' By this F.RA., order dated 15-5-1990 passed by the Ist Senior Civil Judge and Rent Controller, Karachi West, has been impugned by the landlord/appellant whose application under section 15 of the Sindh Rented Premises Ordinance was dismissed.
2. The appellant had filed the application for ejectment of the respondents, wherein he alleged that he is the owner of residential premises bearing No, 27/12-D, Orangi Township, Karachi. He had rented out the same to respondent No, 1 by an agreement of tenancy executed on 1-9-1981.
Respondent No, 1 did not pay any rent since September, 1987. In October, 1987 it came to the notice of the appellant that use of the said premises was converted into commercial and that it had been sublet to respondent No,2 without consent and knowledge of the appellant. Respondent No,2 had also filed a suit for specific performance falsely alleging that the appellant had agreed to sell the said premises to him. Respondent No,1 did not hotly contest the rent case, although he filed a written-statement wherein he admitted the tenancy as well as the handing over of the possession to respondent No,2, but alleged that the same was with the consent of the appellant. He also filed his affidavit-in-evidence and was cross-examined thereon. The ,real contest to the application was given by respondent No,2, who denied the relationship of landlord and tenant between the parties alleging that the appellant had agreed to sell the premises in question for a consideration of Rs, 80,000 to him through respondent No,1 and Muzaffar Ali, out of which Rs,70,000 were paid by respondent No,2 to the appellant through the abovementioned two persons. Respondent No,2 also filed a suit for specific performance of contract against the appellant/applicant in the Court of Ist Senior Civil Judge, Karachi West which is still pending. He has further alleged that he has raised construction and established a factory therein at a cost of Rs,20,000. Respondent No,2 approached the appellant for registration of Sale-Deed which he refused on 10-6-1988. The issue as to the relationship of landlord and tenant between the parties came up for consideration before the learned Controller alongwith other issues and the same was decided against the appellant.
3. I have heard Mr. Rasheed A. Rizvi, learned counsel for the appellant and Mr. Syed Mehmoodul Hassan, learned counsel for respondent No,2. Mr. Khursheed Haider Naqvi, learned counsel for respondent No, 1 has chosen to remain absent and therefore, could not address the Court.
4. The appellant had produced the registered Lease-Deed in respect of the premises in question granted to him by K.D.A. The genuineness of this document has not been denied or disputed by respondent No,2. On the contrary he claims his title from the appellant on the basis of an oral agreement of purchase referred to above. The appellant has also produced the agreement of rent signed by respondent No,1 which has been admitted by respondent No,1. Respondent No,2 has, however, attacked this agreement as bogus and prepared with intent to defeat his claim. The appellant has also produced the registered Mortgage-Deed of the property which he had mortgaged with Habib Bank Ltd. and obtained a loan of Rs,87,000 after the said transfer of property in his favour by K.DA. on 8-10-1980. It may be mentioned that this was a date after the alleged oral sale made by the appellant in favour of respondent No,2. Respondent No,2 has not produced any agreement of sale. He has alleged that the said agreement was oral. He has not even produced any receipt for payment of Rs,70,000. Respondent No,2 has based his case on pieces of circumstantial evidence such as that the suit for specific performance was filed by him before the application under section 15 of S.R.P.O. of the appellant. Additionally he has pointed out that the appellant did not raise any objection as to his having occupied the premises for a long time. These circumstances cannot weigh against the documentary evidence produced by the appellant particularly when respondent No,2 himself has admitted that he was given the house by the appellant through respondent No,1.
5. Mr. Syed Mehmoodul Hassan has relied upon PLD 1992 Kar. 406 Haji Faqir Muhammad v. Khuda Bux and has contended that the onus to prove that there was relationship of landlord and tenant between the parties was on the landlord and the landlord had failed to discharge the same. I am unable to agree with the contention of Mr. Syed Mehmoodul Hassan. The evidence mentioned by me above proves to my satisfaction that the appellant was owner of the premises in dispute and that he had rented it out to respondent No,1, who had unauthorisedly handed it over to respondent No,2. By now it is a settled law that a tenant setting up plea of agreement of sale against a landlord and filing suit for specific performance in a Civil Court, was not entitled to remain in occupation of the premises till he could establish his claim of ownership. Reference in this connection may be made to PLD 1991 SC 242 Iqbal v. Rabia Bibi and another.
' In view of the above, 1 allow this appeal, set aside the impugned order and direct the respondents to hand over the vacant possession of the premises to the appellant within 60 days. This concession of 60 days will be available to them only if they pay the arrears of rent forthwith.