JUDGMENT ABDUL RAHIM KAZI, J.- This appeal has been filed challenging the orders passed by the learned IIlrd Senior Civil Judge/Rent Controller, Karachi t Last) in Rent Case No. 237/87 whereby the rent case filed by the present appellant was dismissed.
2. Briefly the facts relevant to the present' case are that the present appellant who claims to be a retired Government servant and a permanent resident of Shikarpur had owned a Bungalow bearing No. 140 Faran Co-operative Housing Society, Karachi having purchased the same from one Ebrahim Marker through a Conveyance Deed on 10.3.1976. According to the applicant, he rented out of the said bungalow to P.l.D.C., Karachi on rent at the rate of Rs. 5,000/- per month for a period of two years; and that the same was occupied by the General Manager, PI DC Shaikh Abbas, who incidentaly happened to be the younger brother of the applicant; and that present respondent is the wife of said Shaikh Abbas. According to the applicant, the rent agreement with P.l.D.C. Was terminated on 23rd July, 1979 which also the date on which the services of Shaikh Abbas were terminated by P.l.D.C.; and that thereafter Shaikh Abbas left for Saudi Arabia in connection with a job while the opponent continued to occupy the said bungalow. He further claims that the opponent was inducted by him as a tenant in the said bungalow and she paid the rent for two months i.e. August and September, 1977 and thereafter she stopped paying the rent. Consequently, the applicant filed a rent case against her being Rent Case No. 4882 of 1983 while the opponent filed a civil suit in the High Court of Smdh, Karachi for declaration of her title claiming to be the purchaser of the said bungalow being Suit No. 103 of 1985. The applicant has further submitted dial in suit, a stay order was granted whereby the proceedings in the rent case were siayetl and, theofore, the same was not persuaded by the applicant. However, the said civil suit was dismissed as withdrawn by an order by the High Court of Sindh, Karachi passed on 30.9.1986. The said rent case filed by the applicant was also consequently dismissed for non-prosecution. Thereafter the appellant filed the present rent case on the grounds of default.
3. The opponent contested the rent case denying the relationship of landlord and tenant. Her,case is that her husband Shaikh Abbas was the General Attorney of the present appellant and on the basis of the General Power of Attorney he sold the said bungalow to her through a registered Sale Deed executed on 30.7.1977. The Rent Controller on these pleadings of the parties settled the following issues:
(i) Whether there exists any relationship of landlord and tenant between the parties?
(ii) Whether opponent committed wilful default in payment of rent?
(iii) What should the order be?
The applicant filed his on. Affidavit-in-evidence and was cross-examined while the opponent also filed her affidavit-in-evidence and was cross-examined. She also filed affidavit-in-evidence of Khurshid Ali, the brother of the present appellant, who was also cross-examined. The learned Rent Controller answering the first issue against the appellant dismissed the rent case'. Being aggrieved, the appellant has preferred the present appeal.
4. Mr. G.M. Paryani, the learned counsel for the appellant has submitted dial the findings of the learned Rent Controller on the first issue is erroneous inasmuch as it is an admitted position that the present appellant was the owner of the said bungalow which he had rented out Jo the P.l.D.C.
And that the present respondent alongwith her husband Shaikh Abbas came in occupation of the said bungalow because Shaikh Abbas was the General Manger of the P.l.D.C. He has furl her submitted that after termination of tenancy with the PIDC on 23.7.1977, he inducted the present respondent as his tenant and received the rent for the months of August and September, 1977 from her. The learned counsel has submitted that th> refore; for all purposes the present respondent is his tenant and it is admitted r isition that she has committed default in payment of rent and, therefore, liable to be ejected. As regards the purchase of the bungalow by the respondent, the learned counsel for the appellant has submitted that no doubt the present appellant had constituted the said Shaikh Abbas as his General Attorney through a General Power of Attorney executed on 26.2.1976 which is paced on record by the respondent alongwith her affidavit-in evidence but he had revoked the said Power, of Attorney on II 7.1977 and, therefore, any Sale Deed executed by Shaikh Abbas on the si l ength of this Power/of Attorney would be a void Sale Deed or a Sale Deed without any competent authority. He has placed reliance on the case of Fida Muhammad v. Pir Muhammad Khan (PLD 1985 S.C. 341) wherein their Lordships-- have field that merely on account of description "generally" a Power of Attorney tilled as a General Power of Attorney would not mean and include the power to alienate/dispose of the property of principal; and that clear separate clause devoted to said object is a must. It has also been held by their Lordships that Courts have to be vigilant particularly when allegation by principal is of fraud or misrepresentation. In the present case also the learned counsel for the appellant has alleged fraud. In view of above principles, I have perused the General Power of Attorney and also the letter of revocation which are placed by the respective parties .-on the record in the lower Court. The.
Power of Attorney is executed on 26.2.1976 and in Clause No. 3 of the' said" Power of Attorney express authority to sell or purchase, mortgage, leased out all or any property of the principal is vested in the Attorney Shaikh Abbas. Whereas letter of revocation of the said Power of Attorney shows that the same was addressed to the Sub-Registrar, Karachi and is signed by Shaikh Mushtaq Ali, the appellant. However, this letter does not show if it was given by or sent through any modes of the postal communications. This letter does not have any acknowledgement on behalf of Sub-Register nor arty postal or acknowledgement receipt is attached thereto. Hence it cannot be assumed to have been proved as required in law nor it can be assumed that it was received by the Registrar before execution of the impugned Sale-Deed on 30th July, 1977. In these circumstances no conclusive finding can be given if the authority invested in the Attorney was revoked by the principal. As argued by the learned counsel for the respondent, this letter could have been prepared subsequently to substantiate the contention of the appellant. Now, the respondent has a registered Sale Deed in her favour as' against the oral word of the appellant. The appellant has also tailed to prove that he had indicated the present respondent as his tenant. According to the appellant's on. Case as mentioned in the rent application as well as his affidavit-in- evidence, the tenancy of the P.l.D.C. Was terminated on 23.7.1977 and it is also admitted by him that P.l.D.C.
Handed over the possession of the said bungalow to him on that date. The learned counsel for the appellant has. However, submitted that handing over the of the possession was only on paper but factually the said Shaikh Abbas and his wife continued to be in occupation of the bungalow. It may be observed that till 23.7.1977 Shaikh Abbas was occupying this bungalow in his capacity as employee of P.l.D.C. And the P.l.D.C. Having handed over the possession, the right of SHaikh Abbas ceased form that date. If the appellant had alleged Shaikh Abbas to occupy the said bungalow beyond this date it could'be by way of licence or as a' tenant as claimed by the appellant. However, the very contention of the appellant that the rent was paid to him for August and September.
1 '>77 by the present respondent, itself implies that for the period 23,7.1077 till 31.7.1977 the respondent was not his tenant. It may also be observed that the appellant did not place the counter-foils or the rent receipts of these two months on the record as he admits that the rent receipts were not issued by him. He has not examined any other witness tq support his contention. On the contrary l.)W Khurshid Ali, the brother of the appellant himself, has been examined by the respondent, who has fully supported the case of the respondent in his affidavit and cross-examination. A mere occupation by the person would not create the relationship of landlord and tenant. Such relationship could be created only through some oral or written agreement or by a statute or by conduct of the parties. k.L.R. C.< Reliance is placed on the case of Haji Fakir Muhammad v. Hazratullah (1989 CLC 252). In the present case, there is no written agreement, no rent receipts or counterfoils are on record nor the appellant has brought in evidence or on record any evidence to support his contention that there was oral agreement of tenancy between the* parties. As against this, there is a registered document in favour of the respondent duly executed by an authroised Attorney. However, if any fraud is played upon the appellant, the best course for him would have been to file a civil suit for cancellation of the Sale Deed which stands in his way.
In view of the above discussion, I do not find any reason to disagree with the findings of the learned Rent Controller. The appeal is accordingly dismissed with no order as to costs.
Above are the reasons for the short order announced in Court on 20th August, 1992.