This appeal by the landlord calls in question an order passed by IInd Rent Controller dated 19-1- 1987 dismissing the Rent Application No,75 of 1986 filed by the appellant against the respondent for ejectment. The learned Rent Controller came to the conclusion that the relationship of landlord and tenant does not exist, therefore, application was misconceived. He also came to the conclusion that the notice under section 18 was not served on the respondent and, therefore, dismissed the rent application.
1. Briefly the facts of the case are that the appellant filed ejectment application on 8-5-1983 against the respondent stating that he has purchased 716 Sq.yards, out of C.S. No,105 from its previous owner namely one Mir Muhammad son of Muhammad Yakoob through registered sale- deed dated 29-9-1981. The appellant further stated that the said premises were in occupation of 8 tenants including the present respondent. He further stated that he served the notice under section 18 on 8-12-1981, which was received by respondent and even after receiving such notice, no rent was given to him as such he has filed the ejectment application. The respondent contested the case and filed written statement. He denied that he received any notice from the appellant. He stated that he did not receive the notice under section 18. It is alleged that he did not commit wilful default, as such application so filed, is illegal and he is not liable to be ejected.
2. In support of his case, the appellant examined himself, produced the title documents, and the copy of the notice. In fact 2 notices were served, one in relation to the premises occupied by the respondent himself and the other notice to his father Dhani Bux Soomro, who was also in possession of 1295 Sq.feet of the same premises. The respondent himself examined and produced a letter dated 30-1-1985 where from it was established that the premises were transferred to Mir Muhammad and the rate of rent was fixed by the Deputy Settlement Commissioner on 24-12-1996 to be Rs,12. Another affidavit in evidence has been filed by Muhamamd Bachal, who says that he is a masson by profession. It is stated by him that he constructed a room and the remaining open area was a court-yard that was the portion of the house where respondent Shamsuddin is residing.
3. Originally this rent application was filed and the appellant claimed relief for two portions, one in possession of respondent and the other in possession of his father Dhani Bux, but the relief in relation to the portion in possession of his father was dropped.
4. The learned Rent Controller on the assessment of the evidence came to the conclusion that the relationship of landlord and tenant is wanting. There is no agreement between the appellant and the respondent nor there is statutory relationship of landlord and tenant. He came to the conclusion that notice was not served and consequently dismissed the application vide impugned judgment.
5. Mr. David Lawrance learned counsel appearing for the appellant while assailing the impugned judgment, contended that Mir Muhammad the original trnasferee of the premises was the landlord while the respondent was in possession of the premises. The amount of the rent was fixed by the Settlement Commissioner and the letter issued by the Deputy Settlement Commissioner to that extent was produced by respondent alongwith his affidavit in evidence. He further contended that the notice under section 18 was issued to the respondent as well as to his father Dhani Bux Soomro.
Learned counsel for the appellants has relied upon the following judgments:-- (1)Muhammad Rafique v. Messrs Habib Bank Limited (1994 SCMR 1012).
(2)Rahim Bakhsh v. Ch. Ahmad Bakhsh and others (PLD 1964 Supreme Court 189).
(3)Mst. Fatima Bi and 15 others v. Muhammad Amin (PLD 1984 Karachi 63).
(4)Pakistan Art Emporium Shop No,C/6 v. Palace Hotel, Karachi (1989 CLC 34).
6. Mr. Abdul Kadir Shaikh learned counsel appearing for the respondent, contended that the respondent is not the tenant, therefore, the application was misconceived. He has relied upon the following judgments:-- (1)Sh. Salahuddin v. Malik Muhammad Yakoob (NLR 1980 UC 456).
(2)Ghulam Muhammad v. Abdul Ghaffar and another (UC of this Court in F.R.A. No,11/82).
(3)Beejal Mal v. Punaji (1987 CLC 1134).
(4)Haji Faaqir Muhammad v. Hazratullah (1989 CLC 252).
7. In the judgments relied by the learned counsel for the respondent as a matter of fact, the Courts came to the conclusion that the relationship of landlord and tenant was wanting and, therefore, the relief was denied to the landlord. In this case it is to be seen whether the relationship of landlord and tenant exists between the parties. If it does as a matter of fact, then the judgments relied by the learned counsel for the respondent would not be attracted.
8. The definition of tenant as given in section 2(J) reads as follows:--
(J) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:-- (i)any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii)heirs of the tenant in possession or occupation of the premises after the death of the tenant; and
9. It is admitted that the respondent is in possession of the premises i,e, 755 Sq.feet. He admitted in written statement that he is liable to pay the rent. He is not claiming ownership of the premises. The rent was already determined and the respondent himself with his affidavit in evidence, produced the letter, therefore, he is undoubtedly tenant and falls within the scope of law.
10. In order to determine whether the appellant is landlord, the evidence on the record reveals that the notice under section 18 was served on the respondent. That notice is at page-47 of the trial Court record. The address of the respondent is correctly shown and not disputed by him, receipt of registered letter issued by Post Office is also available on record, which is not disputed by the respondent and the Post-man was also examined by the trial Court. This notice was denied by the respondent and stated that he did not receive this notice. I checked the admitted signature of the respondent on the written statement and the signature on "the acknowledgment due" receipt at page-49. I also checked his signature on affidavit in evidence. The pattern of writing word "S" is identical in all these documents.
11.The address on the acknowledgement due, is not disputed by the respondent. He has however, denied that he received letter. It is well-settled law that if the notice is sent in registered post on a correct address, presumption under section 27 of General Clauses Act is attached, and it will be presumed that the letter is delivered.
12.For all these reasons, I hold that the notice under section 18 has been served on the respondent, as such the relationship of landlord and tenant is created between the appellant and the respondent, therefore, he was liable to pay the rent Of the portion under his occupation admeasuring 755 Sq.feet.
13.Since the relationship of landlord and tenant is established admittedly he has not paid the rent, as such default is established on the face of record. In this connection he has admitted in cross-examination that he never offered any rent to the appellant. He further stated that in case this Court direct me to pay some reasonable rent I will pay the rent." Since the default is established it is, therefore, held that the findings of the Rent Controller are not correct and therefore set aside and the rent application is allowed, ejectment is ordered to the extent that the premises which are in possession of the respondent, shall be vacated and handedover to the appellant by 30-1-1997.