1. ' Appellant Zawar Hussain has called in question an order of eviction passed against him on 2-1- 1989 by the Ist Senior Civil Judge and Rent Controller, Karachi, South in Rent Case No, 630/86.
2. ' Said rent case was filed by the respondents for eviction of the appellant from the flat in litigation bearing No,56 in Raja Mansion, Yaqoob Khan Road, Karachi (mentioned in para 1 of the rent application) on the ground of non-payment of rent for January 1961, February 1961 and Marach 1961 and on ground of subletting.
3. ' The rent case was opposed by the appellant who in his written statement denied existence of relationship of landlord and tenant between him and the respondents. The case of the appellant was that transfer of Block-5 of Raja Mansion which included the disputed flat, in favour of the respondents was cancelled and the property vested in the Government of Pakistan as Evacuee property and the respondents had no right or authority to claim rent or to file ejectment application. It was added that earlier respondent No,2 had filed Rent Case No, 406 against Mehdi Hassan father of the appellant but the same was dismissed on 20-7-1965. Respondents filed another ejectment application No, 2087/85 against Mst. Khurshid paternal-grandmother of the appellant but the same was dismissed. Appellant challenged the rent application to be misconceived not maintainable and bad for non-joinder of parties. He also challenged jurisdiction of the trial Court. Appellant claimed that his father was depositing the rent in Court, besides paying heavy taxes to the concerned authorities.
4. ' After recording evidence of the parties, learned Rent Controller under the impugned order accepted the application and ordered eviction of the appellant from the flat in litigation within a period of 90 days. Hence this appeal.
5. ' Mr. Niaz Hussain, learned counsel for the appellant argued that the disputed property could not be transferred by negotiation to the respondent No,2 and as such it was not a valid transfer. It was next argued that the Agreement of Association between the respondents should have been accepted by the Settlement Authorities, otherwise it was not legal. It was also argued that a legal heir could not be associated with a claimant under an Agreement of Association till 1963, and since the PTO ExhA/1 was issued on 21-3-1960 the Agreement of Association between a legal heir and a claimant was illegal. Learned counsel was of the view that since title of the respondents in the property in litigation was challenged, hence the Rent Controller should have referred the respondents to a Civil Court for getting their title cleared. Learned counsel for the appellant took exception to the issue of annexure to the Fro and argued that no such annexures were issued and as such the PTO produced by the respondents was a doubtful document and this was confirmed by the fact that admittedly no PTD was issued in favour of the respondent. In this respect, learned counsel was of the view that the order of transfer was without jurisdiction and was null and void.
6. Learned counsel for the appellant red the cases of:--
(i) Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064).
(ii) Mst. Fatimah Bibi and others v. Settlement Commissioner and others (PLD 1973 Note 23 at p.34).
(iii) Mst. Sabira Begum and others v. Fazal Din and others (1982 SCMR 437).
(iv) Mst. Amina Begum v. Addl. Settlement Commissioner, Lahore and others (1981 SCMR 228).
(v) Ch. Abdul Qayyum v. Chief Settlement Commissioner and another (PLD 1968 SC 362).
(vi) Mst. Tilawatunnisa and others v. Settlement Commissioner and others (1978 SCMR 225). ti
(vii) Abdul Aziz Shah and another v. Abdul Ghafoor and another (1985 SCMR 221).
(viii) Khuda Bux v. Khushi Muhammad and others (PLD 1976 SC 208).
(ix) Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner (PLD 1977 SC 164).
7. ' Respondent No,2, Mr. M.M. K.A. Zai argued the case for himself and for respondent No,1. He explained non-production of the origianl PTO by saying that the same was taken away by Police and produced in a Court. Respondent No,2 conceded that no notice under Section 30 of D.P. Act was sent to the appellant but contended that such notice was not necessary as filing of a rent case was by itself a notice. It was further argued that all transferees of a property need not be joined as parties in an application for eviction of a tenant because one of the co-owners can file such an application. It was also argued that even if the PTO in favour of the respondents was defective, liability of the appellant to pay rent was unaffected. It was added that no document had been produced to show cancellation of the P.T.O. Issued in favour of the respondents. Respondent No,2 claimed that the persons who joined him under an Agreement of Association made him their agent and as such he was competent to collect the rent on their behalf in respect of the premises in litigation. Respondent No,2 referred to the definition of 'tenant"' given in the Rent Ordinance and contended that an occupant of certain premises transferred under the Evacuee Laws became tenant of the transferee. In support respondent No,2 cited the cases of:-
(i) M.M.K.A. Zai v. Settlement Commissioner and another (1982 SCMR 288).
(ii) Muhammad Ashraf v. Abdul Hamid and others (1982 SCMR 237 (2)).
(iii) Bank of Bahawalpur Ltd. v. Chief Settlement and Rehabilitation Commissioner and another (PLD 1977 SC 164).
(iv) Aziz Begum v. Faiyaz Butt (1991 CLC Note 9 at p. 6).
(v) Mazhar Ali Azhar v. Dr. Inzarul Islam Qureshi (PLD 1971 Lah. 104).
(vi) Bashir Ahmed v. Abdul Hamid and another (1983 SCMR 302).
(vii) Pakistan Sports Co-operative Industrial Society Ltd v. Kh. Muhammad lqbal Butt (1982 SCMR 1175).
(viii) Muhammad Sharif 'v. Sh. Muhammad Amin and others (PLD 1970 Lahore 283).
(ix) Mst. Kalsoom Akhtar and others v. Muhammad Yaqoob (PLD 1976 Kar. 992).
(x) Gulistan etc. v.Muhammad Akram (1983 CLC 2808).
(xi) Bashir Ahmed v. Mst. Zubeda Khatoon (1983 CLC 390).
(xii) Sadori Bai and others v. Faiz Muhammad (1990 CLC 1353).
(xiii) Naimuddin v. Ziauddin (PLD 1984 Kar. 441).
8. ' In support of the rent application there is affidavit-in-evidence of respondent No,2 M.M.KA. Zai. He claimed to have purchased from Settlement Department the property known as 'Raja Mansion' standing on Plot No,RC 8/7/1 A-1 D. Block No,S 2, 3, 4 and 5 at Yakoob Khan Road, Karachi. He produced copy Exh. A/1 of P.T.O. Dated 21-3-1960 and copy Exh. A/2 of annexure to the PTO and Copy ExhA/3 of the Agreement of Association. Under the Agreement Copy ExhA/3 some persons including respondent No,1 Shamsunissa Begum agreed to associate respondent No,2 Zai in the Raja Mansion and pay towards its cost and take tenements of Raja Mansion against cash or deferred amount of their compensation books which had already been adjusted against cash of Raja Mansion and for which they had already entered into agreements separately with respondent Zai. Under the said agreement copy ExhA/3 respondents No,1 Shamsunnisa was agreed to be given 13 tenements including tenement No, 56 of Raja Mansion. Respondent No,2 further stated that he was appointed by the respondent No,1 as rent collector vide power of attorney copy ExhA/4. In respect of the flat in litigation, respondent No,2 stated that the same was occupied by Mehdi Hassan and on his death it was occupied by his legal heirs and by the appellant, who was tenant of the respondents. Mehdi Hassan was said to have paid rent up to December 1960. Respondent. No,2 added that the appellant had not paid rent since January 1961 in spite of such demand. In his cross-examination respondent No,2 admitted that Raja Mansion was an evacuee property and it was put to auction and under a single PTO Blocks 1 to 5 were transferred but no PTD had been issued so far. Respbndent No,2 further stated that the premises in question were given to the respondent No, 1 under an agreement of association filed by him, but no PTO was issued in the name of respondent No,1 and no notice under section 30 of D.P. Act was given to the appellant.
9. Respondent No,2 admitted that his appeal was set aside by the Supreme Court under a judgment reported in 1982 SCMR 788 where it was held that the property sold to the respondent No,2 comprised of four units bearing Nos.RC 8/7/1-A to 1-D and it did not include fifth unit viz. Municipal Property No, RC 8/7/2/1/1. This by itself is not sufficient to prove existence of relationship of landlord and tenant between the respondents and the appellant. Amdittedly there was no Admittedly there was no rent agreement between the parties. The statutory relationship of landlord and tenant in respect of an evacuee house or shop can be created by section 30 of the Displaced Persons (C&R)
10. Act, 1958, between a transferee 1 and an occupant of the same. Creation of such relationship between the parties in the instant case, depended upon the fact whether the respondents or any of them was transferee of the premises in litigation, which was admittedly in possession of the appellant. The evidence about transfer of the disputed premises to respondents or any of them is scanty. The original PTO was not produced in evidence and the photo copy Exh.A/1 was not admissible in evidence for want of authentication. There is no P.T.O. In respect of the tenement in litigation in favour of the respondent No,1. The photo copy of the Agreement of Association Exh. A/3 is again insadmissible in evidence as it is not authenticated by the authority having the original in its possession. Copy of the P.T.O. Is accompanied by copy Exh. A/2 of annexure, giving the names of associates. There is no mention of the annexure in the PTO copy Exh.A/1. There is no mention in the Rent Application or in the affidavit of respondent No,2, as to, whether the appellant was in possession of the premises in litigation at the time the same was transferred. It is not stated anywhere as to since when the appellant is in possession of the premises in litigation. In this way the essential ingredients, necessary to create statutory relationship of landlord and tenant, under section 30 of the D.P. (C & R) Act, between the parties are missing.
11. In a case of this nature, where the very title of the person seeking eviction under the rent laws is challenged, he has to establish his position as a landlord beyond any reasonable doubt. In the case of Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) cited on behalf of the appellant it was observed as below:.
12. "When the decision of the issue regarding relationship of landlord and tenant depends solely and not incidentally on the question of the, ownership and title to the property and it will not be possible for the Controller to decide the case without deciding the basic question involved regarding title, then in such like cases it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative."
13. ' It was also held in the said case that if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt, he would not be allowed the benefit of affirmative finding on such issue. Such finding of fact is to be reached after complete satisfaction and that too as a result of opportunity having been afforded to the parties concerned to satisfy the Controller one way or the other, as further held. It was also held in the same case that even when the landlord has discharged the initial onus in a case involving title, the Rent Controller can refuse. To eject the tenant, on the tenant creating genuine and reasonable doubt about the same. Such doubt has been created in the instant case by the evidence of the respondents alone.
14. ' The other cases cited on behalf of the appellant do not help him. In Mst. Fatima Bibi and others (PLD 1973 Note 23 at p.34) the view taken was that mere submission of deed of association will not amount to its acceptance.
15. ' In Mst. Amina Begum (1981 SCMR 228) the view taken was that when statements of the parties were not recorded, there was no agreement of association in the eye of law. In case of Mst. Sabira Begun" and others (1982 SCMR 437) it was held that a High Court setting aside a PTO did not exceed the constitutional jurisdiction. The cases of Abdul Qayyum (PLD 1968 SC 362) and Mst.
16. Tilawatunnisa and others (1978 SCMR 225) relate to disposal of big mansions. In Abdul Aziz Shah and another (1985 SCMR 221) it was held that where the Supreme Court has refused leave to appeal without giving reasons, such decision is not to be treated as a considered judgment. In the case of Khuda Bux (PLD 1976 SC 208) it was held that no party can plead an order as final, which is made in excess of powers of the authority making it. In the case of the Bank of Bahawalpur (PLD 1977 SC 164) it was held that there was no discrimination between occupant of an ordinary house and that of a big mansion or a hotel, for the purpose of transfer.
17. ' The cases cited on behalf of the respondents do not help them. In the case of M.M.K.A. Zai (1982 SCMR 788) it was held that the evacuee building namely Raja Mension transferred to the respondent No,2, did not include the property bearing municipal No,RC 8/7/2/1/1. In the case of Muhammad Ashraf (1982 SCMR 237 (2)) it was held that if a tenant entertains doubt regarding claim of two allottees, he can ascertain it from the authorities sanctioning the transfer. In the case of Bank of Bahawalpur Ltd. (PLD 1977 SC 164) it was held that onus was on occupant of an evacuee property to prove that his possession of the same entitled him to the benefit of Section 30 of the Displaced Persons (C & R) Act. In the case of Aziz Begum (1991 CLC Note 9 at p. 6) it was observed that filing of an ejectment application was by itself a notice under section 13-A of Sindh Urban Rent Restriction Ordinance. In the case of Mazhar Ali Azhar (PLD 1971 Lah. 104) it was held that associate of the purchaser of a big mansion is a transferee and competent to move ejectment proceedings.
18. In the case of Bashir Ahmed (1983 SCMR 302) one out of twelve co-sharers of property obtained order of ejectment and such order was held to he not open to challenge. In the case of Pakistan Sports Cooperative Industrial Society Limited (1982 SCMR 1175) it was held that validity or correctness of a PTO cannot be gone into by a Rent Controller in eviction proceedings. In the case of Muhammad Sharif (PLD 1970 Lah. 283) the view taken was that an order of Rent Controller staying his hands to await decision of a Civil Court, and in disregard of definition of "landlord", was justiciable in a constitution petition. In the case of Mst. Kalsoom Akhtar and others (PLD 1976 Kar 992) the view taken was that a 'landlord' need not be owner. This was in respect of the definition of 'landlord' given in the repealed Sindh Urban Rent Restriction Ordinance. In the case of Gulistan etc. (1983 CLC 2808) the view taken was that payment of rent and its acceptance was sufficient to constitute relationship of landlord and tenant. It was also held that non-payment of rent on the ground that the tenant had challenged ownership of the landlord, was not justified. In the case of Bashir Ahmed (1983 CLC NO) the view taken was that the question of jurisdiction can he agitated at the appellate stage if not taken at the trial stage, provided it did not involve investigation of facts.
19. In the case of Sadori Bai and others (1990 CLC 1353) the view taken was that only those heirs of a deceased tenant can be treated as tenants who are actually in possession of the premises. In case of Naimuddin (PLD 1984 Kar. 441) the view taken was that the Rent Controller cannot decide the legality of transfer and that if a tenant was inducted into the premises by his landlord, he cannot challenge title of such landlord without leading evidence. All these cases had facts materially different from facts of the instant case.
20. 1n the instant case the basic question before the Rent Controller was to determine as to whether the appellant was tenant of the respondent in terms of Section 30 of the Displaced Persons (C & R)
21. Act, as contractual tenancy between them did not exist. In order to succeed on such an issue, the respondents had to establish beyond reasonable doubt that they were transferees of the premises in litigation. It was not for the Rent Controller to determine legality of the Agreement of Association or to examine legality of the transfer or to go into the question whether the premises in litigation was a big mansion or not. The evidence led by the respondents did not prove beyond doubt about their being transferees of the premises in litigation. In that situation the proper course for the Rent Controller was to decide the issue against the landlords and advise them to get their title established, before seeking ejectment of the occupant. Such a course would have been consistent with a plethora of case-law on the subject including the case of Rahmatullah (1983 SCMR 1064).
22. ' Consequently present appeal is accepted with no order as to costs and the impugned order of ejectment is set aside, and the Rent Application stands dismissed. This judgment would not operate as res judicata in any litigation between the parties concerning title of the property in litigation.