' This appeal is directed from the order dated 22-12-1990 passed by the IInd Senior Civil Judge and Rent Controller, Larkana dismissing the ejectment application viz. RA. No,1 of 1990, filed by the appellants against the respondents under section 15 of the Sindh Rented Premises Ordinance, 1979, on the ground of default in payment of monthly rent.
2. Briefly stated, the facts which lead to this appeal are that late Ranjho Khan, the father of the appellants was transferee of property bearing C.S. Nos.351 and 352, Ward "A" Shandatkot from Settlement Department vide P.T.D. Nos. 7468 and 7467 dated 27-9-1969 respectively in which late Muhammad Akbar, the father of the respondents was in use and occupation as tenant at the time of purchase of the said property. In June, 1986 Ranjho Khan died leaving behind the appellants as his L.Rs, who inherited the same in dispute. On 24-9-1989, the appellants served notice upon Muhammad Akbar demanding rent from him at the rate of Rs,500 p.m. Who replied it, denying the title and relationship of landlord and tenant between the parties. On 30-1-1990 the appellants named above filed ejectment proceedings viz. RA. No,1 of 1990 against Muhammad Akbar who died during the pendency of the said proceedings as such his L.Rs,, the respondents named above were made party and an amended Rent Application was filed. The ejectment is sought only on the ground of default in payment of monthly rent since last more than 3 (three) years.
3. The respondents named above in denial of the claim of the appellants filed their written objections stating therein that there exists no relationship of landlord and tenant between the parties. They asserted that neither their father ever paid any rent to the father of the appellants or to the appellants nor they paid the same to any of them. They further stated that late Muhammad Akbar was not the tenant but he was in possession of the disputed premises since last 30 years, and after his death they are in possession of the same as its owner. They admitted the service of notice and the reply to it by their late father. They also stated that late Muhammad Akbar used to pay the property tax, betterment tax and the professional tax and after him they are paying and that they electrified the premises to the knowledge of late Ranjho Khan. They further stated that the disputed premises were neither rented out by Ranjho Khan to Muhammad Akbar nor there was any rent agreement. In the end, they asserted that late Muhammad Akbar acquired the title over the disputed premises by way of prescription.
3-A. In support of the case the landlords examined their Attorney Haq Nawaz who filed his affidavit- in-evidence (Exh.30) who produced original General Power of Attorney (Exh. 31), certified copies of C.S. Extracts showing entry made in the record in the name of late Ranjho Khan on the basis of the P.T.D. Issued by the Settlement Department in respect of C.S. Nos. 351 and 352, Ward "A", Shandadkot (Exhs. 32 and 33 respectively), certified copies of C.S. Extract in the name of the appellants (Exhs. 34 and 35 respectively), copy of notice dated 24-4-1989 alongwith Postal and A/D receipts at Exhs. 36 to 38). While the respondent Muhammad Akhtar filed his affidavit-in-evidence (Exh. 40), Challans showing deposit of property tax by Muhammad Akbar at Exhs.41 to 43, electricity bills (Exh. 44), copy of reply dated 20-5-1989 as Exh.
45. He has also filed an affidavit-in-evidence of his witness Moinuddin (Exh. 46).
4. That the learned Rent Controller framed the following issues for determination; but under point No, (1) he reached to the conclusion that there exists no relationship between the parties, as such he dismissed the application hence the instant appeal is filed:- "(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether opponents have committed wilful default in payment of rent of disputed premises since June, 1986 up to the filing of this Rent Application i,e, 30-1-1990?
(3) What should the order be?"
5. I have heard the learned counsel for the parties. Mr. Sikandar Ali Alvi, the learned counsel appearing for the appellants has submitted that the title of the present appellants is perfect and there can hardly be said, that any doubt exists. He has referred the entry made in the City Survey Record (Exhs.32 and 33) which shows that the said entries are made in the name of late Ranjho Khan on 30-12-1969 on the basis of the P.T.Ds. Issued by the Settlement Department bearing Nos.
7467 and 7468 dated 27-9-1969. He also referred the City Survery Extracts at Exhs. 34 and 35 showing the entry made in the name of the appellants after the death of their father. He also referred a notice dated 24-4-1989 (Exh. 37) sent on behalf of the appellants to the predecessor/father of the respondent and the service of which is not denied. He contended that the tenancy is either contractual or the statutory. In the instant case admittedly there was no rent agreement between the parties as such the tenancy was statutory. The property in dispute originally belonged to evacuee owner and after the same was acquired by the Federal Government, the same was transferred in favour of late Ranjho Khan, as such the tenancy stands created in between transferee and the occupant late Muhammad Akbar, the predecessor of the respondents. After the death of Ranjho Khan, the transferee, the property devolved upon his L.Rs,, who served the occupant Muhammad Akbar with notice, to which, though he denied the ownership/title of the transferee over the disputed property and also the relationship of landlord and tenant. He submitted that the learned Rent Controller has misdirected himself in deciding the issue of relationship of landlord and tenant and has overlooked the overwhelming evidence brought on record. In support of his contentions he has relied upon the cases reported in (1) 1991 CLC Note 183 at p.144, (2) 1983 CLC 398, (3) 1985 CLC 999, (4) 1982 SCMR 207, (5) 1984 CLC 3227, (6)
1988 MLD 772, and (7) 1987 CLC 1736.
' In case shown at S. No, (1) it is held: "Respondent in strength of P.T.D. In respect of premises in dispute had undisputedly proved that her deceased husband was transferee of premises in dispute and she being widow, was one of the legal heirs of her deceased husband and as such was entitled to maintain ejectment application-- Claim of appellant that her husband was in occupation of premises as an unauthorised occupant, was unbelieveable---Rent Controller, held, rightly that applicant was entitled to evict tenant in circumstances."
' In case shown at S. No, (2), it is held: "Relationship of landlord and tenant---Tenant's denial of--Rent Controller failing to find such relationship for reason that landlord neither served tenant with notice under S. 30 of D.P.
(Compensation and Rehabilitation) Act, 1958 nor rebutted tenant's assertion of owner ship of property in question--Landlord producing P.T.D. Issued in his favour--Tenant not denying being not in occupation of premises at time of transfer in landlord's favour--D.P. (Compensation and Rehabilitation) Act, 1958, having been repealed, tenant not entitled to notice and question of subletting alleged against him can be enquired into even in absence of notice under S. 30--- Relationship of landlord and tenant, held, existed."
' In case shown at S. No, (3), it is held: "Relationship of landlord and tenant--Question as to title of property-- Rent Controller exercises a limited jurisdiction and could not go into question/inquire as to title of landlord in presence of P.T.D issued by Settlement Authorities--P.T.D. Having been produced before the Rent Controller in evidence Rent Controller justified in satisfying himself under provisions of S. 13 of Ordinance, 1959, that there existed relationship of landlord and tenant between parties."
' In case referred at S. No, (4), it is held: "Eviction--Not an iota of evidence existing to show as to what interest or right petitioner had in disputed shop--Settlement Department on other hand transferring shop to respondent landlord-- Respondent a regular transferee of property holding regular P.T.D. In his favour--- ' Respondent shown to have served regular notice on petitioner tenant but petitioner despite receipt of such notice not paying rent---Courts below, held, perfectly justified in directing and maintaining the petitioner's eviction."
' In case referred at S. No, (5), it is held: "Tenant having raised construction over plots transferred to landlord and using such plots for commercial and residential purpose--Case of tenant, held, fell within purview of S. 30--Displaced Persons (Compensation and Rehabilitation) Act, 1958 and statutory tenancy was created--- Ejectment of such tenant could only be secured through forum of Rent Controller under Sindh Rented Premises Ordinance, 1979."
' In the case shown at S. No, (6), it is held: "Occupant of transferred property becomes tenant of transferee by operation of law--Notice contemplated by S. 30 has nothing to do with creation of landlord and tenant relationship. "
' In case shown at S. No, (7), it is held: "Ejectment of tenant--Tenant denying relationship of landlord and tenant--Landlord, a transferee of premises serving notice on tenant under S. 30 of Act XXVIII of 1958--Premises having been transferred to respondent who had served notice on tenant as per requirement of law, statutory relationship of landlord and tenant, held, came into being between parties--Claim of rent as demanded by landlord under S. 30 of Act XXVIII of 1958, even if excessive would not absolve tenant from paying or tendering same which was legally due to such landlord."
6. Mr. Sikandar All Alvi also contended that admittedly the respondents have neither paid nor tendered any rent of the disputed premises, to the appellants, in spite of service of notice dated 24-4-1989, as such the nonpayment of rent is admitted and therefore they are guilty of committing wilful default in payment of monthly rent, hence they are liable to be ejected from the said premises. In support of his contention, he has relied upon the cases reported in (1) 1982 SCMR 207;
(2) 1987 CLC 1736, (3) 1991 CLC Note 97 at p.79, and (4) PLD 1984 Kar.
23.
7. Mr. Kanaya Lal, Advocate appearing for the respondents in reply to the contentions of the learned Advocate for the appellants argued that the Rent Controller has rightly and justly passed the impugned order and it does not suffer from any legal defect. He contended that since notice under section 30 of Act XXVIII of 1958 was not served upon the occupant of the premises in dispute and that the occupant never paid or tendered any rent to the transferee and that there is no rent agreement, and that the occupant was using the premises in his own right and that he always paid property tax, betterment tax and professional tax of the property as such he became the owner of the same and after his death the present respondents as his L.Rs, stepped into the shoes of their predecessor, as such there exists no relationship of landlord and tenant in between the parties, hence the ejectment application filed against them was not maintainable in law. In support of his contention, Mr. Kanaya Lal relied upon the following cases reported in:--
(1) PLD 1985 Karachi 741.
(2) 1987 CLC 1134.
(3) 1990 CLC 1529.
(4) 1988 SCMR 679.
' The case show at S. No,1 is not at all applicable as it was not the case of statutory tenancy between the transferee of the evacuee property under P.T.D. By the Settlement Department and the occupant of the same. The case shown at S. No, 2 is also of no relevance as the same is in respect of claim of both the parties as transferees of the disputed property and in the instant case the respondents/occupants are not the transferees of the disputed property but they claim that they are in its possession since last 30 years. In case shown at S.No, 3 both the parties claimed ownership without any documentary proof, but in the instant case the appellants have got valid and substantial title over the disputed property, hence this authority is also of no help to the respondents. The last case shown at S. No,4 is also not applicable in the circumstances of the instant case, because in the said case there was claim of a contractual tenancy and not of a statutory tenancy created by operation of law.
8. I have applied my mind to the valuable arguments and the case-law cited above by the learned counsel for the parties and have gone through the record with their assistance. From the above discussion, it is clear that late Ranjho Khan the father/predecessor of the appellants was transferred the disputed property by the Settlement Department under P.T.Ds. Issued in his favour and late Muhammad Akbar the predecessor of the respondents was in occupation of the said disputed property. Nothing has been brought on record to show that in what capacity said late Muhammad Akbar was occupying the disputed premises, which were admittedly the evacuee property. Since the father of the respondents was in occupation of the disputed property which stands transferred to late Ranjho Khan, he became statutory tenant in the premises. No doubt, it is not established that Ranjho Khan ever served notice under section 30 of Act XXVIII of 1958 upon Muhammad Akbar but it will not affect the right of the L.Rs, of the transferee to maintain ejectment proceedings against the occupants of the disputed property, as they served Muhammd Akbar with notice which was admittedly replied by him and the rent was neither paid nor tendered. After the repeal of Act XXVIII of 1958 notice under section 30 was no more required.
9. In view of the case-law cited by the learned Advocate for the appellants and the circumstances of the case, I am of the view that the appellants have got clear and valid title over the disputed property in possession of the respondents; and by operation of law the occupant late Muhammad Akbar and after his death his L.Rs,, the respondents became the tenant in the premises, as such there existed relationship of landlord and tenant in between the parties and since the respondents admittedly did not pay or tender any rent at any rate and for any period, after service of notice on their predecessor from the side of appellants, the default stands proved. Since the respondents have denied the title of the appellants, they are not entitled to any concession or right to prove the justification of their default in payment of rent. Hence I have no other option but to set aside the order of the Rent Controller dismissing the ejectment application, and allow the appeal with no order as to costs. The respondents are directed to put the appellants in vacant possession of the premises in question within 4 (four) months from the date of this order, failing which the Rent Controller shall issue direct writ of possession without prior notice to the respondents.