1. ' Appellant/landlord, through this first rent appeal has impugned the orders dated 14-11-1998 dismissing the ejectment application.
2. ' Case of the appellant is that appellant having acquired the ownership of shop bearing C.S. No,12/575, measuring 21.1 square yards, situated at Urdu Bazar, Shikarpur under registered sale- deed dated 12-3-1992 from its recorded owner Muhammad Munaf.
3. ' Ejectment was sought on the ground of default, personal requirement and imparing the value and utility of the subject property.
4. ' The tenant disputed the relationship, refuted the allegations of default, denied the personal need and so also impairment to the value and utility of the subject premises.
5. ' Learned Rent Controller framed the following issues:-- ' Whether there exists relationship of landlord and tenant in between the applicant and opponent?
6. ' Whether the opponent has committed default in payment of rent to applicant from 12-3-1992 up to January, 1994 (22 months) at the agreed rate of Rs,250 p.m. Of the shop in question?
7. ' Whether the opponent has damaged the shop in question and has materially impaired its value and utility?
8. ' Whether the applicant requires the shop in question in good faith for his own bona fide use?
9. ' What should the order be?
10. ' Appellant in support of his case examined his attorney Muhammad Munaf. Respondent examined himself in rebuttal.
11. ' Mr. Imdad Ali Awan learned counsel for the appellant argued, that originally Mr. (Attorney of the appellant), was the owner of the subject property he used to collect the rent till his death in the year 1992. It is argued that when the subject property was purchased by the appellant through registered sale-deed, the tenant was informed accordingly with all relevant detail orally, as well as through registered notice, as required under section 18 of the Sindh Rented Premises Ordinance, 1979, calling upon him to pay rent w,e,f, 12-3-1992 at the rate of Rs,250 per month, but to no avail.
12. ' The respondent's predecessor denied the relationship. Though it was admitted that appellant had purchased the subject shop from its recorded owner Mr. Munaf. It was pleaded before the Rent Controller that since the shop was rented out to the predecessor of the respondent by one Rajab Ali, since deceased, who according to respondent, was the landlord. It was pleaded that subject shop in fact was benami and purchased in the name of Muhammad Munaf by (Late) Rajab Ali, the Rent Collector since deceased. It was the case of the respondent that on 2-8-1992 one Quresh Ali, brother of late Rajab Ali filed a suit and claimed ownership of the subject shop being legal heir to late Rajab Ali, who according to him was the real owner, which provided a justification to the respondent to deposit rent in Miscellaneous Rent Application No,7 of 1992 on 20-9-1992 favouring said Quresh Ali and the appellant, according to the respondents no default was committed.
13. ' Learned Rent Controller decided the issue of relationship against the appellant, in arriving at such conclusion, was influenced by the following considerations:---
(1) No title deed was produced by the appellant.
(2) Appellant did not produce any rent agreement with tenant, nor any rent receipt to show that rent was paid to him or to recorded owner Mr. Munaf from whom appellant derived his title.
(3) Title is under dispute as one Quresh Ali, who claimed to be legal heir of Rent Collector, alleged that Mr. Munaf is benami owner.
14. ' As far as the first consideration, recorded above is concerned it is admitted position, that Mr. Munaf was recorded owner of the subject shop.
15. ' In the instant case, appellant had produced extract from the property register card, showing mutation of the subject property in his favour on the basis of registered sale-deed, dated 12-3- 1992. The respondents have not disputed the mutation and title. They only asserted that such transaction to be invalid as one Mr. Quresh All being legal heir to late Rajab Ali had filed a suit claiming title over the property.
16. Once a person establishes that he is owner of the property by virtue of any transaction and tenant is informed of the same then, it becomes obligatory on the part of tenant to pay and tender the rent to the owner thereof.
17. ' In the instant case, admittedly Mr. Munaf was the original owner, but the rent was being collected by late Rajab Ali. This fact alone does not confer any better title upon Rajab Ali nor, such collection of rent by the deceased amounts to depriving the recorded owner to claim and receive the rent or, put fetters on his right to transfer property to any person.
18. ' Real owner being paramount title holder will always have preference over a person who is merely, a landlord and not the actual owner, more ' particularly when the deceased Rajab Ali, the rent collector, never in his lifetime claimed any hostile title against the recorded owner, it was only after his demise, Quresh Ali, Advocate claimed that recorded owner Mr. Munaf was mere benami owner.
19. In a case reported as Baboo Din v. Nasro 1995 M LD 1460 this Court relying in the case of Iqbal and 6 others v. Mst. Rabia Bibi and another reported in PLD 1991 SC 242 held that "mere pendency of suit trying to establish a title in favour of the respondent on their part would not be a bar to the maintainability of ejectment application".
20. ' No sooner, the tenant comes to know either through notice under section 18 of Sindh Rented Premises Ordinance, 1979, or otherwise, that property has vested in some other person, than it is obligatory upon him to pay and tender the rent to the owner thereof.
21. Under the Sindh Rented Premises Ordinance, 1979, a person, who as long is owner of a premises is also a landlord for all intent and purposes, he cannot be stripped of his authority to claim, demand and recover rent or to maintain ejectment application. Under the definition clause section 2(f) of the Ordinance, a person for the time being authorised or entitled to receive rent is recognised as landlord for a limited purposes exercise of such delegated authority by such landlord does not confer upon him any superior right or title better than the owner himself. Authority of such landlord bereft of ownership right is not heritable.
22. ' Once an owner of a property decides to exercise and assert his authority then the tenant is left with no option but to submit to his authority. ' In F.R.A. 108 of 1998 viz. Illahi Bux and another v. Nisar Ahmed. It was held by me as under: "A person found in occupation of a premises of which he is not the owner, any defence taken by such occupant in ejectment proceedings claiming hostile title or interest in the property or claims tenancy under some other person. If such defence does not succeed then conversely the claim of the landlord/owner seeking ejectment of such occupant would succeed and relationship under the Sindh Rented Premises Ordinance would deem to exist."
23. In this view of the matter and more particularly, when the respondent himself had admitted that the appellant is owner of the subject property, the challenge thrown by one of the legal heirs of the deceased Rent Collector by way of civil suit in my humble opinion would not be sufficient to deprive the owner of a property to claim relief under the Ordinance, 1979.
24. ' Upshot of the above discussion is that, there exists, relationship of landlord and tenant between the parties.
25. Once having held that, there exists relationship of landlord and tenant between the parties; receipt of notice dated 21-11-1992 under section 18 of the Ordinance, is admitted then under law it was obligatory on the part of the tenant to pay rent to the owner/landlord within 30 days from the date of receipt of such notice, admittedly no rent was paid to the appellant, on the contrary it was deposited in M.R.C. No,7 of 1992 in favour of one Quresh Ali Shaikh, Advocate claiming title over the property through late rent collector Rajab Ali, which in my opinion is no deposit, more particularly when there is no restraining orders of the Civil Court in Suit No,117 of 1993 filed by said Quresh Ali, the Province of Sindh and the appellant and respondent. Only restraint put by the learned Civil Court is on the transfer of subject property by the appellant, such order in any case would not yield any benefit in favour of the appellant herein as the challenge to claim rent has not been thrown by the respondent but by some other claimant of the property, whose claim is against the appellant. Mere deposit of rent in Miscellaneous Rent Application in favour of any person does not independently create any right or relationship between the parties. Such deposit is subject to all just exception and always without prejudice to the right and obligation of the parties, which are always determined in proper rent proceedings. Such deposit in all cases will not be of any avail or save the tenant from consequences of default.
26. ' The respondent under the circumstances by not paying rent to appellant even after notice has committed a default and is liable for the consequences. Resultantly ejectment application is accordingly allowed on this score.
27. On the issue of personal requirement, appellant has not been able to convince me, that he has made out any case. The need of brothers has not been envisaged under the definition of 'personal use' as given in the Ordinance, section 2(g) which reads as under:-- ' personal use' means the use of the premises by the owner thereof or his wife, or husband, son or daughter."
28. ' From the above definition it is clear that law does not recognise the need of brother for the purpose of maintaining ejectment on this ground. I am afraid ejectment on such ground cannot be granted.
29. ' The respondent is tenant in respect of shop C.S. No,12/575 Urdu, Bazar, Bhitai Bazar, Shikarpur, since long time. He is allowed eight months' time to vacate the shop subject to payment of rent with effect from 12-1-1994 at the rate of Rs,250 per month. Arrears up to 30-4-2000 to be deposited within 2 months and rent w,e,f, 1-5-2000 on or before 10th of each succeeding month, during the occupation and up to time allowed, be deposited in this Court, failing which writ of ejectment be issued without notice.
30. Appeal allowed/