This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against the order, dated 29-4-1991 passed by learned Controller Karachi-West rejecting the prayer of the appellant for eviction of the respondent from the premises Bearing No.M-II-15/51, Block-B, Akbar Road, Shershah, Karachi, for lack of relationship of landlord and tenant between the parties.
2. Appellant sought eviction of the respondent on the averments that respondent's father Jalil Ahmed was his tenant in the demised premises on a monthly rental of Rs.1,000. After the death of the said tenant on or about 11-7-1983 respondent inherited the tenancy; became his statutory tenant, and liable to pay rent and perform other terms and conditions of the tenancy. Since he committed default in payment of rent after the death of his father and wilfully avoided and refused to accept the demand notices sent to him on four occasions by registered post he was liable to eviction.
3. Eviction was resisted by the respondent denying all averments and stating that he was inducted in the demised premises by previous landlord Amal Gul in 1979. In this view of the matter sole issue relating to existence of relationship between the parties was struck.
4. Both the parties adduced evidence at the trial. On assessment of the evidence and hearing the parties' counsel learned Controller held that there was no relationship of landlord and tenant between the parties and dismissed the eviction application which has been impugned in this appeal.
5. I have heard learned counsel for the parties and with their assistance gone through the evidence on record. While the case of the appellant is that he purchased the premises from the previous owner Amal Gul for a consideration of Rs.24,000 vide agreement to sell dated 17-3-1980 duly witnessed by Azhar Iqbal, the respondent herein and attested by a Notary Public, case of the respondent is that in fact he was inducted as tenant in the demised premises by Amal Gul in 1979.
On the one hand appellant has produced original agreement to sell, extract from PT-I Register bearing his name as owner of the demised premises, receipt for payment of Rs.24,000 purportedly executed by Amal Gul as consideration for transfer of the property in question, payment of Rs.375 to K.E.S.C. Limited for providing power connection in the demised premises and acknowledgment receipt from the K.E.S.C. Limited in token of receipt of application for electricity connection, respondent relied upon his oral and uncorroborated version.
6. On a careful scrutiny of the evidence adduced by the parties it would suffice to say that the appellants' right to receive rent from the occupant of the premises as based on the solitary agreement to sell purportedly executed by Amal Gul for a consideration of Rs.24,000. It may be pertinent to note that the said Amal Gul himself had no marketable title to the premises in dispute which appear to be situated in a Katchiabadi and he may have been the occupant thereof the possession of the premises in favour of the appellant even if the agreement to sell is accepted on its face value. It may further be noticed that the said Amal Gul was not examined before the Controller to prove the transfer of possession and surrender of his right to premises. According to the appellant the said agreement bears the signature of the respondent as attesting witness but the latter in his evidence categorically denied the same. Be that as it may, mere agreement to sell by itself would not be sufficient and satisfactory evidence to transfer a legal right, title and interest in the premises.
7. The agreement to sell recites that the premises consist of three rooms, a courtyard, a kitchen, bathroom and toilet but the appellant in his evidence stated that the premises consist of two rooms, a courtyard, W.C. And kitchen only. On perusal of the record, there is however, hardly any evidence to support the view that the appellant actually received the possession of the demised premises as admittedly no person from the Mohalla witnessed the same. Be that as it may, appellant having not performed any overt act in pursuance of the alleged agreement to, sell or exercised his right to hold, possess and occupy the premises, in my humble view it is difficult to hold that he acquired the status of a landlord as defined in the Ordinance and entitling him to receive rent from the occupant thereof.
8. Appellant also failed before the learned Controller to establish that he had inducted Jalil Ahmed father of the respondents as his tenant on a monthly rental of Rs.1,000 as alleged. Admittedly no tenancy agreement was executed between the parties and there is absolutely no evidence to hold that the said Jalil Ahmed ever paid any amount by way of rent to the appellant as consideration for his occupation. On appellant's own showing no rent receipts was ever issued by him, therefore, none could be produced. He also admitted that he cannot produce any documentary proof to establish that late Jalil Ahmed was his tenant. In case, tenancy in respect of the premises in favour of Jalil Ahmed is not established after his death, the same cannot be said to devolve on the respondent.
9. No doubt appellant asserted that late Jalil Ahmed paid him rent of the premises up to June, 1983, there is no material evidence inspiring confidence to support, this statement. Appellant relied upon the oral evidence of his witnesses Muhammad Naseer Khan and Sayed Akhtar Saddiqui but an examination of their evidence tends to give an impression that they are deeply interested in the appellant and set up by him in order to lend support to his oral evidence. Although both of them are not attesting witnesses to the agreement to sell and the receipt for consideration they have wrongly testified that the appellant purchased the property together with structure thereon on 17- 3-1980 in their presence; made payment of Rs.24,000 being the balance of sale price to Amal Gul and took over physical and peaceful possession on the same day. They further maintained that monthly rent of Rs.1,000 was agreed between the appellant and late Jalil Ahmed in presence of his son Azhar Iqbal Khan the respondent on the same day in their presence. They went on obliging the appellant by stating that said Jalil Ahmed had paid agreed rent to the appellant in their presence.
While P.W., Muhammad Naseer Khan is resident of ' C' Area, Liaquatabad Sayed Akthtar Siddiqui is resident of City Railway Colony, Karachi, therefore, their presence at the time of alleged transaction at Shershah Colony on the face of it is neither natural nor probable. A close and minute scrutiny of their statements leads to a conclusion that their evidence is not worthy of credit to establish the relationship of landlord between the parties. Learned Controller took pains to assess the evidence of both these witnesses who have contradicted their own affidavits-in-evidence, therefore, it is not necessary to dilate upon this aspect of the case. Suffice to say that learned Controller rightly declined to place explicit reliance on their evidence which on the face of it is improbable and greatly shattered and impeached during the course of their cross-examination.
10. It is settled that tenancy is a valuable right and it must be proved by evidence of high order which unfortunately is badly lacking in this case. No doubt the respondent equally failed to prove that he had been inducted as tenant in the premises by the previous owner the fact remains that in order to succeed in an eviction application appellant must prove by satisfactory evidence that he had inducted the respondent as tenant in the demised premises in the exercise of his authority as landlord. Judging the evidence adduced by both the parties and placing the same in juxtaposition to each other I am inclined to the view that the learned Controller by dismissing the ejectment application neither acted illegally nor committed an error by misreading or non-reading the relevant evidence on record. The discretion exercised and the view taken by him is justified and supported by the material on record and in my view that there is no strong and valid reason to interfere with the conclusion drawn by the learned Controller.
11. For the aforesaid facts and reasons, there is no merit in this appeal which must fail and is hereby dismissed. The appellant may get his title, cleared from a competent Court of law, if so advised.