' This is first rent appeal filed under section 24(1) of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act, 1963), through which appellant was ordered to be evicted from the shop built on House No,319-H.C.B., Shah Faisal Colony, Katcha Qda, Hyderabad, on the grounds of personal need and default (hereinafter the said property is referred to as the tenement in question).
2. On 20-5-1995, the learned Rent Controller, Cantonment Board, Hyderabad, as a result of pleadings, framed a preliminary issue on the point whether there exists relationship of landlord and tenant between the parties and after having finally found the existence of relationship of landlord and tenant, ordered eviction of the appellant/tenant on the ground of personal need. It is this order which has been impugned in this rent appeal.
3. I have heard Mr. Raja Khan, Advocate for the appellant and Mr. Riazuddin Siddiqui, Advocate for the respondent who had appeared on pre-admission notice. It was contended by Mr. Raja Khan that the present respondent is neither owner of the tenement in question nor landlord and, therefore, he was not entitled to maintain an application under section 17 of the Act, 1963. He has referred to the evidence brought on record before the Court of learned Rent Controller. In alternative, it was argued that since a preliminary issue was framed, the learned Rent Controller ought to have directed the parties to lead evidence on the merits of this case which was not done in the instant case, Mr. Raja Khan has relied on the cases Government of Sindh v. District Judge, Karachi and 2 others (1986 CLC 912), Abdul Hameed Naz and 7 others v. Razia Begum and 4 others (1991 SCM R 1376), Umar Hayat Khan v. Inayatullah Butt and others (1994 SCM R 572). Mr. Riazuddin Siddiqui Advocate vehemently argued that the respondent has successfully proved the relationship of landlord and tenant and, therefore, the learned Rent Controller has rightly ordered eviction of the appellant/tenant. He has fully supported the impugned judgment.
4. It is a proved fact that one Mst. Imaman Begum was the original landlady of the tenement in question who died on 19-6-1992. During her lifetime, the appellant/tenant was continuously tendering rent to her. The dispute arose after her expiry. On 11th August, 1994, the present respondent filed an application under section 17 of the Act, 1963 against the appellant tenant on the grounds of default and personal need. In that application it was claimed that Mst. Imarrian Begum widow of Rehmatullah was the mother of appellant as well as one Mst. Resham from her first husband. Her subsequent marriage did not bear any offspring. It was further claimed in the said application that the appellant/tenant despite intimation of the above fact, failed to tender the rent within time. As against that, the plea taken by the appellant/tenant in his written statement as well as in his affidavit in evidence was quite strange and inconsistent. It was admitted that the appellant/tenant was tendering rents to Mst. Imaman Begum as a landlady of the tenement in question but at the same time it was denied that the present respondent was the legal heir of Mst.
Imaman Begum. The appellant/tenant went up to the extent of claiming that the landlady was not the owner of the tenement in question and that it was ownerless property. It would be advantageous to quote paras. 2, 3 and 5 of the affidavit-in-evidence of the appellant/tenant which will help in resolving the instant dispute : "2. That the Commercial Plot No,H.C.B-319, situated at Katcha Qilla, Shah Faisal Colony, Hyderabad in the name of Rehmatullah Khan, the husband of Mst. Imaman Begum and Entitlement Slip No, 2020, dated 2-12-1979 was issued in his favour.
3. That over the said plot, one shop Katcha Pacca, one residential portion behind the shop are in existence. Mst. Imaman taidow of Rehmatullah Khan let out the shop of the said plot to me vide Rent Agreement duly attested by First Class Magistrate, dated 23-2-1992. The monthly rent of the said shop was agreed at Rs,600, p.m. An amount of Rs,10,000 was paid as deposit by me to Mst.
Imaman Begum refundable at the time of handing over of the possession.
5. That I was continuously paying rent to landlady Mst. Imaman Begum w/o Rehmatullah Khan and she received rent up to June, 1992. Thereafter I remitted rent by Money Orders to Mst. Irnaman Begum but the report of the postman revealed that Imaman Begum expired. Nobody disclosed as legal heirs of tae said landlady. On receipt of notice, dated 3-5-1993 I asked the applicant to supply the copy of the title document in his favour, but neither he supplied any copy of 'his title document nor sent any reply. Accordingly, I filed an application before this Hon'ble Court for seeking to deposit monthly rent which was allowed by this Hon'ble Court; final order was passed on 4-5-1994 in Misc.
R.A. Of 1993. It was also ordered by this Hon'ble Court that the rent will he withdrawn with the permission of a competent Court of law. I have deposited rent up to date. I have not committed default as alleged."
5. It is to be noted that in order to maintain an eviction application as provided under section 17 of the Act, 1163, it is not necessary that the applicant should be an owner of the rented premises. Even a rent collector as defined in section 2 of the Act 1963 could maintain such proceedings. Thus, Mr. Raja Khan is not correct when he says that Mst. Imaman Begum was not the owner of the property and that her deceased husband had some title document in his name. Be that as it may, if the conduct of the appellant is seen in light with the provisions of Act, 1963 read with Article 115 of Qanun-e-Shahadat, 1984, he is estopped in law to challenge the status of deceased Imaman Begum. To elucidate their view, it would be advantageous to quote following-provisions of law:-- Sections 2(g) and (j) of the Act 1963: "(g) 'landlord' means any person for the time being entitled to receiver in respect of any hail-ding whether on his own account or on behalf or for the benefit of any other persons, or as to trustee, guardian or receiver and includes a tenant who, being authorised under the terms of his lease so to do, sublets the 'building and every other person for the time being deriving title from the landlord;
(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building by him or by any other person on his behalf, and includes--
(i) any person whoxontinues to be in possession , or occupation of a building after 'die termination of his/ tenancy; and .
(ii) in the event of the death of the tenant, his heirs and successors and after the termination of the tenancy, his heirs and successors who continue to be in possession or ' occupation of the building."
Article 115 of Qanun-e-Shahadat, 1984.
"115. Estoppel of tenant and of licensee of person in possession.---No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person 'who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given . "
6. There is no cavil to the ,proposition that an opponent in a proceeding arising out of rent laws is competent to raise a bona fide and genuine plea of absence at relationship landlord and tenant and that in /such circumstances a Rent Controller would be competent to first decide this question as without such relationship a Rent Controller has no jurisdiction to proceed with a cause. At the same time, a Rent Controller, being a Court of limited jurisdiction, is not authorised to determine the title of the property particularly when there is a registered title document in field. I am fortified in my view by the law cited by the learned counsel for the appellant. But the fact of the instant case does not lend help to him. Once he has admitted Mst. Imaman Begum to be the landlady, 'he cannot challenge her status after her death and again he was not competent to challenge heir ship of deceased landlady, the present respondent, who had successfully proved to be the legal heirs of deceased Imaman Begum. I have gone through the pleadings and through the evidence and am of the considered view that the findings of the learned Rent Controller on the preliminary issue does not require interference. The respondents had successfully proved that the appellant is their tenant as they are legal heirs of Mst. Imaman Begum. But the matter does not end here. The learned Rent Controller after coming to the conclusion that there exists relationship between the parties, straightaway directed the eviction of the appellant/tenant without consideration of other grounds for eviction and without giving opportunity to the appellant to defend himself on this point.
The Rent Controller is competent to order an eviction straightaway in a matter where default is alleged against an opponent who cannot make out a good defence and where a positive finding is given on relationship. But there must be sufficient material on record, before passing order of eviction. In the instant case a preliminary issue was framed and the parties were directed to lead evidence on the point of relationship. The appellant/tenant, in particular, was under this impression and, therefore, did not lead any evidence in defence on the points of personal need and default. It has been stated by the appellant that he is depositing rent in miscellaneous rent case with effect from July, 1992, the month when the landlady Imaman Begum expired. These facts were not considered by the learned Rent Controller.
7. As a result of the above discussion this appeal is partly accepted and partly dismissed with no order as to costs up to the extent that the finding Of. The Rent Controller on relationship of landlord and tenant is upheld but on the point of relief this appeal is accepted. As a result of this finding, the matter is remanded to the learned Rent Controller, Cantonment Board, Hyderabad, with the direction to give the parties opportunity to lead evidence on the issues of personal need and default and thereafter, to pass a final judgment within a period of two months from the date of receipt of this order. Consequently, C.M.A. No6.361 of 1998 is dismissed as it has become infructuous.