' I have heard Mr. Muhammad Jamil, learned counsel for the appellant and Mr. I.M. Patel, learned counsel for the respondents Nos.2 to 8. None has appeared on behalf of Syed Wali Raza (respondent No.1).
2. The present appeal has been filed against the order of the learned Vth Rent Controller South, Karachi dated 12-5-1990 directing the appellant to hand over vacant possession of the demised premises to respondent No.1 within 15 days of the passing of the order. Ejectment was sought by respondent No.1 on the ground of non-payment of rent and personal requirement of the premises for the use of respondent No.1. Additionally it was also alleged that the appellant had made alterations in the demised premises.
3. During the pendency of the proceedings before this Court, an application (C.MA. No.688 of 1991) was filed on behalf of the appellant whereby an order was sought to join the legal representatives of one Seth Muhammad Essopjee Bulbulia who was said to be the real owner of the property in question. It may be pointed out that the respondent No.1 who had instituted the ejectment proceedings against the appellant before the learned Controller had claimed ownership of a portion of the property on the basis of a Court auction. Admittedly, the said legal representatives had no knowledge in respect of the pending proceedings before the learned Rent Controller.
However, they have now been impleaded as parties by order of this Court dated 11-8-1991.
4. The position which emerges now is that two parties, one represented by respondent No.1 and the other represented by the legal representatives of the said Seth Muhammad Essopjee Bulbulia claim ownership of the same premises. It, therefore, requires to be determined first as to who is the real owner of the property in question. It may be pointed out that in a case recently decided by the Supreme Court which has been reported as Abdul Hameed Naz v. Mst. Razia Begum Awan 1991 SC MR 1376 it has been held that where an issue regarding relationship of the landlord and the tenant depends solely and not only incidentally on the question of ownership and title to property and it is not possible for the Rent Controller to decide the case without deciding the basic question involved regarding title, then it would not be appropriate for him to evaluate such a situation by observing that decision on the question of title would only be tentative. The Rent Controller in a case where the landlord fails to establish his position as the landlord beyond a reasonable doubt would be required to decide the issue of such relationship against the landlord and advise him to first get his title established before seeking ejectment against the tenant. In the present case also, after respondents Nos.2 to 8 have been joined as parties to the proceedings, a question that requires to be determined under the circumstances is which of the two parties is the real owner of the property in question. This question can only be determined when evidence is led by the parties in respect of their respective claims of title. Under the circumstances, both the learned counsel agree that the matter will have to be remanded to the learned Controller for a decision on the issue.
5. In the result, the impugned order, dated 12-5-1990 is set aside and the case is remanded to the learned Controller for a fresh decision. The learned Controller shall first decide the issue in regard to the ownership of the property and if any of the parties fails to establish its possession as owner of the property, the learned Controller may direct it to refer the matter to the Civil Court for a decision in respect of the title in the light of the aforesaid judgment of the Supreme Court. The parties shall be permitted to lead evidence in the matter for an effective decision on the said issue and the matter shall be decided by the learned Controller after permitting the parties to respectively lead evidence in the case. The case shall be disposed of as expeditiously as possible by the learned Controller.
6. Mr. Muhammad Jamil points out that the appellant has been depositing rent with the Nazir of this Court. He may continue to deposit the rent with the Nazir of this Court but the same shall remain in deposit with the Nazir and as to the question whether which of the respondents would be entitled to withdraw the same the parties shall seek an order from the learned Controller in this regard.