' This Frist Rent Appeal is filed by the legal heirs of late Holomal son of Sakhawat Rai under section 21 of the Sindh Rented Premises Ordinance, 1979 in respect of immovable property bearing C.S. No,391 Ward 'A' Shandadkot, measuring 3600 squre feet. The rent case was initially filed by the appellants predecessor-in-interest seeking eviction of the respondent/tenant on the grounds of default and personal bona fide use, which was dismissed by the IInd Rent Controller, Larkana vide impugned judgment against which the late appellant Holomal has filed the present appeal.
However, during the pendency of the rent appeal, Holomal died and his legal heirs were brought on record vide this Court order dated 29-11-1995.
2. The case of the appellants/landlords is that their predecessor Holomal was owner of the suit property alongwith one Rajhomal having equal shares of 50 per cent. Each; that the tenement in question was rented out to the respondent/tenant in the year 1950 at the rate of Rs,500 per month; that the tenant failed to tender rents from 1-1-1982 till filing of the rent case; that all efforts of the landlord for settlement through nek-mard resulted in failure and that the landlord requires the house in good faith for Sukhdev son of Rajhomal who is married and wants to reside separately.
3. The tenant/respondent denied the existence of relationship of landlord and tenant on the grounds that he has purchased the tenement from Pers Ram up to the extent of 0-50 paisa for which tenant has filed a civil suit for specific performance. He admitted in his written statement that late Holomal (landlord) and one Pers Ram are joint owners; that after death of Pers Ram, his three sons including Rajhomal (father of Sukhdev) inherited the property in question; that in the year 1950 he purchased 50% share in the said property from the legal heirs of Pers Ram; that during the year 1961, the respondent/tenant constructed a house on the land in question; that he is not, the tenant of Holomal. And that the rent application is liable to be dismissed. In view of the abovequoted pleadings, the learned Rent Controller framed the following issues:--
(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether the opponent has committed default in payment of rent from 1-1-1982 till filing of this rent application in respect of disputed house?
(3) Whether the applicant requires the disputed house for personal bona fide use of Sukhdev son of Rejhomal?
(4) What should the order be?
4. I have heard Mr. Ghulam Qadir Abro, Advocate for the appellant and Mr. Muhammad Nawaz Chandio, Advocate for the respondent. I have also gone through the R&P summoned from the Court of IInd Rent Controller.
5. The main controversy involved in this rent appeal is the issue of existence of relationship of landlord and tenant between the parties. Since the learned Rent Controller answered this issue in negative, therefore, the remaining issues were also decided in negative. I have gone through the findings of the learned Rent Controller on the issue of relationship of landlord and tenant and have also gone through the evidence produced by the parties. In my view, the learned Rent Controller has failed to consider material evidence in the case which has resulted in the dismissal of rent case.
6. Learned counsel for the appellant has also filed an application under Order 41, Rule 27, C.P.C.
(C.M.A. No,54 of 1996) which was ordered to be heard alongwith this main case. Through the said application, the appellants have prayed that the copy of plaint in Suit No,67 of 1989 as well as order dated 4-6-1990 passed by the IInd Senior Civil Judge, Larkana be brought on record. The respondent has not filed any counter-affidavit to this application but has contested maintainability of such application filed at this belated stage. As far as the fact of filing the Civil Suit No,67 of 1989 by the respondent is concerned, it has not been denied nor its withdrawal is disputed by the respondent. Perusal of R&P indicates that at page 127, the respondent/tenant had filed an application before the learned Rent Controller under section 10 of the Civil Procedure Code praying that the .Proceedings of the rent case be stayed as the issue in the rent case is identical and similar as involved in the said civil suit. Alongwith this application, the tenant/respondent also filed certified copy of plaint in suit No,67 of 1989. Till disposal of the main rent case, this application remained pending for the reason not available on record. There are certain admissions made by respondent/tenant in the pleadings in Suit No,67 of 1989 wherein he has admitted that appellant Holomal is owner of 0-50 paisa in the suit property and he has also admitted that he purchased this property from bne Pers Ram who after his death, left three persons as his legal heirs. One of them, as admitted by the respondent, is Rajhomal. The appellant is seeking eviction of the respondent from the tenement on the grounds that this premises is also needed in good faith for the use of Sukhdev son of Rajhomal. All these material facts were not considered by the learned Rent Controller.
7. The other factor which led the Rent Controller to hold issue of relationship in negative, was the fact that the tenant has filed a suit for specific Performance against the other co-sharers and, therefore, this casts doubt on the title of late appellant Holomal. It is pertinent to note that the abovementioned suit was withdrawn two months after the dismissal of the eviction application on the grounds that the parties have settled their dispute outside the Court. It is well settled law that the agreement to sell does not create any right, interest or title of the purchaser in a property. It only gives right to the purchaser to sue the seller to perform his contractual obligations. Non- consideration of all these factors have resulted in passing of the impugned judgment. The learned Rent Controller ought to have consider the nature of civil litigation between the tenant and the other co-sharers. The respondent/tenant in his affidavit in evidence has admitted 50 per cent.
Ownership of the appellant but raised the plea that the same was sold by him to some other person. He further admitted in his cross-examination that Holomal and Pers Ram were co-sharers to the extent of 0-50 paisa each. The learned Rent Controller did not consider that the eviction was being sought for the personal use of the grand-son of late Pers Ram. Both the learned counsel have referred the case of Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1. I am afraid, the rule laid down by Honourable Supreme Court in this reported case does not advance the case of either party.
8. In view of the admitted fact that after late Holomal, now his legal heirs are 50% owner and that the remaining ownership belongs to the legal heirs of Pers Ram, the basic question which requires consideration, is what right the respondent/tenant has to contest the relationship of landlord and tenant? It is pertinent to note that the respondent has not claimed protection of section 53-A of the Transfer of Property Act, 1882. Even otherwise, this plea was not available as the respondent failed to establish that the alleged sale agreement contains such clause to the effect that the relationship of landlord and tenant ceased to exist and that the possession of respondent was not as tenant but as of a purchaser. (For reference please see Shamim Akhtar v. Muhammad Rasheed PLD 1989 SC 575, Mst. Azeemunnisa Begum v. Ali Muhammad PLD 1990 SC 382, Iqbal and others v.
Mst. Rabia Bibi and another PLD 1991 SC 242 and the case of Muhammad Rafiq v. Messrs Habib Bank Ltd. 1994 SCM R 1012. In these circumstances, the most appropriate order to pass would he to remand the case for holding further enquiry as held in the case of Syed Abdul Hakim and others v.
Ghulam Mohiuuddin PLD 1994 SC 52. In support of the order which I intend to pass hereinafter, I would like to place reliance on the cases of Dr. Murtaza Hussain v. Muhammad Mustafa 1988 SCM R 741 and the case of same parties decided earlier by this Court PLD 1986 Kar.
199.
9. As a result of the above discussion, I am of the considered view that this appeal must succeed and, therefore, I allow the same and set aside the impugned judgment. Since the remaining issues were not considered by the Rent Controller, I remand this case to the learned IInd Rent Controller, Larkana with the following directions:--
(i) That the issue of existence or non-existence of relationship of landlord and tenant between the parties be decided afresh after allowing the parties to lead additional evidence, if they choose so.
(ii) If the learned Rent Controller comes to the conclusion that the relationship of landlord and tenant ,do exist, then, to decide other issues also.
(iii) In view of the fact that the rent case is pending since 1988, I direct that the case may be decided expeditiously and within six months after receipt of intimation.
10. Before parting, I would like to add that all the observations made in this judgment, are tentative in nature and shall not influence the learned Rent Controller at the time of passing final order/judgment. With the above observations, the main rent appeal as well as Civil Miscellaneous Application No,54 of 1996 stand disposed of.