NAZIM HUSSAIN SIDDIQUE, J.- The Appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the Order dated 24.3.1993 passed by Mrs. Akhtar A. Choudhry learned VIIth Rent Controller Karachi, South, whereby the Eviction Application of the appellant was dismissed.
The facts relevant for decision of this appeal are as follows:-
2. Appellant Mst. Ghazala Yasmeen on 17.8.1988 had filed Eviction Application No. 1265 of 1988 against respondent Muhammad Rafique for his eviction from the premises Viz: Flat No. 13, on 3rd Floor of Saeeda House on Plot No. AM 369 and 370 Shahra-e-Liaquat, near Frere Market, Karachi on the ground that she required said premises for personal use of herself and of her family members.
It was her case that, she, her husband and their three children were living in a small portion of a single storey house built on 80 sq. Yds, belonging to her father-in-law in which besides her family members the family members of her father-in-law were also residing. She claimed that the accommodation in her possession was insufficient for her needs. The respondent has challenged the maintainability of the application and stated that he had taken said premises in the year 1972/73 from one Muhammad All on pugree and at that time Khalilur Rehman was its owner, who had charge huge amount from him for accepting him as tenant and for the change of rent receipt in his name. Further, it is the case of the respondent that said Khalilur Rehman had sold various Flats in the building to the other persons and also approached him to purchase said premises on ownership basis and demanded exorbitant amount as it price and since he declined to pay said amount, he (Khalilur Rehman) as a fraudulent device, in order to secure eviction of the respondent, gifted said premises to the appellant showing her as his niece. According to the respondent, said Khalilur Rehman is still defacto owner of the premises and the appellant has only been introduced for getting him evicted on the ground of personal requirement of the appellant.
3. At Trial, the appellant filed her affidavit and was cross-examined. Khalilur Rehman was also examined as her witness. On behalf of the- respondent Haji Sattar, who is his father-in-law and attorney, filed his affidavit-in-evidence and was cross-examined.
From the pleading of the parties, learned Rent Controller settled the following issues:-
1. Whether Application is barred by the provisions of Sindh Rented Premises Ordinance, 1979 Transfer of Property Act and Civil Procedure Code?
2. Whether the Applicant requires the disputed premises for her personal bona fide use?
3. What should the Order be?
4. For Issue No.1 learned Rent Controller held that the Application was maintainable. For Issue No. 2 she reached the conclusion that appellant does not require the premises in good faith for her own use. Consequently, the Application was dismissed.
5. It is contended on behalf of the appellant that the finding of learned Rent Controller that eviction application was filed by the appellant at the behest of the Ex-owner is incorrect and contrary to the material available on record. The contention is sound and must prevail. The appellant, in her affidavit-in-evidence, has stated that neither she nor any member of her family is the owner of any other property, except the premises in question, and that she alongwith the members of her family is residing in a very small portion of a house, as mentioned earlier. In cross-examination, she has denied the suggestion that the house in which she is residing presently belongs to her husband.
She admitted that her father-in-law is having joint family system. Her witness Khalilur Rehman deposed that appellant has no other property except the premises in question and she is residing presently with her father-in-law and the accommodation in her possession is insufficient for her requirements. He has specifically stated that appellant is the daughter of his brother and he gifted said premises to her. Respondent's witness Haji Sattar, in cross-examination, stated that he does' not know if the appellant or her husband is the owner of any other properly.
6. From the evidence available on record it stands proved that the appellant has no other property, except the premises in question. Learned Rent Controller dis-believed her on the ground that she, in her cross-examination, stated that she had not seen said premises and that she had never requested or insisted her uncle to gift he 'H' said premises. So far the question of validity of gift is concerned, it is noted that the donor clearly deposed that he gifted said premises to the appellant.
The respondent being a tenant has no locus standi to challenge the validity of said gift, nor the question of its validity could be determined by the Rent Controller, being a forum of limited jurisdiction. Accordingly, I hold that the eviction application was filed by the appellant due to her own personal needs and not at the behest of the Ex-owner.
7. Next point to be considered whether $he appellant presently being residing alongwith her father- in-law can claim. Eviction of the respondent on the ground of her personal bona fide use. Mr. Abdul Sattar Memon, learned counsel for the respondent vehemently argued that the appellant is residing with her father- in-law, who has joint family, and the present accommodation is enough for their needs and no separate accommodation is required by her. I think there is no force in this plea. Even it is assumed that father-in-law of the appellant has joint family system, yet, this fact by itself is not sufficient to hold that a member of the joint family cannot opt for separate living. The appellant wants to live separately and she cannot be forced to continue to live with her father-in- law. The point that landlord if residing with his father-mother or relatives could claim possession of the rented premises for his/her own use or not, -had come under discussion in various cases including (1) Suleman Ghazi Vs. Ghulam Hayder and another, 1983 SCMR 1058 (2) Saeed Mian Ansari and another Vs. Aqeel Ahmed Siddiqui 1983 SCMR 1087 (3) Abdul Latif Vs. Faqeer Muhammad 1982.SCMR 1046 (4) Nikhat Riaz Vs. Manzoor Hassan 1991 SCMR 1434. The ratio of above quoted cases is if landlord has no other premises of his own and is residing with his father/mother, or in the rented premises, is entitled to claim possession on the ground of his own personal bona fide use.
8. Once it is established that landlord is not the owner of any house, except the one which is occupied by a tenant, the plea that the premises presently occupied by him as a tenant, or in any other capacity, is much more suitable for his requirements would be immaterial and not enough to deprive him from seeking eviction of his tenant, despite the fact that his own premises may be comparatively of inferior category.
9. Mr. Abdul Sattar Memon, learned counsel for the respondent cited (1) Mst. Ashraf Alia Vs. Dr. Asif Majeed 1991 CLC-53, Karachi (2) Syed Abdul Basit Vs. Mrs. Mubarak 1991 CLC-1226, Karachi (3) Qazi Abdul Qayyum Vs. Khursheed Nisar 1991 CLC-913, Karachi (4) Muhammad Yusuf and another Vs. Muhammad Ibrahim Khandwani PLD 1991 Karachi-226 (5) Syed Wahid Hussain Vs. Abdullah Bhatti 1989 MLD-581, Karachi (6) Mazhar Hussain and another Vs. Mukhtar Begum PLD 1988 Quella-38 (7)
Ahmed Tanveer Vs. Hakim Bakers and Confectioners 1987 MLD-2092, Karachi (8) Mst. Saira Bai Vs. Syed Anisur Rahman 1989 SCMR-1366 to contend that landlord is required to establish bona fide need and mere wish, convenience, whim or fancy of landlord would not be enough to show that he requires the premises in good faith. The ration of these cases is that mere desire to possess rented premises is not enough to seek eviction, but simultaneously it shall be established by irrefutable evidence that he requires the premises in good faith, which means with honesty and sincerity.
From the above discussion, it is evident that appellant requires the premises in good faith. Above cited cases are not applicable to the instant case.
In consequence, the appeal is allow with no order as to costs. The respondent is directed to hand over the vacant possession of the premises in question to the appellant within 4 months from now.