1. ' The facts briefly are that the present appellant is the landlord of the building on commercial Plot No, 22/A, Commercial Area, Block-2, PECHS, Karachi, which comprises of a shop on the ground floor and a flat on the first floor. The present respondent is the tenant of the appellant in the said first floor at a monthly rent of Rs, 400. On 21-4-1983 the appellant had filed Rent Case No, 1627 of 1983 for the ejectment of the respondent on the following three grounds:
(i) The respondent had defaulted in payment of rent since December, 1981.
(ii) The respondent has sublet one of the rooms of the said flat to some other person.
(iii) The respondent has converted the store room into bath room and illegally raised the height of the wall of the balcony without permission of the landlord.
2. ' The respondent filed the written statement denying the above allegations. He contended that the rent was being deposited by him in Court in Misc. Rent Case No, 5448/81 after the appellant refused to accept the money order. The respondent also denied that he had sublet the premises to another person but in fact his nephew Muhammad Saleem was living with him who was a member of his family. He also denied that he had converted the store room into a bath room and further stated that he had raised the said balcony by one foot by way of adding of wooden Jaffri, in order to provide Pardah. The rent case was then numbered as Rent Case No, 1863 of 1985.
3. ' On the above pleadings of the- parties, the Rent Controller framed the following points for determination: A. Whether the opponent has committed default in payment of rent from the month of December, 1981?
4. B. Whether the opponent has sublet the premises in question to some other person?
5. C. Whether the opponent has impaired the utility and value of the premises in question?
6. D. What should the order be?
7. ' The first three points were answered in negative against the appellant and his rent case was dismissed. Being aggrieved, the appellant has preferred the present appeal.
8. ' I have heard the learned counsel for the parties and perused the record of the rent case.
9. ' Mr. Abdul Naseer Khan, the learned counsel for the appellant has stated that he does not press the ground of default but would press the other two grounds. He has referred to the affidavit-in- evidence filed by the appellant in which the appellant had stated that the respondent has given possession of one of the rooms of the flat in dispute to some one else and if that some one else is Muhammad Saleem, the nephew of the respondent, then he is not a member of the family of the respondent and, therefore, parting with the possession of one room to Muhammed Saleem would amount to subletting. He has further submitted that in view of the admission of the respondent that possession of one room was given to Muhammed Saleem, the burden was on the respondent to prove that it did not amount to sub-letting. He has placed reliance on the case of Masroor Hassan and others v. Abbas All Khan (1981 CLC 669) wherein it was held that once landlord proved some body else using rented premises either exclusively or jointly with the tenant, the burden of proof would shift on tenant to explain relationship between him and the user of the tenement. The facts of this case are quite distinguishable as with the facts of the case in hand. In the above case the rented premises was a shop where a homeopathic practitioner was running his practice and he had allowed another person also to use the same premises where that other person was carrying ou his own practice. As against this, in the case in hand, it has been explained by the tenant/respondent that the other person in joint occupation with him is his nephew, a member of the family. Thus the above-cited case would not be applicable to the present case. The other case cited by the learned counsel for the appellant is that of Ghulam Muhammed and others v. Haji Muhammed Jameel (1982 CLC 1042). This case will not be helpful for the appellant as in this case the original tenant had himself moved away from the tenement and some stranger was allowed by him to occupy the same, which of course would constitute sub-letting. The facts of the case in hand are different.
10. ' As against this Mr. Nazirullah, the learned counsel for the respondent has submitted that a nephew is a member of the family who had been residing with the respondent. He has taken me through the affidavits-in-evidence filed by the appellant as well as respondent and their cross- examination. It has come in evidence of the respondent that this Muhammed Saleem was also married and had expired two years prior to the date of giving evidence by the present respondent, leaving behind a widow and children. This could be the reason that the said Muhammed Saleem was not examined in evidence by the respondent. However, admittedly the said widow and the children are now residing with the respondent and they being family members cannot be treated as sub-lessees. He has placed reliance on the case of Pakistan Food Manufacturers v. Sadiq Ishaque and others (1992 CLC 482). In this case a learned Single Judge of this Court has observed as under; "Here also I find it difficult to agree with the learned Rent Controller, as no evidence is available on record to establish that the appellant No,1 has left the demised premises and conferred or assigned its exclusive possession or enjoyment upon the appellant No,
2. No such suggestion was even made to the witnesses of the appellants during their cross-examination. On the contrary, in the ejectment application the respondents themselves mentioned the address of the appellant to be of the demised premises; and the service of the notice was duly effected on it at the given address. Under the aforesaid facts and circumstances of the case, no subletting of the demised premises by the appellant No, 1 to the appellant No, 2 is proved. I am of the opinion that a lessee, who remains in the legal and physical possession of the demised premises, to him but simply allows some person also to use the demised premises, cannot be held to have sublet the premises.
11. In order to create a sub-lease, the right to exclusive possession and enjoyment of the property should be conferred or assigned upon the sub-lessee. In this view of the matter, the appellant No, 1 cannot be said to have committed breach of the agreement of tenancy in respect of subletting thereby giving a right to the respondents to seek its eviction on that ground. The finding of the learned Rent Controller on this issue is, therefore, reversed and the appeal is allowed."
12. ' He has also placed reliance on the case of Mst. Tooba Taliby v. Sultan Lakhdir and another (1984 M LD 74) wherein my Lord Justice. Saleem Akhtar (as his Lordship then was) has referred to "The Transfer of Property Act" by Sir Hari Singh, Vol. IV, VIIth Edition at page 3611 wherein the distinction between sub-tenant and licensee was commented upon as follows:-- "There is a world of difference between a sub-tenant and a licensee. In a sub-tenancy, the sub- tenant has interest in the property but in the case of a licence the licensee has the permissible use of the property and the legal possession continues with the owner. Even where a party is in exclusive possession of property circumstances may negative that its possessor was a tenant....The real test to determine subletting is whether the tenant has walked out of the premises and has handed over exclusive possession and control of the same to the sub-tenant."
13. ' In the case it was observed b) his Lordship as under:--- "From the perusal of the rules laid down it seems clear that in order to establish that a person is a sub-tenant it is necessary to prove that the tenant has parted with the possession and has created an interest in the estate."
14. ' In view of above discussion, it can be concluded that sub-tenancy cannot be equated with a licence because the sub-tenancy is quite different from the permissive occupation of the premises. As observed above, in case of sub tenancy it is incumbent upon the landlord to show that the tenant had divested himself of the possession of the premises in dispute and some one else had been inducted therein and was enjoying the benefits of the premises. Mere fact that a relation is living with the tenant in the premises would not amount to sub-tenancy unless it is shown that the said relation was paying rent to the tenant for the portion in his occupation. In the present case no such allegation has even been made by the landlord. In these circumstances I do not find any reason to disagree with the findings of the Rent Controller on Issue No,2.
15. ' As regards the third point in the case, the learned counsel for the appellant has not pressed the allegation with regard to conversion of store room into bath room but he has submitted that by raising Jaffri over the balcony without permission of the landlord, the respondent has changed the structure of the premises and, therefore, is liable to ejectment. A plain reference to section 15(2)(iv) of the Ordinance would show that ejectment could be ordered where the tenant has committed some act which has materially impaired the value and utility of the premises. In the present case the cross-examination on the affidavit-in-evidence shows that there was already a three feet wooden Jaffri in the balcony; and that the respondent has raised it by further one foot. It is not shown by the appellant as to how the value and utility of the premises has been materially affected by the said act of the respondent. The burden of proof lay on the appellant but he has failed to discharge the same. He has not examined any architect or any other person dealing with estate or property. Reliance may be placed on the case of Muhammed Munir Bin Ismail v. Miss Zeenat Qureshi (1989 CLC 1967). From these facts it is concluded that the appellant has failed to prove that the respondent had committed any act which has impaired the value and utility of the premises.
16. ' In this view of the matter, the present appeal fails and is accordingly dismissed with no order as to costs.