' Order, dated 29-9-1998 passed by Civil Judge-II-cum-Rent Controller, Quetta whereby the Eviction Application filed by the respondent has been allowed, and the applicant has been directed to hand over possession of shop bearing Municipal No,3-18/30-18-1230, situated at Yousaf Shopping Plaza, Liaquat Bazar, Quetta (hereinafter referred to as the shop in dispute).
2. The background of this case is that the appellant purchased the premises previously known as Asmat Shopping Plaza, from its previous owner Seth Nametullah vide Mutation No,296 on 18-10-94.
It may be mentioned here that Asmat Shopping Plaza consisted of shops offices including the shop in dispute. After purchase, appellant gifted a portion of the property to his close relatives vide Mutation No .315, dated 22-11-1995. The respondent and other transferees send notices under section 13-A of the Urban Rent Restriction Ordinance to the appellant and other tenants apprising them about the said purchase. The said notice was replied by Mr. Tariq Mehmood, Advocate.
3. Thereafter the appellant filed an Eviction Application against the respondent on 8-4-1996 in respect of the shop in dispute on the ground of personal requirement. The respondent filed his written statement on 21-5-1996. It was averred in the Written Statement that the appellant was owner of the superstructure of the shop which was purchased by him from the previous owner and further stated that the appellant was tenant of the shop in dispute only to extent of land underneath; thus on the said ground, relationship of landlord and tenant was denied. It was further stated that since the appellant had purchased the superstructure of the shop for a consideration of Rs,5,50,000 thus there existed perpetual tenancy between the appellant and previous owner, and the Rent Controller had no jurisdiction to adjudicate upon the Eviction Application.
' Out of the pleadings following issues were framed:---
(1) Whether the application is not maintainable in view of legal objections of clauses 'A' 'B', 'C' of the rejoinder?
(2) Whether there exists any relationship of landlord and tenant between the parties?
(3) Whether the applicant requires the premises in question for his personal use and occupation?
(4) Whether the applicant is entitled for the relief claim for?
(5) Relief?
' Following additional issue was framed later on:--- "Whether the respondent was perpetual tenant of ex-owner to the extent of land underneath?
5. Respondent in support of Eviction Application produced the following witnesses:-- ' A.W.-1, Khudaidad, who tendered in evidence Exh.A/1 i,e, Mutation No,315 showing therein that the respondent gifted portion of the property to his relatives. A.W.-2, Yar Mohammad who is witness of Exh.A/2, i,e, mutation entry wherein the respondent purchased the property from its previous owner Seth Nematullah. A.W.3 Mohammad Yousaf who had deposed about the purchase of the property by the respondent from the previous owner. A.W.-4 Faiz Mohammad who produced Exh.A/1 and Exh.A/2 mutation entries wherein the property was transferred to the appellant and further he gifted the same to his close relatives and respondent got recorded his own statement wherein he deposed about the purchase of the shop in dispute and his personal requirement.
6. In rebuttal appellant produced R.W.1, Syed Nizam-ud-Din who deposed the purchase of the superstructure of the shop in dispute by the appellant from its previous owner, and further stated that the appellant is the tenant to the extent of land underneath only. R.W.2 Syed Kamal Shah stated that in his presence appellant purchased superstructure of the shop in dispute from its previous owner. R.W.3, Rehmatullah. He is the brother of the previous owner Seth Nemathullah. He stated that at the time of construction of Asmat Shopping Plaza it was jointly owned by all the brothers. He received advance from the appellant and other tenants ranging from Five Lacs to Six Lacs and was also settled the rent with the appellant. The appellant stated that he purchased the superstructure of the shop in dispute from its previous owner for a consideration of Rs,5,50,000 and is paying Rs,500, as Rent for the land underneath and also tendered rent agreement Exh.R/1 and rent receipts Exh.R/2 to Exh.R/31.
7. After hearing the parties, the learned Rent Controller ordered eviction of the respondent vide impugned order, dated 29-9-1998; hence this appeal.
8. Mr. Tahir Mohammad Khan, Advocate for the appellant contended as follows:--
(a) That it was specifically pleaded by the appellant in the written statement that he had purchased the superstructure from the previous owner, thus no relationship of landlord and tenant existed between the appellant and the respondent but the learned Rent Controller has not considered the said fact.
(b) That since the appellant had purchased the superstructure and was tenant to the extent of land underneath, the appellant being perpetual tenant in the premises in dispute, thus the learned Rent Controller had no jurisdiction to try the said case as the same did not fall within the purview of the Ordinance.
(c) That the impugned order suffers from misreading and non-reading of evidence on record.
(d) That since 8 Eviction Applications were filed by different persons including the appellant and all of them were not consolidated and no separate evidence was recorded which has caused miscarriage of justice to the applicant.
9. Mr. H. Shakeel Ahmed, learned counsel for the respondents rebutting the contentions of Mr. Tahir Mohammad Khan, Advocate contended that the appellants failed to prove that he is owner of the superstructures thus his appeal was rightly rejected by the learned Rent Controller.
10. The learned counsel further contended that since the plea of ownership of the superstructure was not proved by the appellant thus there is no question of perpetual tenancy; therefore, the learned Rent Controller had jurisdiction to adjudicate upon the same. The learned counsel stated that the impugned Order has been passed after proper appreciation of evidence on record.
11. I have heard the learned counsel for the parties and have also perused the record.
12. Adverting to the argument of Mr.Thair Mohammad Khan, Advocate regarding purchase of the superstructure of the shop in dispute, it has been specifically averred in the written statement that the appellant purchased the superstructure from the previous owner by paying a sum of Rs,550,000 and is only paying Rs,500 as rent of the land underneath. In support of his aforesaid contention, Mr. Tahir Muhammad Khan, Advocate laid much emphasis on the statement of R.W.
Rehmatullah, the agreement Exh.R/1 and the rent receipts R/2. R.W. Rehmatullah who is the brother of the previous owner stated that while constructing Asmat Plaza, then it jointly belonged to all his brothers and he received advance from the appellant including the other tenants ranging from Rs,500,000 to Rs,600,000 and the rate of rent was fixed at Rs,500, per month. It is observed that the said witness has not stated anywhere that the superstructure was sold to the appellant whereas he has clearly stated that amount ranging from Rs,500,000 to Rs,600,000, was received as advance from the appellant and other tenants, and Rs,500 was fixed as rent. Statement of the said witness does not prove contention of the appellant in any manner regarding purchase of ownership rights.
13. Referring to the document Exh.R/1 which was tendered by the appellant in his statement and much reliance has also been placed on the same, the said document was executed between the appellant and Rehmatullah wherein it is mentioned that the appellant has paid a sum of Rs,550,000 as security for the said shop and monthly rental is fixed at Rs,500. It may be mentioned here that this document does not support the contention of the appellant regarding purchase of the superstructure in any manner. At the most only conclusion which can be drawn from the said document is that at the time of getting the shop in dispute from the previous owner, a sum of Rs,550,000 was paid as deposit.
14. Mr. Tahir Mohammad Khan, Advocate for the appellant in support of the aforesaid contention relied upon the following cases:--
(1) Rehmatullah v. Ali Mohammad and another, 1983 SCMR 1064.
(2) Province of Punjab through Secretary, Education and another v. Mufti Abdul Ghani, PLD 1985 SC 1.
(3) Mohammad Hand v. Mumtaz Ahmed, PLD 1986 Karachi 16.
15. With due respect to the learned counsel, I am afraid the aforesaid cases referred to are not in any way applicable to the case in hand.
16. It may be observed that as far as sale of the premises in dispute by the previous owner to Mohammad Afzal is concerned, the same has not been disputed by the appellant and title of the respondent regarding ownership of the premises has not been challenged. As stated above it has only been averred that the appellant purchased the superstructure from the previous owner; the said contention has not been proved as discussed above. As far as question of Pagri is concerned, as mentioned in Mohammad Hand's case (supra) the said view does not hold the field anymore and the Hon'ble Supreme Court has dealt with the question of Pagri in Aziz-ur-Rehman v. Pervaiz Shah and others, 1997 SCMR 1819, wherein the following observations were made:--- "Now examining the plea relating to payment of Pagri it may be seen that same admittedly does no form terms or condition of tenancy. There is hardly any doubt that concept of Pagri is contrary to public policy, therefore, on the settled principles any supra-Contractual agreement which negates tenancy would not affect maintainability of eviction proceedings. The observation of the Court in' case Sheikh Mohammad Yousaf v. District Judge, Rawalpindi and 2 others 1997 SCMR 307 are sufficiently instructive on this aspect therefore operative part is reproduced below:--- 'We have carefully considered these arguments of the learned counsel for the petitioner/tenant.
The Courts below had held that the respondent landlord was successful in establishing a bona fide personal need of the said shop and therefore, while exercising Constitutional jurisdiction the learned Single Judge of the Lahore High Court, Rawalpindi Bench was justified in observing that since that issue had been correctly and properly resolved it being a question of fact was not reviewable in exercise of Constitutional jurisdiction.
' According to the lease agreement the shop had been let out to the tenant' petitioner for a fixed period of ten years with a right of re-entry reserved by the respondent/landlord, but it is not mentioned in the lease deed that the respondent landlord had received Rs,11,000, as Pagree from the petitioner/tenant although it is not stated by him in its statement before the Rent Controller.
However, that being mutual arrangement between the parties would not debar the respondent/landlord from instituting eviction proceedings on the ground of bona fide personal need. Similarly principle has been discussed in Messrs M. Qasim v. Sharbat Khan (1992 MLD 115 M.K.
Mohammad and another v Mohammad Abu Bakar (1993 SCMR 200) and Saeed Mohammad v.
Mehrullah and another (PLD 1996 Quetta 48).
' Additionally Rent Controller and Appellate Authority, Mardan have clearly disbelieved the plea pertaining to payment of Pagree by the petitioner. Therefore, Constitutional jurisdiction for challenging said decision could not be legitimately invoked. Impugned Order/Judgment on this score does not suffer from any defect of legal infirmity."
17. Reverting to the next contention of Mr. Tahir Mohammad Khan Advocate regarding jurisdiction of Rent Controller, it may be noted that as observed hereinabove the appellant miserably failed to prove that he purchased on ownership basis the superstructure of the shop in dispute from its previous owner. The appellant was inducted as a tenant by the previous owner and had been paying rent to him, after purchase of the property by Mohammad Afzal and then transferring the same to the respondents by way of gift, the respondents stepped into the shoes of the previous owner, who have become landlords and in absence of an agreement to the contrary, relationship of landlord and tenant exists between the respondents and the appellant; thus the Rent Controller had rightly exercised jurisdiction in the said case. The contention regarding the question of jurisdiction raised by Mr. Tahir Mohammad Khan, Advocate is repelled.
18. Mr. Tahir Mohammad Khan, Advocate also attempted to argue that from the gift deed i,e, Mutation No,315, dated 22-11-1995, it is not clear whether the shop in dispute was transferred to the respondent. In rebuttal Mr. H. Shakeel Ahmed, Advocate drew my attention to the mutation entry wherein names of the respondents and other donees have been mentioned. From the perusal of the gift deed/mutation entry the names of each of donees are mentioned, and the Khasra No, gifted to each of them with measurement of the area is clearly mentioned, and there is no ambiguity in the same. Besides that, in the Eviction Application description of the shop has not been disputed and thus question was never raised by the appellant rather they have admitted in their written statement that only the land underneath was gifted/transferred to the appellant; thus the contention of the learned counsel is devoid of force.
19. Adverting to the argument that the impugned Order suffers from misreading and non-reading of evidence it may be mentioned here that the entire evidence was read with the assistance of the learned counsel for the appellant but he failed to point out any misreading or non-reading in the impugned judgment. The learned Rent Controller has discussed the entire evidence while attending to each issue independently.
20. Reverting to the arguments of Mr.H. Shakeel Ahmed, Advocate regarding personal requirement, learned counsel contended that the respondents have unequivocally stated that they require the premises in dispute for their personal bona fide use and occupation. Question of personal requirement was not controverted; even not disputed by the appellant while cross-examining the respondent. The appellant in his statement has not stated a single word regarding the personal requirement of the respondents. It is settled that even the sole testimony of the landlord is sufficient to establish his personal bona fide need of the premises if the same is confidence-inspiring and not rebutted by the tenant. In this regard I am fortified with the view taken in Juma Sher v. Sabz Ali 1997 SCMR 1062 wherein the following observations were made: "Mr. Younus Shah, the learned counsel for the respondent very vehemently argued that the learned Judge in Chambers after appreciation of the full evidence in the case reached the conclusion that the evidence of appellant was not confidence-inspiring and therefore he was justified in reversing the said evidence. We are unable to accept the contention of the learned counsel for the respondent. We have gone through the statement of appellant recorded before the Rent Controller in the case. The appellant in his evidence clearly stated that he required the premises for his personal and bona fide need and that he is presently not occupying any other shop or remises where he could do business in the cantonment area. He was subjected to a very lengthy cross- examination by the counsel for the respondent but his evidence could not be shaken. Nothing was brought no record to show that the appellant was in possession of any other property in the cantonment area suitable for his needs and requirements. It has been held by this Court in the case Messrs F . K . Iram & Co. v. Begum Feroz (1996 SCMR 1178) that even the sole testimony of the landlord is sufficient to establish personal and bona fide requirement of landlord. In the case before statement by the appellant on oath was quite consistent with his averments made in the ejectment application and neither this statement was shaken nor anything was brought in evidence to contradict his statement. In fact, the respondent did not even step in the witness-box to controvert the testimony of the appellant in the case. In the circumstances, the Rent Controller was fully justified in accepting the evidence of the appellant and ordering eviction of the respondent from the premises."
21. Mr. Tahir Mohammad Khan learned counsel contended that no consolidation order was passed but the learned Rent Controller recorded the statement of witnesses and the copy of the same was put in the other files also. It may be mentioned here, the respondents/landlords have led common evidence in all the eviction applications. The mutation entry and gift deed has been tendered in all the applications. Similarly, the appellant/tenants have also led common evidence as R.W.
Rehmatullah is a common witness from appellant side in all the applications. From both sides one witness was examined and his statement was placed in the other file only. It is noted that no objection was raised before the Rent Controller and both the parties impliedly consented to the said procedure, as it was convenient for them. It may be mentioned here that respondent/landlords claimed to be owners by way of purchase of from previous by Mohammad and subsequently by way of gift in their favor by the vendor Mohammad Afzal. To prove the gift the respondents led common evidence. Similarly, the appellant claimed to be owner of superstructure and to prove the appellant produced R.W., Rehmatullah whose statement was recorded in one case and the said statement was placed in the files of other Eviction Applications. As observed above both the parties agreed to the said procedure for their own convenience and to save time, thus no prejudice has been caused nor any illegality has been committed by the Rent Controller.
Hence the contention raised by learned counsel is without any substance.
22. Thus, for the foregoing reasons, I see no merits in the appeal; therefore, the same is dismissed.
Appellant is given four months' time to vacate the premises in dispute and hand over vacant possession of the same to the respondents. Parties are left to bear their own costs.