1. ' Present appellants/opponents have called in question the impugned order dated 6-4-2000, passed by IVth Rent Controller Hyderabad, in R.A. No,182 of 1995, whereby he has been directed to handover the vacant peaceful possession of the suit premises in question to the respondent/applicant within 60 days from the date of the impugned order. Hence this appeal.
2. ' Brief facts of the case are that the respondent/applicant filed ' rent application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the appellants/opponents for their ejectment from the suit premises. City Survey No,G/1801, Manghar Para, Gurunagar Hyderabad, was oermanently transferred to deceased Fakir hammad the father of the respondent/applicant vide P.
3. T.D . No .7243 dated 22-8-1963, the name of Fakir Muhammad was also mutated in City Survey record. The father of the respondent/landlord deceased Fakir Muhammad died on 13-8-1995. The appellant/Opponent No,1 contested against the transfer of the case premises in favour of deceased Fakir Muhammad in Settlement Revision No,73 of 1966 which was allowed by the learned District Judge, Ex-Officio Settlement Commissioner, Hyderabad, vide his order dated 9-2-1966 but the said order was set aside. Vide judgment dated 24-11-1971, by this Court at Balochistan/Karachi in C.P. No,251 of 1966. Thereafter, appellant/ opponent No,1 filed F.C. Suit No,177 of 1972 in the Court of 1st Senior Civil Judge, Hyderabad, in which transfer of case premises in favour of deceased Fakir Muhammad was again challenged but the said suit was dismissed on 30-7-1976, and the Civil Appeal No,262 of 1976 filed by appellant/ opponent No, 1 was also dismissed on 21-12-1980 by the learned IInd Additional District Judge, Hyderabad. Muhammad Hashim the father of the appellant/opponents Nos.1 to 7 was found to be statutory tenant of case premises, therefore, statutory notice was sent to Muhammad Hashim through registered post acknowledgment by said Fakir Muhammad and thereafter, the said Fakir Muhammad filed Rent Application No,158 of 1964 in the Court of Joint Civil Judge/Rent Controller Hyderabad, vide order dated 26-11-1964 passed ejectment order against Muhammad Hashim. An Execution Application No,2 of 1965, was also filed but due to the proceedings before this Court and subsequently Suit No,177 of 1972 and Civil Appeal No,262 of 1976 the Execution Proceedings were stayed. It is also alleged by the respondent/landlord that his father deceased Fakir Muhammad had also filed Rent Application No,162 of 1990, which was dismissed for non-prosecution on 23-7-1992. It is further alleged in the application that appellant/opponents Nos.1 to 7 parted possession of the portion of the suit premises to one Naseer Khan Rind who died during the pendency of the case and his L.Rs, Nos.8 and 9 were joined as party to the proceedings so also the appellants/opponents Nos.1 to 7 are defaulter in payment of rent and they have not paid rent to the respondent/landlord from March 1965 to August 1995, at the rate of Rs,341..RF month and the respondent/landlord also requires suit premises for his personal bona fide use and, therefore, the ejectment application was filed.
4. ' The appellants/tenants in their written statement denied the relationship of landlord and tenant between the parties and have taken the stand that they were not party to the litigation between the father of the respondent/landlord deceased Fakir Muhammad and Muhammad Hashim. It is further alleged in written statement that suit premises was a plot which is constructed by the ancestors of the appellants/opponents and the structure belongs to the appellants/opponents and the respondent/landlord has no right, title or interest in the super structures. The appellants/opponents denied that case premises is required by the respondent/landlord for personal use, they also denied to have parted with the possession of the portion of the suit premises to the deceased husband of appellants/opponents Nos.8 and 9.
5. ' Respondent/landlord has filed his affidavit-in-evidence as Exh.47 and he was subjected to cross- examination by the learned counsel for opponents/appellants :Lnd after that the learned counsel for the opponent/landlord closed the side of evidence. Respondent/landlord also produced true copy of Extract from the Property Register Card as Exh.89/A, certified true copy of order dated 24- 11-1971 passed by this Court as Exh.89/B, certified true copy of judgment dated 21-12-1980 passed by the learned II-Additional District Judge, Hyderabad as Exh.89/C, Form P.T.I, dated 12-4-1966 as Exh.89/D certified true copy of Rent Execution Application No,2 of 1965 of Rent Application No,158 of 1964 and order dated 25-11-1964 as Exhs.89/E and 89/F respectively.
6. ' The appellant/opponent No,6 Mst. Gulshan Ara filed her affidavit-in-evidence as Exh.93. She was also subjected to cross-examination and thereafter, learned counsel for the opponent/appellant closed the opponent/appellant's side. She has produced certified true copy of an application under Order 9, rule 13, C.P.C. Filed in R.A. No,162 of 1990 as Exh.93/A.
7. ' The learned Rent Controller formulated the points as under:--
(1) Whether there exists relationship of landlord and tenant between the parties?.
(2) Whether the opponents have committed wilful default in payment of rent?
(3) Whether case premises is required by the applicant for his personal bona fide use?
(4) What should the order be?
8. ' Learned trial Court after going through the arguments advanced by the learned counsel for the parties and having gone through the evidence brought on record and documents, passed the impugned order in terms as stated above.
9. ' I have heard learned counsel for appellant Mr. Saeeduddin Siddqui and Mr. Hassan Mehmood Baig) learned counsel for the respondents and I have also gone through with their assistance the evidence zuced by the parties before the Rent Controller and the documents and other material available on record.
10. ' Mr. Saeeduddin Siddiqui, learned counsel for the appellants argued only on the point of relationship between the parties of landlord and tenant and argued that the Rent Controller has not distinguished between ownership and the landlordship. Ownership documents are not being supported by any cogent reasons. It is not clear whether the suit premises is house or plot. Mr. Saeeduddin Siddiqui, invited my attention at page 49 of the R & Ps which is a document 'Extract from Property Register' and argued that the said document does not confer any Entitlement in possession of the respondent/landlord. He has further submitted that the documents like P.T.O. And so many documents have not been taken into consideration by the learned Rent Controller. He has further submitted that no proper weight has been given by the Rent Controller on Issue No,1. He has further submitted that the point of plot has not been discussed by High Court and it is not clear from the order of the High Court whether it is a plot or home. He has further argued that the illegality has been committed in transfer of this premises and finally submitted that it is a fit case for remand to the trial Court.
11. ' On the other hand Mr. Hassan Mehmood Baig, learned counsel for the respondent invited my attention on the order of this Court dated 24-11-1971 and has submitted that in the light of the judgment dated 24-11-1971, this Court has decided the Petition No,251 of 1966, wherein it has been held that the Ex-Officio Settlement Commissioner had no jurisdiction to cancel P.T.D. Issued in favour of the petitioner namely Fakir Muhammad. It will, however, be opened to respondent No,1, if so advised to challenge the transfer of the disputed house in favour of the petitioner in any other appropriate proceedings. The petition was accordingly accepted and the declaration is granted as prayed. According to Mr. Hassan Mehmood Baig, in view of such judgment given by this Court the word is mentioned 'house' not 'plot' and according to Mr. Baig that the appellants/opponents then filed F.C. Suit No,177 of 1972, which was dismissed. Subsequently they went in appeal that too was dismissed and it has been clearly decided by the Courts below that suit premises is a house and it is also evident from the record and the decisions given by the Courts below. Even this Court while passing judgment on 24-11-1971 has mentioned the name of house and no where it is mentioned that the suit premises is a plot. According to Mr. Baig there are documents available on record which are very clear and have established that the respondent/landlord is the owner of the suit premises and relationship between the parties as landlord and tenants has been admitted which is very clear from the record. Since relationship has been admitted according to Mr. Hassan Mehmood Baig the default has been committed by the appellants opponents and finally submitted that the appeal has no merit and prayed for the dismissal of the appeal.
12. ' Admittedly there is a judgment of this Court dated 24-11-1971 and it has been clearly mentioned in the aforementioned judgment of this Court that the suit premises is disputed house and the matter was decided in favour of Fakir Muhammad the father of the respondent/landlord. Admittedly the appellants/opponents have filed First Class Suit before the competent Court of law that was dismissed, thereafter, they have preferred an appeal that too was dismissed. The documents available on the record reveal that the respondent is the landlord of the suit premises. I have also very minutely gone through the impugned order and the learned Rent Controller has discussed in detail each and every issue and the prayer of the learned counsel for the appellants that it is a fit case for remand is not receptive as the learned Rent Controller has discussed all the documents available on the record. I have also examined very carefully the evidence and therein it is very clear that there is relationship between the parties as landlord and tenant. Since the learned counsel for the appellant has only discussed Issue No,1 with regard to relationship of landlord and tenant between the parties, which is established from the record and thereafter no rent has been paid to the respondent/landlord by the appellants/tenants. I have also examined the evidence and the evidence of the respondent/landlord has not been challenged during his cross-exmaination which also amounts to admission by the opponents/appellants. I do not find any defect in the impugned order which is based on sound reasonings and I am not inclined to interfere with the impugned order dated 6-4-2000 and accordingly appeal is dismissed. However, the appellants/ opponents are directed to hand over the vacant possession of the suit premises in question within six (6) months from today.
13. ' Above are the reasons for my short order dated 12-3-2001.
14. Appeal dismissed/