2012 C L C 809
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
IBRAR HUSSAIN ----Appellant
versus
ABDUL KARIM and another ----Respondents
First Appeal from Order No.1 of 2009, decided on 22nd February, 2012.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 2 & 13 ---Ejectment proceedings ---Appellant alleging husband and wife to be his
tenants, sought their eviction from first floor of demised premises ---Denial of relationship of
landlord and tenant by wife claim ing to be owner of land underneath demised premises
purchased and built with her finances by husband, who sold the same to appellant later on ---
Proof ---Evidence on record showed that husband had left suit premises, while wife was still
in its possession pr ior to its sale by husband to appellant ---Husband had never appeared in
court to rebut sale of suit premises to appellant and contest ejectment proceedings ---
Appellant in addition to ownership had to prove his status of landlord and wife and husband
to be his tenants in suit premises ---As per definitions of "landlord" and "tenant" contained in
S.2 of West Pakistan Urban Rent Restriction Ordinance, 1959, entitlement of a person to
receive rent of a premises would be deciding factor about his status of being a landlord or
otherwise ---Right of tenancy being an heritable asset would devolve on wife and children of a
tenant only in case of his death, but not during his life time ---Only a person liable to pay rent
would become a tenant and his mere physical posses sion would be immaterial as premises
could be occupied by a person as licensee or trespasser ---Appellant as per his own assertion
derived status of landlord after purchase of suit premises from husband, but wife had ipso
facto not become tenant of subseque nt owner/petitioner as she was claiming to be in its
possession in her own right of ownership ---Appellant had failed to discharge burden to prove
the wife to be his tenant by leading evidence regarding any rent agreed between them or its
payment to him or its demand by him and refusal by her or service of any notice upon her
demanding its payment ---None of appellant's witnesses had witnessed any payment of rent to
him by wife or her refusal to pay rent ---Wife had filed suit for declaration of her title and
cancellation of sale mutation effected in favour of appellant by husband ---Appellant must
have first got his title declared from a competent court, and then might have filed ejectment
petition against wife ---Ejectment petition was dismissed in circumstance s.
Munir Ahmed Langove for Appellant.
Barrister Iftikhar Raza for Respondent No.2.
Date of hearing: 26th September, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The appellant Ibrar Hussain feeling aggrieved of
the judgment dated 24th November, 2008 of Rent Controller/Civil Judge -I Quetta, whereby
the eviction application filed by him was refused, has filed the instant appeal. The appellant
challenged the judgment on grounds that the trial court failed to appreciate the facts and
circumstances o f the case in true perspective, and based its findings on misreading, and non -
reading of the evidence. Further, the trial court also failed to appreciate the fact that the
respondent No.2 Mst. Qamar Begum had no independent status in respect of the premise s in
question, rather in fact she derived her status from respondent No.l, who was tenant of the
appellant in the disputed premises. It was further contended that this fact was not properly
appreciated that a sale transaction was lawfully effected between him (appellant), and
respondent No.l the previous owner of the premises in question, therefore, a valid title passed
on him (appellant). Therefore, in the state of facts respondent No.2, being wife of respondent
No.1, derived her title as tenant in premise s in question. The appellant contended that
presently respondent No.l had already left the premises and started residing with his second
wife due to some matrimonial dispute, but respondent No.2 along with her children is still
residing therein. Therefore, in the circumstances the tenancy did not cease, rather devolved
on respondent No.2. But these facts were not properly appreciated by the trial court, rather a
contrary view had been taken, which is contrary to law, and facts, thus liable to be set aside.
It was further contended that the trial court failed to appreciate that the denial of existence of
relationship of landlord, and tenant between the parties on the part of respondent No.2 was
mala fide; therefore, she was liable to be evicted forthwith from the disputed premises, but
the trial court failed to exercise the jurisdiction vested in it. Furthermore, findings on each
and every issue were not recorded, therefore, the impugned judgment is non speaking, as
such failed to fulfil the legal requirement, therefore, liable to be set aside. It was prayed that
the impugned judgment be set aside, and the eviction application filed by him be
allowed as prayed for.
2. It is apparent from the record that notices were duly served on both the responden ts,
despite the same only respondent No.2 appeared to contest the proceedings, but there was no
representation on behalf of respondent No.1, who was proceeded against ex parte through
order dated 12th October, 2009.
3. The learned counsel for the parties were heard at length. It was argument of the learned
counsel for the appellant that the property in question was purchased by the appellant, while
an agreement was also executed between him and respondent No.1 on 12th December, 2003.
Where after an agreem ent of tenancy was also executed between them on 13th June, 2004. It
was further his argument that there was sufficient evidence on record, whereby it was
established that a valid title had been devolved on the appellant on basis of the sale
transaction, t herefore, there was no occasion for respondent No.2 to deny the title of the
appellant, for which she was required to be penalized as provided in law. It was further his
argument that respondent No.1 failed to appear before the trial as well as this court despite
effecting of the service, therefore, in the circumstances it shall be presumed that he admitted
the claim of the appellant. Therefore, mere on this fact the application was required to be
allowed, but the trial court took a contrary view, which is not in conformity with law. The
learned counsel further argued that the execution of agreement to sell was an admitted fact,
therefore, respondent No.2 cannot deny her status of being his tenant in the premises, nor his
ownership of the premises in questio n. She was estopped to raise such plea. While replying to
the arguments the learned counsel for respondent No.2 strongly contested the admission of
sale agreement by respondent No.2, rather it was his contention that the documents i.e. sale
agreement, and lease agreement were prepared through fraudulent means, thus of no legal
effect. The learned counsel also pointed out that the sale agreement, which is on record as
Exh.A/5, bears thumb -impression of the appellant, while contrary to it the rent agreement
Exh.A/6 bears signature of the appellant. It was his contention that these facts established that
both the documents were manipulated, and prepared through fraud. It was further his
argument that there is clear mala fide on the part of the appell ant, and respondent
No.1, as they in collusion with each other tried to deprive the respondent No.2 from her legal
right. He prayed for dismissal of the appeal.
4. The perusal of the record reveals that the appellant Ibrar Hussain, while claiming himsel f
to be the owner and landlord of the premises in question bearing Khasra No.214, measuring 0
rod 4 -poles (1060 square feet), Mohal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil and
District Quetta, situated at Mohallah Shahi Bagh, Street No.2, Hazara To wn, Quetta,
described the respondents to be his tenants in first floor of the house at monthly rental of
Rs.2000/ -. It was his case that he purchased the house in question in consideration of
Rs.3,60,000/ - (Rupees three Lacs and sixty thousand) on 12th Dec ember, 2003, from
respondent No.1, and an agreement was also executed between them on even date. And the
possession of ground floor was handed over to him. But, it was agreed between the parties
that respondent No.1 would reside along with his family in th e first floor of the house as
licensee, without payment of any rent till 13th June, 2004. It was further his (appellant's) case
that on 13th June, 2004 the first floor was rented out to respondent No.1 at monthly rental of
Rs.2000/ - (Rupees two thousand), while a rent agreement was also executed between them on
the same date. The appellant claimed ejectment of the respondents on ground of non -payment
of rent w.e.f. July, 2004, and his personal bona fide use and occupation of the premises. It
was his case th at on his demand the respondent No.1 informed him that he had already
vacated the premises, and residing somewhere else, therefore, had no concern with the
premises in question. While, respondent No.2, who is in occupation of the premises in
question, not only refused payment of the rent, but also refused to hand over the vacant
possession of the premises in question.
5. The record further reveals that respondent No.1 also failed to appear before the trial court,
therefore, proceedings were ini tiated against him ex parte pursuant to order dated 10th
February, 2005. But respondent No.2 Mst. Qamar Begum appeared, and contested the
proceedings. In her reply she denied existence of relationship of landlord, and tenant between
her, and the appellant. It was her contention that the land underneath was purchased by
respondent No.1 being her husband with the finances provided by her, and construction was
also raised by her with her own resources. It was her contention that the respondent No.1 had
no righ t or title to enter into sale transaction with the appellant, as he was not the sole owner
of the property in question. It was further her contention that litigation had been pending
before the Family Court between her, and respondent No.1, which was decid ed in her favour
therefore, only to pressurize her for withdrawal of the family suit, these documents were
executed fraudulently, and instant eviction application had been filed.
6. The trial court framed following issues on 26th February, 2005: ---
(i) Whether there exists relationship of landlord and tenant between the applicant and
respondent No.2?
(ii) Whether the respondent No.2 has committed default in payment of monthly rent w.e.f.
August, 2004 upto date?
(iii) Whether the property in questio n is required by applicant for his personal bona fide use
and occupation?
(iv) Whether the applicant is entitled for the relief claimed for?
(v) Relief?
7. The appellant produced six witnesses, and recorded his own statement. While in rebuttal
four w itnesses appeared on behalf of respondent No.2, and she also got recorded her
own statement. The trial court after hearing learned counsel for the parties decided the
matter through judgment 29th November 2008, whereby arrived to the con clusion that there
is failure on the part of the appellant to establish existence of the relationship of landlord, and
tenant between the parties, therefore, the eviction application is not maintainable thereby
dismissed. Feeling aggrieved of the judgment instant appeal had been filed.
8. In present case certain facts appeared from the pleadings, and the evidence of the parties. It
appeared that the respondent No.2 is in occupation of the first floor of the house, which is the
premises in question. Furthe r, it also appeared that the respondents were occupying the house
even before execution of the alleged sale transaction. But later in time respondent No.1 left
the premises, and during pendency of the eviction application he was not residing therein.
Furth ermore, admittedly the ground floor of the house in question is in the possession of the
appellant. In addition the appellant claimed his title in respect of the house in question on
basis of some sale transaction effected between him, and respondent No.l. While he claimed
both the respondents to be his tenants in the premises in question at monthly rental of
Rs.2000/ - since 13th July, 2004. Further, execution of a valid sale -deed along with a lease
deed had been asserted by the appellant being his title deeds. It is to be observed that
both these documents were executed between the appellant, and the respondent No.1, who
never appeared before the trial court, nor before this court, thus failed to rebut the averments.
But as far as respondent No.2 is concerned, she not only appeared before the trial court, but
also appeared before this court, and contest the proceedings. She claimed herself to be the
owner of the house in question, and also claimed her occupation in her own rights. It was her
case that the property was purchased, and thereafter built by finances provided by her to
respondent No.1, being her husband. To establish their respective contentions evidence was
produced by both the contesting parties.
9. In addition to the oral evidence t he appellant produced relevant entry in the Revenue
Record as Exh.A/1, which shows that some property bearing Khasra No.214, measuring 15 -
rods 7 -poles situated in Mohal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil Quetta,
existed in his name. But, this revenue entry failed to disclose that from whose name, and by
whom this property was transferred in the name of the appellant. Further, reliance was made
on the sale -deed, which was placed on record as Exh.A/5, and applicant's witness No.3
(A.W. -3) Muhamma d Afzal confirmed its execution, as he attested the document being
Notary Public. In addition through A.W. -2 Nadeem Ahmed, representative of General Post
Office, three receipts of registered post were produced as Exh.A/2, Exh.A/3 and Exh.A/4. To
rebut the same the respondent No.2 produced oral witnesses, no title deed had been produced
by her to establish that the property in question existed in her name. Rather she only
produced court record through respondent's witness No.4 (R.W. -4) Abdul Rehman, Record
Keeper, as Exh.R/1 to Exh.R/8. Though title of ownership is matter in dispute between the
parties, but as the matter in hand pertains to the dispute, which is to be dealt under the
provisions of the Balochistan Urban Rent Restriction Ordinance, 1959, (Ordin ance-VI of
1959), which is a special law having limited scope, therefore, the decision is to he made
within the ambit provided therein.
10. The appellant though have claimed himself to be the owner of property in question being
purchased by him from resp ondent No.1 but to get relief of vacant possession of premises in
question by eviction of the respondent he has to establish that in addition to ownership he
also attained the status of landlord, and the respondents arc in possession of the premises in
question as his tenants. To understand the term "Landlord" clause (c) of section 2 of the
Ordinance VI of 1959 is to be seen, Wherein it is defined as: ---
"2(c) "Landlord" means any person for the time being entitled to receive rent in respect of
any buildi ng or rented land whether on his own account or on behalf or for the benefit of any
other person, or as a trustee, guardian, receiver, executor or administrator for any other
person, and includes a tenant, who sublets any building or rented land in the man ner
hereinafter authorized and every person from time to time deriving title under a landlord."
Keeping in view the same the term landlord is used in wider sense comparing to that of the
term "owner". Therefore, any person, who is entitled to receive ren t in respect of any building
or rented land, that too, for the time being is considered to be a landlord. It also includes a
person, who may have been receiving rent on his own account or on behalf or benefit of any
other person, with further specification as provided therein, therefore, an owner of a property
is landlord of the premises owned by him, but for becoming a landlord having ownership of
the property is not the condition. In both the cases receiving of rent will be the deciding factor
about statu s of a person of being a landlord or otherwise. It will be beneficial to go through
the term "tenant" which is defined in section 2(i) of the Ordinance -VI of 1959, which reads as
under: ---
"Section -2(i) "Tenant" means any person by whom or on whose accou nt rent is payable for a
building or rented land and includes (a) a tenant continuing in possession after the
termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant,
but does not include a person placed in occupation o f a building or rented land by its tenant,
unless with the consent in writing of the landlord, or a person to whom the collection of rent
or fee in a public market, cart -stand, or slaughter house or of rents for shops has been framed
out or leased by a mun icipal, town or notified area committee, or by the Corporation of the
City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust; and"
Keeping in view both the provisions the status of the parties is to be determined at first
instan ce, where after, the decision is to be made on merits of the case. In present case the
appellant claimed the respondents to be his tenants in the premises in question. As far as
respondent No.1 is concerned, he is admittedly not in possession of the premis es in question,
nor he showed any interest in contesting the proceedings. But as far as respondent No.2 is
concerned, she being wife of respondent No.1 is admittedly in possession of the premises in
question, therefore, in view of the fact it is the appell ant, who has to establish that the
respondent No.2 is occupying the premises in question as his tenant, thereafter he can sought
eviction on ground of default in payment of rent, or on ground of personal bona fide use and
occupation. According to the appel lant the respondent No.2 being wife of respondent No.1
derived her title, and status of tenant from him (respondent No.1), as she had no independent
status of her own. Though right of tenancy is an inheritable asset, as it devolved on wife and
children of a tenant, but only in case of his death. But the relevant provisions are silent to the
effect that in life time of a tenant whether the tenancy can be devolved on his wife or
children? Further, a person becomes tenant only when he is liable to pay rent. Th erefore, the
mere fact of physical possession is immaterial in the circumstances, because the premises can
be occupied by a person as licensee, or even by a trespasser. Therefore, the agreement for
payment of rent is the main feature in such like cases. In present case the appellant as per his
own showings derived status of landlord after purchase of house in question, but the
respondents did not ipso facto become tenants of subsequent owner, because admittedly they
were not occupying the premises as tenant s, rather they were in occupation of house in
question in their own right of ownership. Therefore, the burden was on the appellant to
establish the inception of tenancy between him, and respondents, specially respondent No.2.
From the evidence on record th ere is no material either oral or documentary that any rent was
agreed between the contesting parties, and ever paid by respondent No.2 to the appellant. The
sale agreement as well as the rent agreement were admittedly executed between the appellant,
and r espondent No.1, while respondent No.2 nowhere appeared. There is also no evidence
from which it appeared that the respondent No.2 ever admitted her status of being tenant in
the premises in question, or any demand was made by the appellant for rent, which was
refused by her, or any notice was ever served on respondent No.2 in same respect. None of
the witnesses, appeared from the side of the appellant, witnessed the occasion when either
respondent No.1 or respondent No.2 ever paid rent to the appellant or o n demand refused to
pay the rent.
11. From whole set of evidence, and pleadings of the parties it appeared that the appellant is
claiming his right in respect of the premises in question being its owner as purchaser of the
house in question. While on the other hand the respondent No.2 strongly denied his title, and
claimed her self to be lawful owner of the property. This fact also appeared during course of
proceedings that some civil suit was also filed by respondent No.2, for declaration of her title,
and cancellation of the mutation entry effected in favour of the appellant in the Revenue
Record but fate of the suit has not been disclosed. In such -like situation it was very much
appropriate for the appellant to have approached a court of competent juris diction for
obtaining declaration of his title, thereafter, may have approached the court for eviction of the
respondents from the premises in question, but this was not done.
12. In view of the material on record the appellant had completely failed to e stablish
existence of relationship of landlord and tenant between him and the respondent No.2,
therefore, the trial court had rightly decided the issue No.1 in negative. And in view of the
same there was no occasion for giving any findings on the remaining issues, which was
rightly done. The appellant has failed to make out a case in his favour. Further, no illegality is
pointed out in the impugned judgment, nor instances of misappreciation, misreading or non -
reading of the evidence, and material has been e stablished by the appellant. Therefore, no
interference of this court is required in the findings of the trial court. The appeal, being
devoid of merits, is hereby dismissed, with no orders as to costs.
S.A.K./17/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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