1. ' This Appeal impugns the order dated 24-6-1993 passed by the First Senior Civil Judge/Rent Controller Sukkur, whereby the Appellant's application for ejectment of the respondents was rejected on the sole ground that there was no relationship of landlord and tenant between the parties.
2. ' The brief facts of the matter are that the Property in question bearing C.S. No,E-114, New Goth, Sukkur, originally owned by one Muhammad Ismail son of Muhammad Ali was gifted to the Appellants whereafter their names were mutated as owners on the Revenue Record. It appears that Muhammad Ismail obtained the property under the settlement scheme in a public auction and at that time, as shown in the records of the Custodian of Evacuee 'Property one Wali Muhammad was the tenant who was the predecessor-in-interest of the respondents. Some time in March 1981 Muhammad Ismail filed a Rent Application No,6 of 1981 for ejection of the legal heirs of Wali Muhammad who are the present Respondents from this property on the basis of default as well as personal requirement. All the respondents in R.A. No, 6 of 1991 resisted the same on the grounds that the property in question was not an evacuee property and that the transfer in favour of Muhammad Ismail was without jurisdiction. They asserted that originally the property was in open Plot and that they have been in possession over the said plot for the past 40 years and the construction existing thereon was raised by them. As such there was no relationship of Landlord and tenant between the parties and hence no question of payment of any rent. On these pleas the first question in the matter was whether there was any relationship of landlord and tenant between the parties which were decided in the affirmative by the learned Rent Controller after having gone through the affidavit-in-evidence of the parties who came to the conclusion that the denial of such relationship was vague, mala fide and uncalled for as there was no defence of adverse possession and so also the previous ownership of the custodian was admitted. The learned Rent Controller also came to the conclusion that no rent had been paid by the respondents and also that the appellant Muhammad Ismail required the property for his own personal bona fide need.
3. Consequently the Application was allowed, whereupon the respondents filed F.R.A. No, 586 of 1983 against the Rent Controller's Orders in this Court which was dismissed on the grounds that no case was made out by the appellants who are the respondents in this case and consequently the learned Rent Controller's Orders was upheld.
4. ' Before the respondents could be ejected from the rented premises the same was gifted, as stated above to the present appellants and their names mutated in the Record of Rights on 12-1-1985 whereafter the said respondents were allowed to continue as tenants of the appellant subject to payment of rent at the rate of Rs,300 per month.
5. ' Thereafter, the appellants filed R.A. No, 55 of 1989 before the learned. First Senior Civil Judge/ Rent Controller on the basis of default and further that the condition of the premises had become dilapidated for which reconstruction was necessary. The respondents filed their reply and denied the relationship of landlord and tenant on the basis of a sale Agreement dated 8-3-1987 whereby they had allegedly purchased the rented premises from the Appellants. The learned Rent Controller framed issues accordingly and after having gone through the evidence of the Appellants alone since the Respondents witnesses did not present themselves for cross-examination although their affidavit-in-evidence, was filed came to the conclusion that there was no relationship of landlord and tenant the ejection application was abundantly misconceived and hence rejected the same.
6. ' I have heard learned counsel for both the parties at length and my findings on the various issues raised in the matter are as follows:-- ' As regards the relationship of landlord and tenant, the learned Counsel for the Respondent has stressed that as per the affidavits-in-evidence of Shabbir Ahmed and Muhammad Chattal for the appellants which are at Exhs. 36 and 37 respectively, no Rent Agreement had been produced which would establish such relationship and during the course of their cross-examination the witnesses admitted that no such agreement existed and neither was any notice sent in writing to the respondents after the Appellants had purchased the Property. The witness has also' admitted that the property was actually purchased from Muhammad Ismail the original allottee by his ancestors and, therefore, he does not know much about it. He has also admitted that only one month's rent for the disputed property had been paid to his ancestors by the Respondents. Similarly the learned counsel has also submitted that Muhammad Chattal the appellant's other witness has not produced any Rent Agreement with regard to the rented premises and he had also admitted that he did not know as to when such alleged tenancy started and when some of the rent had been paid by the respondents. On the basis of these admissions of the appellant's witness during cross- examination it is the contention of the learned counsel for the respondents that right from the very beginning the respondents had never admitted that they were the tenants of the appellants or the original owner of the premises i,e, Muhammad Ismail. Consequently learned counsel in this regard has relied upon Faqir Muhammad v. Khuda Bux (PLD 1992 Karachi Page 406). Furthermore, learned counsel submits that even if it were established that there was a relationship of landlord and tenant between the parties, the necessary notice for change of ownership under the law had not been given to the respondents and accordingly the Rent Application would also fail on this score. In this connection Learned counsel has relied upon Bismillah Begum v. Fazal Muhammad (1987 CLC 113).
7. ' On the other hand learned counsel for the appellants submits that the issue of landlord and tenant has been decided in favour of the appellants vide this Court's order dated 13-2-1984 in F.R.A.
8. No, 586 of 1983 in which the parties were the present respondents and original owner of ,the property and consequently submits that by operation of law the present Appellants would step Into the shoes of Muhammad Ismail who has been declared as the landlord by this Court in the said F.R.A. Consequently the learned Counsel submits that there is no requirement of producing any Rent Agreement as the relationship has been recognized by operation of law as well as by the decision of this Court in F.R.A. No, 586 of 1983. In this connection learned counsel has relied upon the definitions of the terms landlord and tenant as appearing in sections 2 (F) and 2 (J) of the Sindh Rented Premises Ordinance, 1979 respectively and has quoted the following case in support Sabhumal v. Kikaram alias Hemandas (1973 SCM R 185), Saduri Bai and others v. Faiz Muhammad (1990 CLC 1353). Parveen Akthar and others v. Shafique Ahmed and another (1990 CLC 2019). As regards non-service of the statutory notice upon change of ownership learned counsel submits that both the appellants witnesses have stated that, the parties are related and that the facts of the matter abundantly establish that the respondents knew about the transfer of the property to the appellants and in this connection has relied upon Saduri Bai and others v. Faiz Muhammad (supra), Mst. Muhammad Nisa v. Anwar Ali (1989 CLC 157), Furthermore, Learned Counsel submits that said notice under section 1-4 of the Ordinance is only necessary where the ground pleaded for ejection is that of default only. However, in the Application at hand the ground was not only default but of personal requirement as well He has relied upon Habib Muhammad v. Zamir Hassan Khan (1987 CLC 510). Finally Learned Counsel has submitted that the Respondents have not been able to establish that they had purchased the property from the Appellants as none from their side presented themselves for cross-examination although the affidavit-in-evidence of two witnesses were filed. In any event learned counsel submits that in view of the decision of the Hon'ble Supreme Court in lqbal and 6 others v. Mst. Wajid Bibi and another (PLD 1991 SC 242) to the effect that where a Sale Agreement or other transaction was relied upon by tenants which was seriously disputed by the landlord, tenants could not be allowed to retain possession during the litigation and deny the ownership of landlord who had declared them as tenants without any condition or reservations. It was held in that case that the ejection could not be suspended on this plea but the tenants could institute separate Civil proceedings for possession of the property after vacating the same.
9. ' I have considered the submissions of both the learned counsel in my view the relationship of landlord and tenant was decided in favour of the predecessor-in-interest of the present appellants vide orders of this Court in F.R.A. No, 586 of 1983 and consequently as the appellants have stepped into the shoes of Muhammad Ismail, such relationship cannot be challenged successfully by the Respondents. Similarly the definition of the term landlord appearing in the Ordinance means owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises. Such definition has been judicially interpreted to mean a person who derives title from the landlord by way of transfer or inheritance etc. Reliance in this regard can be placed Sabumal v. Kikaram alias Hemandas as well as General Services Corporation v. PNSC.
10. 1987 M LD 2149 it was held that on purchase of property or change of name or amalgamation of two companies into another company the relationship of landlord and tenant between the purchaser the new company would stand automatically created. In the circumstances I am of the view that the learned Rent Controller fell into grave error when he decided that the appellants had failed to prove the relationship of landlord and tenant. The same in my view has been judicially recognized by this Court in F.R.A. No, 586 of 1983 and is otherwise established by operation of law and hence does not need any evidence whatsoever.
11. It would also be seen that the Hon'ble Supreme Court has been of the consistent view that where the sale transaction between a Tenant and landlord regarding the rented premises was seriously and bona fidely challenged by the landlord as in the present case), the tenant' could not be allowed to retain the rented premises during the litigation based on such transaction. In these circumstances, the tenant should prosecute its claim by vacating the premises but, thereafter, would be entitled to an easy and free entry as soon as he finally succeeded in establishing his title against the Landlord. This view of the matter is reflected in Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 SC 382), Iqbal and others v. Mst. Rabia Bibi and another (PLD 1991 SC 242) Muhammad Rafique v. M/s. Habib Bank Ltd. (1994 SCM R 1012) and Mst. Bor Bibi and others v. Abdul Qadir and others (1996 SCM R 877).
12. As regards the non-service of the statutory notice upon change of ownership, I entirely agree that the same was not necessary in view of the c admitted position that both the parties were related and knew about the transfer of property. In any event such notice is only necessary when the ejectment is sought only on the ground of default and not in the present case when the additional ground pleaded was personal use.
13. ' As regards the default in payment of rent, it is an admitted position that said rent was never paid either to Muhammad Ismail or to the present Appellants. Hence, I have no difficulty in holding that the default has been made in payment of rent by the respondents which merits their ejectment from the rented premises.
14. ' In view of the foregoing discussion. I hereby direct the respondents to hand over vacant physical possession of the property in question to the appellants within three months from the date of this order.