1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 5-1-1994 passed by V-Senior Civil Judge and Rent Controller, Karachi (Central), in Rent Case No,700/89, Mirza Bashir Ahmad Baig v. Rafiq Ahmad and another, whereby ejectment application under section 15 of the Rent Ordinance filed by the respondent/landlord was allowed and the appellant/tenant was ordered to vacate the premises in dispute within 60 days from the date of impugned order, hence this appeal.
2. ' Brief facts of the case are that the respondent/landlord filed an application under section 15 of Rent Restriction Ordinance, against the appellant/tenant stating therein that the property bearing No,R-21, Block-18, Federal 'B' Area, Gulberg, Karachi, initially belonged to Mst. Muhammadi Begum and after her death respondent inherited the said property of which the appellant was tenant at the rate of Rs,250 per month who failed to pay rent, electricity charges since April 1981 till the filing of ejectment application on 13-9-1989 therefore the appellant/tenant was defaulter in the payment of rent and further the respondent/landlord required the premises in dispute for his personal bona fide need, hence respondent/landlord was entitled under the law to evict the appellant/tenant from the premises. The appellant/tenant filed written statement stating therein that there was no relationship of landlord and tenant between the parties therefore the learned Rent Controller has no jurisdiction in the matter as the respondent/landlord has already sold the said premises as per agreement to sell dated 3-2-1987 wherein it was specifically stated that from the date of execution of sale-deed, the respondent/landlord would not be entitled to claim any rent from the appellant/tenant and further that after the grant of letter of administration in favour of respondent/landlord and application for cancellation and revocation of said grant, was filed before the District Judge, Karachi (West) under section 12(2), C.P.C. Read with section 263 of Succession Act in S.M.A. No,6/88 therefore the appellant was not liable to make payment of rent to the respondent since the date of execution of sale agreement and the respondent after the execution of sale agreement disappeared without giving any address and filed the present ejectment application which was liable to be dismissed.
3. ' The respondent filed his affidavit-in-evidence and also produced photo copy of power of attorney executed in his favour when Mst. Muhammadi Begum was alive as Exh.A/1, produced photocopy of the letter of administration dated 25-2-1988 as Exh.A/2, photocopy of mutation order of KDA dated 20th June, 1988 as Exh.A/3, photocopy of tenancy agreement dated 16-10-1972 executed between Mrs. Muhammadi Begum and one Rafiq Ahmad as Exh.A/4, respondent filed his affidavit in evidence and photocopy of agreement to sell dated 3-2-1987 as Exh.O/1, receipt acknowledging an amount of rupees two lacs as Exh.O/2, photocopy of N.I.C. Of Mst. Muhammadi Begum as Exh.0/3, photo copy of N.I.C. Of the respondent as Exh.O/4, filed affidavit in evidence of Muhammad Hussain and Muhammad Yousuf but were not produced for cross-examination. Both the parties were cross-examined by the counsel of the respective parties.
4. ' After recording the above evidence and hearing the learned counsel for the parties, the impugned judgment was passed against which present appeal has been preferred.
5. ' I have heard Mr. Abbas Ali, learned counsel for the appellant, and Mr. Akhtar Ali Mehmood, learned counsel for the respondent, and perused the record and proceedings of the case and the case-law cited by the respective counsel of the parties.
6. ' The contention of the learned counsel for the appellant is that the findings of the Rent Controller on all issues are erroneous in law as the appellant/tenant was not the tenant of the respondent and became prospective owner of the premises in question in view of the agreement to sell dated 3-2-1987 and further that the learned Rent Controller did not allow theappellant to produce two attesting witnesses, namely, Muhammad Hussain and Muhammad Yousuf of the agreement to sell for cross-examination and erroneously closed the side of the appellant. He has further contended that a suit for specific performance was pending therefore present ejectment application was not maintainable and the learned Rent Controller was not competent authority to solve the question of the title in respect of the premises in question. He has placed reliance upon Ali Muhammad v. Mst.
7. Azeemunnisa Begum (1986 CLC 576) in support of his contention.
8. ' Mr. Akhtar Ali Mehmood, learned counsel for the respondent, has argued that the Exh.O/1 was forged and fabricated document and the same was not confronted to the respondent therefore, the same cannot be considered as evidence in the case. He has argued that Mst. Muhammadi Begum expired on 16-3-1987 while the date of alleged agreement to sell is 3-2-1987 which is stated to have been executed by the respondent in the capacity of general attorney of deceased Mst.
9. Muhammadi Begum therefore in law the respondent ceased to be attorney of Mst. Muhammadi Begum, as soon as she breathed her last hence the alleged sale agreement executed by the respondent as attorney of Mst. Muhammadi Begum would not pass any title to the appellant under all circumstances. He has further argued that the appellant has failed to prove the alleged signatures on Exh.O/1 and Exh.0/2 of the respondent as required under Article 78 of Qanoon-e- Shahadat. He has also argued that the respondent has proved his case and the appellant has failed to rebut the evidence of the respondent therefore the impugned order of eviction passed against the appellant was legal and based on proper appreciation of the evidence on record. He has placed reliance upon Khan Muhammad Yousuf Khan Khattak v. S.M. Ayoub (PLD 1973 SC 160), M/s. Formost Trading Company v. M/s. Caledonian Insurance Company (PLD 1988 Karachi 131 D.B.), Bashir Ahmad v. Abdul Hamid and another (1983 SCMR 302), M/s. Al-Rehman International through Chairman v. Tariq Rashid (1993 CLC 2258), Muhammad Ihsan v. Muhammad Hafeez (1995 SCMR 1380) and Shamim Akhtar v. Muhammad Rashid (PLD 1989 SC 575) in support of his contentions.
10. ' The respondent Mirza Bashir Baig in paras.4 and 5 of the affidavit in evidence has stated that the respondent No,2/opponent No,1 Rafiq Ahmad was the tenant of the respondent No,1 in respect of the property in question at the monthly rent of Rs,250 as per agreement dated 16th October, 1972 Exh.A/4, executed between the original owner Mst. Muhammadi Begum and Rafiq Ahmad who failed to pay rent since April 1981 and in para.8 of the affidavit in evidence it has been stated that the respondent No,2/opponent No,1 has sublet the said premises to the appellant without permission of the respondent. The respondent No,1 has produced a photocopy of power of attorney registered on 2nd November 1982 executed on 1-11-1982 by Mst. Muhammadi Begum in favour of her brother i,e, respondent No,1, in respect of her building situated in Gulberg, Federal 'B' Area, Karachi, alongwith other properties, photo copy of letter of administration Exh.A/2 in respect of the property in question, photo copy of mutation order in favour of the respondent No,1 made by KDA dated 20th June 1988. The respondent No,1 in the cross-examination denied to have sold the property in question to the appellant and to have received sum of rupees two lacs from him and that the appellant/opponent No,2 was not his tenant but was sublettee. The appellant/opponent No,2 in his affidavit in evidence in para.4 stated that the respondent No,1 as attorney of Mst.
11. Muhammadi Begum sold the house in question to him for total consideration of rupees two lacs and fifty thousand as per sale agreement dated 3-2-1987 and paid an amount of rupees two lacs to respondent in presence of witnesses photocopy of which has been filed as Exh.O/1 and in para.5 of his affidavit-in-evidence it has been stated that within six months, sale-deed was to be executed and remaining balance of Rs,50,000 was to be paid. In the cross-examination the appellant/opponent No,2 admitted that Mst. Muhammadi Begum was the previous original owner of the premises in question and the appellant/opponent No,2 showed his ignorance if Mst.
12. Muhammadi Begum had let out previously the said premises to one Rafiq Ahmad. The appellant/opponent No,2 admitted in the cross-examination that the respondent No,1 has got letter of administration from the District Judge (West), Karachi where he had also filed objection but the same were overruled. He stated that he has filed suit for specific performance after expiry of five years of the alleged agreement to sell and denied that the said agreement to sell Exh.O/1 was forged so also the alleged receipt Exh.0/2.
13. ' It would appear from the above evidence that after the death of Mst. Muhammadi Begum, the original owner, the respondent No,1 Mirza Bashir Baig applied for letter of administration in respect of the property left by the deceased which was accordingly granted as per Exh.A/2 and in the said proceeding as pei admission of the appellant/opponent No,2, he filed objection to the grant of letter of administration to the respondent No,1 but his objection was overruled. It would also appear from the Exh.A/3 that the mutation has been effected in favour of Mirza Bashir Baig with the restriction that the property in question would not be sold, transferred, disposed of without the permission of the Court. The appellant/opponent No,2 admitted in the cross-examination that originally property belonged to Mst. Muhammadi Begum and this fact also is corroborated from the alleged agreement to sell Exh.O/1 wherein appellant/opponent No,2 himself admitted that Mst.
14. Muhammadi Begum was the owner and he got sale agreement allegedly executed through the respondent No,1 as her general power of attorney. All these admitted facts would show that Mst.
15. Muhammadi Begum was the owner and she executed tenancy agreement in favour of Rafiq Ahmad who as per statement of the respondent No,1 was the tenant and he sublet the said premises to the appellant/opponent No,2. The evidence on the said issue has not been shaken in the cross-examination of the respondent No,1 and no reliable satisfactory evidence in rebuttal has been produced by the appellant to disprove that the Rafiq Ahmad was not the tenant of the premises in question and that he was put into possession by Rafiq Ahmad. So far the alleged sale agreement Exh.O/1 the attesting witnesses of the same have not been produced and further the execution of Exh.O/1 sale agreement has been denied in favour of the appellant/opponent No,2 so also having received a sum of Rs,2,00,000 (Rupees two lacs) from the appellant towards the sale consideration of the premises in question. The onus to prove the said agreement to sell Exh.O/1 was upon the appellant/opponent No,2 to prove the same but neither he examined the attesting witnesses nor he sent the alleged agreement of sale and alleged receipt for comparison of the signatures on the said documents of the respondent for expert opinion to Finger Print Expert who could have been called to corroborate the testimony of appellant in respect of the signatures of the respondent No,1 over Exh.O/1 and Exh.O/2.
16. Mere fact that appellant has produced an unregistered alleged agreement to sell stating therein that an amount of Rs,2 lacs was passed on, out of total sale consideration of Rs,2,50,000 to the respondent No,1 would not be sufficient to confer title upon him in respect of the property in question. It would not out of place to state that the general power of attorney executed by Mst.
17. Muhammadi Begum which was in favour of respondent did not authorise the respondent to sell the property in question therefore no title could have passed on to the appellant on the basis of alleged agreement. The filing of suit for specific performance by the appellant/opponent No,2 would also not disentitle the respondent No,1 from getting possession in respect of the property of which he came in possession through the original tenant Rafiq Ahmad as such his possession would be unauthorised. Reliance is placed upon Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242) wherein Supreme Court of Pakistan observed at page 245:-- "Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time--even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate--though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani (PLD 1984 SC 17), Allah Yar and others v. Additional District Judge and others (1984 SCMR 741) and Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1)."
18. ' Reliance is also made to Dilbar Khan v. Saifullah (1990 CLC 1437) wherein learned Judge in Chamber observed at page 1438:- "The learned counsel for the appellant contended that in view of 1983 SCMR 1064, 1987 CLC 148 and 1986 CLC 2862 as the appellant had pleaded that relationship of landlord and tenant did not exist between the parties the learned Controller should have either stayed the proceeding or dismissed the application and allowed the controversy to be decided by the competent Civil Court. The principle deduced from these authorities is not that the moment tenant denies the relationship of landlord and tenant and claims ownership, the Controller should stay the proceeding or dismiss it.
19. It is the duty of the tenant to prima facie establish with strong evidence that the relationship of landlord and tenant does not exist. Unless a strong evidence, is brought on record the Controller may proceed with the case to decide the relationship of landlord and tenant. In the present case as discussed above the agreement has not been proved."
20. ' Reference is also made to S.M. Hatat v. Commodore (Retd.) Ikramul Haq Malik and another (1984 CLC 3176) at page 3186 wherein learned Judge in Chamber has observed:-- ".... In my view, the admitted facts do not create any doubt on the title of respondent No,1 has been established beyond any reasonable doubt. The defence of the appellant that he or his wife have any right in the flat is without any merit. In these circumstances it was not required of the Rent Controller that he should have dismissed the ejectment case and referred the respondent No,1 to establish his title in a Civil Court. In this case, the Rent Controller was competent to go into the question of title and he correctly decided the issue of relationship of the landlord and tenant in favour of respondent No,1 ."
21. There is no suggestion in negative in the cross-examination of the respondent that Rafiq Ahmad was not the tenant and that appellant was not the sub-lettee of Rafiq Ahmad. The appellant is not the tenant as stated above but he has been put into possession by the original tenant Rafiq Ahmad without the permission of landlady and he has also not stated that he has paid any rent in respect of the property in question but has claimed now to be in possession on the basis of alleged sale agreement Exh.O/1 and receipt Exh.0/2 which would not convey any right, title or interest in favour of the appellant in view of reasons stated above. It will also be not out of place to state that the original tenant Rafiq Ahmad has not appealed against the impugned judgment. In view of the aforesaid evidence, reasonings and case-law cited above there would be no need to give any finding on the rest of the issues. I do not find substance in the contentions of the learned counsel for the appellant. The impugned, order is legal, based on proper appreciation of the evidence on record therefore appeal has no merits which is hereby dismissed with cost.