1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance), is directed against an order of eviction dated 6-10-1991 passed by learned First Rent Controller, Larkana directing ejectment of appellant No,1 from two shops situated on C.S. Nos.1507/2-E and 1507/2-F Ward-C, Larkana on the ground of default in payment of rent and bona tide personal requirement of the premises for use and occupation of the respondents.
2. ' Property under dispute was transfe'rred to Muhammad Shaukat Hussain (since dead) in public auction by the Settlement Authorities when a P.T.O was issued in his favour on 28-4-1961. It was followed by issuance of a P.T.D dated 4-11-1970. Since appellant No,1 was occupying the demised premises prior to the transfer of premises in favour of deceased respondent, he served him with statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 calling upon him to pay rent to him with effect from the date of transfer. As the said appellant failed to respond to the demand of the landlord, he filed eviction application on 25-4-1972 against him on the ground of default in payment of rent with effect from the date of transfer and on the ground of personal requirement of the premises for bona fide use and occupation of the landlord.
3. ' Eviction application was initially filed against Sarbuland Khan who was the recorded tenant of the premises. He filed a written statement challenging the transfer of property in favour of the landlord and denied the rate of rent. He denied the receipt of notice and the grounds for his eviction.
4. Alternatively he pleaded that even if the landlord had issued any notice to him it was illegal as rent demanded from him was at a rate which was not due.
5. ' In view of the denial of service of statutory notice, learned Rent Controller framed a preliminary issue on this point and by order dated 23-5-1978 held that notice was duly served on the tenant.
6. This order was impugned in Civil Miscellaneous Appeal No,42 of 1979 which was dismissed vide order dated 9-12-1980 by an Additional District Judge, Larkana.
7. ' Thereafter, both the parties filed their affidavits in evidence in support of their respective contentions. While the witness appearing for the respondents was subjected to cross-examination neither Sarbuland Khan nor his witness Samad Khan appeared in the witness-box for the purpose of cross-examination with the result that their evidence could not be considered in the eyes of law.
8. On assessm ent of evidence learned Controller by order dated 2711-1983 held that rent of the shop on C. No,1507/2-E was Rs,40 per month whereas the rent for second shop was Rs,30 per month. He answered issues relating to default and personal requirement of the premises in favour of the landlord. On the point of jurisdiction he concluded that since the tenant was duly served with statutory notice, he had the jurisdiction to proceed with the ejectment application.
9. ' This order again was impugned in F.RA No, 102 of 1983 before the Sukkur Bench of this Court which was decided by Saeed-uz-Zaman Siddiqui, J. (as his Lordship then was). It seems that during the pendency of F.RA, appellant filed an application for further enquiry alongwith true copy of an order dated 20-2-1985 passed by the Chairman, Evacuee Trust Property Board cancelling the transfer in favour of the landlord on the ground that the demised premises were evacuee trust property. In the circumstances, ejectment order was set aside and the case was remanded to the Controller vide judgment dated 8-10-1985 with direction to give opportunity to both the parties to lead evidence on the issue "whether the respondent still had subsisting title in the property?"
10. ' During the pendency of F.R.A. It seems that original tenant Surbuland Khan died and was survived by appellant Abdul Rashid and three brothers namely Abdul Samand, Aji-Azrat and Abdul Rahim who were substituted in his place. After the remand of the case sometimes in 1988 appellant No,2 was joined as party on the application of appellant No,1. Parties adduced evidence in support of their respective contentions. On assessment of their evidence learned Controller by the order impugned in this appeal held that respondent landlord still has a subsisting right in the property.
11. He decided issues relating to default in payment of rent and requirement of the premises for personal bona fide use of the respondents in their favour and ordered ejectment of appellant No,1.
12. It is as against this order that the present appeal was filed.
13. ' Learned counsel appearing for the appellants mainly contended that the demised premises were declared as evacuee trust property as such these could not have formed part of the evacuee pool and, therefore, could not be validly transferred in favour of any person by the Settlement Authorities. It may be pointed out that the order dated 20-2-1985, passed by the Chairman, Evacuee Trust Property Board was challenged before the Federal Government in revision which was set aside by the Federal Government and the case was remanded to the Chairman, Evacuee Trust Property Board for a fresh decision before whom it is still pending as stated by learned counsel for the appellants.
14. ' Learned counsel took pains to persuade this Court to accept the contention that the demised premises being evacuee 'trust property, learned Controller acted without jurisdiction in the matter because appellant No,1 happened to be the tenant of appellant No,2 and liable to pay rent to them.
15. From the evidence on record it would appear that appellants miserably failed to establish this plea of fact to the effect that the properties were in fact . Declared as evacuee trust property or vested in the Evacuee Trust Property Board constituted under Evacuee Trust Properties (Management and Disposal) Act, 1975. Learned counsel referred me to two photo copies of extracts from the property card in respect of the demised premises filed alongwith the memo. Of appeal. It is pertinent to note that these documents were not produced before the learned Controller who was seized of the matter. And directed to adjudicate upon the plea raised on behalf of the appellants that the respondents had no more a subsisting right and title to the property. While photo copies of these cards cannot be legally considered in this appeal as no leave was sought to produce the additional evidence at the stage of appeal, sole point raised and seriously agitated by Mr. Soomro is that in column No,3 of these extracts there appears a name Singh Parchark Sabha but against their entry a line appears to have been drawn. In last column of both the extracts name of Muhammad Shaukat Hussain son of Ikram Hussain as lessee has been recorded by transfer vide, P.T.D. No,7913 dated 4-11-1970 and order of City Survey Officer dated 13-11-1970. It may be pertinent to observe here that after the remand of case by the High Court respondents alongwith their evidence had produced certified copies of the extracts from property card showing their predcessor-in-interest Muhammad Shaukat Husssain to be the owner of the premises without mentioning the name of Singh Parchark Sabha. Since the appellants utterly failed to establish that the demised premises were declared and notified to the evacuee trust property as defined in Act XIII of 1975, there is hardly any merit in the contention raised at this stage that the respondents had no title to the property or that the learned Controller had no jurisdiction to proceed further with the ejectment application. In this connection learned counsel has referred to the judgments in the case of Rauf Ahmed v. Secretary to the Government of Pakistan and others (PLD 1991 Lahore 33)
16. Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 Supreme Court 698), Ghulam Hussain v. Abdul Rehman and 2 others (PLD 1982 Lahore 519), Devachand Muljimal v.
17. Deputy Settlement and Rehabilitation Commissioner and others (PLD 1965 Supreme Court 356), M/s. Friends Cloth Store and another v. Sayeda Amtul Aziz (PLD 1971 Karachi 739), Sahibzada Sayyed Muhammad Mateen Mirza v. Jehangir Rustomji (1971 SCM R 575), M/s. Shafique Hanif Limited v. B.C.C.I (Overseas Limited PLD 1993 Karachi 107) and Miss Shah Begum v. Ashraf All Naz (PLD 1993 Karachi 151). All these judgments deal with the question of property attached to a religious or charitable trust, jurisdiction of a Court and the powers of Evacuee Trust Property Board in respect of such properties. Since I have held above that the appellants miserably failed to establish that the properties were declared as such these judgments are hardly relevant and of no assistance to them.
18. There is another aspect of the case namely limited jurisdiction of the Controller under the rent laws.
19. It is well-settled that the Rent Controller is not a Court much less a Civil Court. He is a creation of the rent laws which only empower him to regulate relationship between landlord and a tenant without entering into intricate questions of ownership and title to properties. He is not authorised to decide a dispute as to title between the parties and the status thereof. Once a person is able to show that he is for the time being owner or landlord of the urban property and entitled to recover rent, Rent Controller assumes jurisdiction in the matter. In the event of a dispute as to title between the parties, Controller is under obligation to refer the parties to have the title cleared from a competent Court of law.
20. ' In the instant case it is admitted position that respondent's predecessor was transferred the demised premises by the Settlement Authorities and issued a P.T.O. No doubt at one stage transfer in his favour was cancelled but the said order was set aside with the natural consequence that his title stood revived and restored. It was, therefore, rightly held by the Controller that the respondents had a subsisting right and title to property. Learned counsel for the respondents referred to the case of Ghulam Hussain v. Shaukat Ali and others (1985 CLC 1997) in which the view taken was that the jurisdiction of the Rent Controller is limited and he has to exercise power within the framework of rent laws. Question whether the Rent Controller could entertain and adjudicate the pleas relating to the ownership rights should better be decided by the Civil Court of competent jurisdiction because such controversies or question regarding title to property fall beyond the purview of rent laws. In the case reported as Ibrahim v. Muhammad Siddique (1986 CLC 2037), it was held that mere agitation by the tenant before the Settlement Authorities challenging the order of transfer of premises would not absolve tenant from liability of paying rent to landlord deriving title of ownership under P.T.O and P.T.D. It was further held that failure of tenant to pay rent to such landlord would amount to wilful default in payment of rent. In the present case it is admitted that appellant No,1 at no point of time paid or tendered any amount of rent to the respondents and thereby he committed a wilful default. Even after decision relating to due service of statutory notice on him, he did not care to recognise the respondents as his landlords and in the F.R.A raised a frivolous plea that transfer in favour of the respondents had been cancelled. He had chosen to introduce additional pleas in his written statement after remand of the case in his amended written statement without the leave of the Controller which could not be legally considered. His conduct clearly demonstrates refusal to recognize and admit the respondents as his landlords which must entail a finding of wilful default on his part. Payment of rent by him to appellant No,2 if any would not absolve him of his statutory liability to pay rent to the actual landlord. Assuming for the sake of argument that the landlord had demanded rent at a higher rate, it was obligatory on him to pay rent at the rate which he was paying before the transfer of the property by the Settlement authorities. Non-payment of rent at all on his part and lack of evidence in rebuttal, renders his case hopeless and without any plausible defence.
21. On the issue relating to personal requirement, learned Controller has recorded a finding of fact that the requirement of the premises for the use of respondents was bona fide and in good faith.
22. Appellant No,1 did not rebut evidence on this issue and demonstrated gross negligence by not.
23. Controverting the case set up by the respondents. Filing of an affidavit in evidence by his brother Abdul Samad Khan would not tantamount to evidence in the eyes of law unless the deponent subjects himself to cross-examination by the opposite-party. This having not been done, affidavit- in-evidence filed by Abdul Samad Khan loses its importance in law and it is of no evidentiary value.
24. ' Lastly Mr: Abbasi learned counsel for the respondents urged that appellant No, 2 had no locus standi to join the proceedings as one of the parties. He referred me to the definition of "Evacuee Trust Property Board" in Act XIII of 1975 Under which Board shall be a body corporate by the aforesaid name having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable and to contract, and shall by the said name sue and be sued. Functions of the Board have been enumerated in section 4 of the said Act.
25. Appellant No,2 being a functionary employed in connection with the affairs of the Board, of his own has no legal entity in the eyes of law to act and appear on behalf of the Board unless expressly and specifically authorised by the Board. There is absolutely no material on record to indicate that the Board had authorised and directed appellant No,2 to join the proceedings on their behalf or to contest the eviction proceedings between two private citizens. No provision of law has been cited vesting any power or authority on this official to act of his own and to appear in the Court proceedings without proper authority of the Board. It would appear that both the appellants in collusion with each other have attempted to thwart the legal proceedings initiated against predecessor-in-interest of appellant No,1. I am, therefore, of the view that joinder of appellant No,2 to the proceedings itself was uncalled for in the circumstances.
26. ' In view of what has been stated above, there is no merit in this appeal which is hereby dismissed with costs. Appellant No,1 shall vacate the premises within 60 days and hand over peaceful possession to respondents failing which a writ of possession shall issue against him without any prior notice. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.