.D. On 25-5-1986 and record was mutated in his name. Notice under section 30 of the Displaced Persons Act was said to have been issued to Mehboob Ellahi who did not pay rent. Consequently Mustajab Khan filed Rent Case No,1055/1962 against Mehboob Elahi for his ejectment from the premises in litigation.Said rent case was dismissed on 9-10-1965 for want of proof about service of notice under section 30 of the Displaced Persons Act on Mchboob Elahi and about default. Mustajab Khan went in appeal before the District Judge where he laid additional evidence about having sent notice under section 30 of said Act to Mehboob Elahi and he succeeded in proving service of the notice upon Mehboob Elahi, but on merits the Additional District Judge who decided the appeal repelled the application for ejectment. The matter was taken to the then High Court of West Pakistan through Second Appeal No,462/1967 which was summarily dismissed on 4-9-1967 on the ground that when Mehboob Elahi declined to pay rent at the rate of Rs,161 it cannot be said that he committed a default, because there was no refusal by him to pay rent according to the 'latest assessment'. Mustajab Khan filed LPA No,197 of 1967 against Mahboob Elahi, who died during pendency of the appeal leaving behind respondents 1 to 8 as his legal heirs. Said LPA was heard and dismissed by a learned D.B. On 15-10- 1977.
4. ' During his lifetime, Mehboob Elahi had moved the Settlement Authorities against transfer of the disputed premises to Mustajab Khan but without success. He moved Constitution petition in this Court against decision of the Settlement Authorities declining to re-call the order of transfer made in favour of Mustajab Khan but his Constitution petition was dismissed in 1974. Legal heirs of Mehboob Elahi filed Civil Appeal No,K-43 of 1974 in the Supreme Court of Pakistan but the same was dismissed in default on 25-8-1982 and subsequently application for restoration of said appeal was also dismissed for non-prosecution on 4-12-1982.
5. ' On 7-5-1982 Mustajab Khan died and on 20-10-1985 his heirs including appellant Mohammad Jalil Khan sent notice to the heirs of Mehboob Elahi to pay rent of the disputed premises to the heirs of Mustajab Khan; Ultimately on 26-3-1986 appellant Mohammad Jalil Khan one of the heirs of Mustajab Khan filed Rent Case No,404/1986 against the legal heirs of Mehboob Elahi and against Abdul Razzak for their eviction from the premises in litigation on the grounds of default in payment of rent since 12-9-1959 and on the ground of subletting of the premises to respondent No,9.
6. ' The rent case was contested by respondent No,9 only. In his written statement respondent No,9 claimed that the disputed premises were in possession of his father Mohammad Ahmed who was tenant of Mehboob Elahi whom he was paying rent at the rate of Rs,30 per month, Respondent No,9 claimed to be in possession of the disputed godown as a heir of Mohammad Ahmed. He took plea that there was dispute between Mehboob Elahi and Mustajab Khan and none of them was accepting rent. Respondent No,9 claimed to be tenant and not sub-tenant in the disputed premises. The rent case was not contested by the respondents 1 to 8, who were ex parte.
7. ' After recording evidence of the parties learned Rent Controller under her order dated 4-5-1988 dismissed the rent application. Hence this appeal.
8. ' Mr. Abdul Majeed Khan, learned counsel for the appellant argued that by virtue of the PTD issued on 25-5-1968 Mustajab Khan was transferee of the disputed premises which were in possession of Mchboob Elahi and as such there was statutory tenancy between the Mustajab Khan and Mahboob Elahi. Learned counsel referred to the previous litigation between Mahboob Elahi and Mustajab which was resolved in favour of the latter in respect of title in the disputed property.
9. Learned counsel next referred to the order passed by the Addl. District Judge, Karachi in a rent appeal filed by Mustajab against dismissal of his Rent Case No,1055/62 and argued that affirmative finding by the Addl. District Judge about service of notice under section 30 of D.P.(C & R)
10. Act upon Mahboob Elahi was maintained in second appeal and in Letters Patent Appeal and hence the appellant had been able to make out case against the respondents 1 to 8, who were his statutory tenants being legal heirs of deceased Mahboob Elahi. Learned counsel for the appellant contended that the respondent No,9 was not tenant of the appellant and hence he was not required to be given any notice under section 18 of the Rent Ordinance. It was also argued that the appellant being one of the co-owners of the disputed property was competent to file the rent case as held in the case of Khalique Ahmed v. Abdul Ghani (PLD 1973 SC 214). Learned counsel for the appellant further argued that the respondent No,9 was admittedly in possession of the premises and onus was on him to show as to in which capacity he was retaining the possession. Mr. Abdul Majeed Khan learned counsel for the appellant cited the cases of:
(i) Khalique Ahmed v. Abdul Ghani and another (PLD 1973 SC 214)
(ii) Moosa Bhai v. Yousif and another (1984 CLC 3241)
(iii) Masroor Hassan and another v. Abbas Ali Khan (1981 CLC 669)
(iv) Syed Azhar Imam.Rizvi v. Mst. Salma Khatoon (1985 SCM R 24)
(v) Mrs Ruby Misso v. Mrs. Kaniz Fatimah etc. (1990 CLC 1320)
11. ' Mr. Faizanul Haq, learned counsel for respondent No,9 argued that the respondent No,9 got possession of the godown in litigation through his father who was tenant of Mahboob Elahi in said godown. It was next argued that respondent No,9 alone was in possession of the godown in litigation in his own rights as a tenant.
12. ' There is sufficient evidence on record to show that the building, of which the godown in litigation is part, was transferred to Mustajab Khan father of the appellant. He has produced photo copy (Annexure 'D') of the PTO dated 12-9-1959 and photo copy of an entry from the property register showing that the building in question was transferred to Mustajab Khan in whose favour record was Mutated. Such mutation also took place in the record of Excise and Taxation Department, as per the photo copy of PTI (Annexure 'F') filed in this Court. There is copy of the order dated 9-10-1965 passed by the Additional Civil Judge and Rent Controller, Karachi, rejecting the rent application filed by appellant's father against Mahboob Elahi predecessor of respondents 1 to 8. It has been mentioned in said order that the property in question was purchased by Mustajab Khan father of the appellant in a public auction and P1'0 was issued to him on 12-9-1959. There is copy of an order dated 4-9-1967 passed by the then High Court of West Pakistan in Second Appeal No, 462/67 by which order of the Rent Controller was not interfered with but appellant's father was recognized to be transferee of the property in litigation and Mahboob Elahi was recognized to be his statutory tenant in terms of section 30 of D.P. (C & R) Act, 1958. Appellant also produced in this Court copy of the judgment dated 15-10-1977 delivered in LPA No, 197/67 by a D.B. Of this Court. In said order appellant's father was treated to be owner of the property in litigation which was in possession of respondents 1 to 8, on death of Mahboob Elahi. Under said judgment it was observed that Mehboob Elahi had lost protection from eviction given by section 30 of D.P. (C & R) Act, but there was no proof if Mahboob Elahi had wilfully defaulted in paying rent according to the latest assessment.
13. ' Evidence adduced by the appellant stands unrebutted in so far as the respondents 1 to 8 are concerned. The only person who has chosen to contest the appeal is respondent No, 9 Abdul Razzak, who has set up a new claim about his being tenant in possession of the demised premises.
14. It is worthy to note that there was lengthy litigation between appellant's father and predecessor of the respondents 1 to 8. Neither respondent No, 9 nor his father Muhammad Ahmed applied, at any stage of the litigation between Mustajab Khan and Mahboob Elahi, for being joined as a party.
15. Respondent No,9 has, A however, not challenged title of appellant's father in the disputed property.
16. His only claim is, that he is tenant in the disputed godown. On this point, learned counsel for the appellant has cited the case of Masroor Hasan (1981 CLC 669) where the view taken was that once a landlord proves that some body else is using the rented premises either exclusively or jointly with the tenant, the burden of proof shifts on the tenant to explain the relationship between him and the person using the tenement. In the case of Muhammad. Yusuf Khan v. Moosa and another (1987 CLC 981) it was held that mere handing over of possession by the tenant to another person without the consent of the landlord is sufficient to make him liable for eviction by the landlord. In the instant case respondents Nos. I to 8 who had become tenants in the disputed godown after death of Mahboob Elahi, did not come forward to assert their right of possession of the godown. Respondent No, 9 did not claim if he was given possession by Mahboob Elahi or by his legal heirs. The onus therefore lies on respondent No, 9 to establish that his father Muhammad Ahmed'was occupant of the godown when the same was transferred to Mustajab Khan. In his affidavit, respondent Abdul Razzak stated that his father Muhammad Ahmed who expired 12 years prior, was tenant in the disputed godown and that he was paying rent to Mahboob Elahi, who used to issue receipts for the same. Admittedly Mahboob Elahi was not transferee or owner of the disputed godown, he having lost the legal battle for transfer of the disputed property upto the Supreme Court of Pakistan. In the circumstances even if Muhammad Ahmed father of respondent No, 9 paid any rent to Mahboob Elahi, that would C not establish possession of Muhammad Ahmed as tenant in the disputed property. In his cross-examination respondent No, 9 admitted that Mahboob Elahi was not owner of the building in question. In para 11 of his affidavit he admitted that there was dispute between Mahboob Elahi and Mustajab Khan and that Mst. Dilshad Begum widow of Mahboob Elahi had filed Civil Appeal No, 43 of 1974 which was dismissed on 4-12-1982 by the Supreme Court of Pakistan.
17. Respondent No, 9 admitted in his cross-examination that he had deposited the rent in Court in the name of appellant Muhammad Jalil. He added that it was possible that Mahboob Elahi may be tenant of Mustajab Hussain and he may have given the premises on rent to Muhammad Ahmed.
18. Respondent No, 9 also produced photo copies of rent receipts showing that rent was paid by his father Muhammad Ahmed to Mahboob Elahi for the godown in litigation for some period, Mahboob Elahi was however not eligible to receive rent for the premises transferred to Mustajab. In this situation if Muhamamd Ahmed out of ignorance paid rent for the premises in dispute to Mahboob Elahi, such payment alone could not have created relationship of landlord and tenant between the two. Mahboob Elahi had lost to Mustajab the litigation about transfer of the disputed property. As such he was not competent to let out the same to Muhammad Ahmed or any body, else. His position was that of a tenant and if he let out the premises to Muhammad Ahmed it was pure and simple a subletting. This subletting was without written permission of the owner viz. Mustajab Khan.
19. In the case of Mrs. Ruby Misso 1990 CLC 1320 a learned Single Judge of this Court held that tender of rent by sub-tenant inducted without written permission of the landlord, would not be tender of rent by the tenant. All this shows that neither the respondent No,9 nor his there Muhammad Ahmed, had right of tenancy in respect of the disputed godown. In this situation neither Muhammad Ahmed nor respondent No,9 is protected from being evicted from the disputed godown.
20. ' A legal objection was raised about competency of appellant Muhammad Jalil to file the rent case when he was only one of the legal heirs of original owner Mustajab Khan. The legal objection has been answered in the cases of Khalique Ahmed PLD 1973 SC 214 and Moosa Bhai 1984 CLC 3241 cited on behalf of the appellant. In light of these authorities there is no difficulty in holding that the appellant being co-owner in the disputed godown was competent to file the rent case.
21. It has been established on record that the disputed godown was in possession of Mahboob Elahi when the same was transferred to Mustajab Khan. Subsequently a notice under section 30 of the D.P. (C&R) Act was G served upon Mahboob Elahi. Despite this no rent was paid by Mahboob Elahi or by any of the respondents 1 to 8. In these circumstances the ground of default is made out.
22. The ground of subletting is proved against Mahboob Elahi predecessor of respondents 1 to 8 by evidence of the appellant as well as by the evidence of respondent No,9. If Muhammad Ahmed or his son Abdul Razzak managed to be in possession of the disputed godown they did not H become tenant of the same. Stand of respondent No,9 that he got possession of the godown through his father who got possession of the same from Mahboob Elahi on rent, supports case of the appellant about subletting. Therefore, hold that the ground of subletting is made out.
23. ' In view of my above discussion, I accept this appeal and set aside the impugned order and order eviction of respondents from the godown in litigation after a period of one month. On expiry of said period the respondents or any of them in possession of the demised godown would surrender peaceful possession of the same to the appellant, or else they would be ejected by force without prior notice. No order as to costs.