KALSOOM AKHTAR Versus MUHAMMAD YAQUB

1. This is an appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance 1959, which I would refer to as the Ordinance, against the concurrent findings of the learned Rent Controller and VIIIth Civil Judge, lot Class, Karachi, and the learned Additional District Judge, Karachi.

2. The respondent filed an application under section 13 of the Ordinance claiming that he was the landlord of the premises bearing No. K-6-A-39 situated at Slaughter Yard Road, Lyari Quarters, Karachi, and that the appellant was the tenant of the but at a monthly rental of Rs.

10. He claimed that the appellant-tenant had failed to pay any rent since 1st August 1965 and was in arrears till 30th of September 1966. He claimed that the matter had been taken to the Shanbeg Line Union Committee where it was compromised on 3-1-1966, but in spite of the compromise the tenant-appellant failed to pay the arrears of rent and he was, therefore, liable to ejectment. In his written statement the appellant-tenant denied the relationship of landlord and tenant between the parties. He claimed that the but on the plot in dispute belonged to him, having been constructed by him, he denied if he had signed the compromise in dispute with the respondent-landlord and further claimed that he was an illiterate person and was made to sign a piece of paper with no knowledge at all about the compromise. He also took the plea that the Union Committee had no jurisdiction to try the case in question and, therefore, the question of compromise did not arise.

3. On these pleadings of the parties an initial issue about the relationship of landlord and tenant was struck which was decided by the learned Rent Controller, after recording evidence of both the parties on that issue, by his order dated the 15th July 1968, whereby he held that the respondent was the landlord of the premises in question and the appellant was tenant under him. Subsequently, on 23rd August 1968 an order was passed by the learned Rent Controller, directing the appellant to deposit the arrears of rent with effect from 1st August 1965 to 31st July 1968 at the rate of Rs. 10 per month totalling an amount of Rs. 360, in three equal monthly instalments of Rs. 120 each. He was also directed to deposit future rent before the 25th of each calendar month. This order was not complied with. The result was that an application under section 13(6) of the Ordinance was moved on 2-11-1968 claiming that the default in the payment of rent had been committed as ordered on 31st August 1968 arid, therefore, the defence of the appellant-tenant should be struck off. This prayer was accepted by the learned Rent Controller and the tenant was directed to be ejected. This order was appealed against and the Additional District Judge, Karachi came to the conclusion that the relationship of landlord and tenant existed between the parties and, therefore, the defence for non-payment of rent had been rightly struck off. The appeal was consequently dismissed and the tenant was directed to put the landlord in possession within 2 months of the order in appeal which was passed on 12th May 1969. Present appeal is directed against such order.

4. The learned counsel for the appellant has mainly challenged the findings of the Court below on the question of relationship of landlord and tenant between the parties. He contends that the compromise deed Exh. P/1, relied upon by the Courts below for such finding, is an inadmissible document under section 23 of the Evidence Act. Section 23 of the Evidence Act deals with admissions made without prejudice. This section deals with two situations where admissions are made upon an express condition that the evidence of such admission shall not be given or, secondly, no circumstance from which the Court can infer that the parties agreed that evidence of such admission shall not be given. If that be the case the admission made thus would not be relevant in view of the provisions of section 23. In the present case the compromise Exh. P/I does not, by itself, indicate if there was any stipulation that the admissions made therein would stand privileged and, therefore, enjoy the protection under section 23. Independent of the document also there is nothing to show in this section if admissions made therein are privileged as no evidence had been adduced to indicate if such stipulation was made between the parties. The execution of the document has been proved not only by the landlord-respondent himself but also by P. W. Murad Bux, who appeared before the Union Committee as a representative of the tenant-appellant Not only that the tenant-appellant made admissions that that Exh. P/I bears his signature. In view of these admissions the stand taken by the learned counsel for the appellant that the admissions would not be relevant under section 23 of the Evidence Act, is not tenable. In Firm Bulaqiram v. Bhagat Ram (A I R 1926 Lah. 548), the question of admission to a person to whom the parties had gone for compromise had come under examination and it was held that such admissions are not inadmissible in evidence unless there was an express agreement that the evidence of such statements was not to be given.

5. The next objection taken by the learned counsel for the appellant to this compromise is that these admissions are not, by themselves, conclusive proof of the fact contained therein in view of the provisions contained in section 31 of the Evidence Act. This section clearly declares that admissions are not conclusive proof of the matters admitted. But in the present case there is oral evidence also of P. W. Murad Bux who earlier appeared before the Union Committee as a representative of the appellant-tenant who has declared in unequivocal terms that the respondent is the landlord of the premises in dispute and the appellant is the tenant thereof. The admissions contained in the compromise deed Exh. P/1 coupled with this statement conclusively proved the fact of relationship of landlord and tenant.

6. The learned counsel has further argued that the Union Committee of Shanbeg Lane had no jurisdiction to entertain the compromise of the case between the parties. That may be so. But P. W. Murad Bux has stated that at was the appellant himself who had approached Murad Bux in his capacity as B. D. member and the dispute was with respect to the repair of the but in question. In any case the compromise Exh. P/1 would be admissible as an admission independent of the question whether Union Committee had the jurisdiction to decide the dispute between the parties or not.

7. The respondent-landlord has also produced Exh. 9/2, a notice from the Excise and Taxation authorities, which indicates him to be landlord of the property.

8. The learned counsel for the appellant has laid great stress on the point that the respondent-landlord has failed to prove his title over the property and has contended that admittedly the plot under the but belongs to the Karachi Municipal Corporation and, therefore, the respondent-landlord does not have any title over the property and as such he is devoid of the character of a landlord. This argument flows from an erroneous assumption that a landlord has, of necessity, to be the owner of the premises in question. Section 2(c) declares a person to be the landlord who for the time being is entitled to receive rent. It does not insist that the condition of ownership to the building or rented land should be fulfilled before a person could be the landlord of the premises in dispute.

9. The tenant-appellant had initially contended that the but in question belonged to him as he had constructed it himself. But in his written statement before the learned Rent Controller he states that it was constructed by one Khuda Bux. The identity of that Khuda Bux has not been -established. He has further stated that he used to pay rent sometimes to that Khuda Bux. This clearly indicates that his claim that the but was constructed by him is belied by his own evidence.

10. The learned counsel for the appellant has tried to make capital of 'the confusion created about the number of the plot in dispute. The number given in the rent application is K-6-A-39-S-21 whereas it is contended that the actual number is K-6-.A-139-S-1. This fact was put to the respondent-landlord in cross-examination and he has explained that the number 39-S-21 was given by mistake as it was copied from the bill Exh. 9/2 which carried the original mistake. In any case the plot in question is not disputed either in the written statement or in evidence brought on record. The examination of Exh. 9/2 indicates that the number has been written in such a way that it could be read either as 39-S-21 or 39-S-1. It seems that the sign (^) has been written in such a way that it could read as `2'.

11. The learned counsel for the respondent has taken another objection that there being the concurrent finding of fact by the two Courts below about the relationship of landlord and tenant between the parties the question could not be agitated in second appeal. He has relied upon Qamar-uz-Zaman v. Sher Afzal (P L D 1966 Pesh. 119) and Muhammad Ishaque v. Muhammad Rafique (1972 S C M R 450), which are the authorities to the effect that concurrent findings of fact cannot be agitated in second appeal. There is no denial of the fact that this principle applies to appeals under section 15(4) of the Ordinance. but here the findings of the Courts below were being challenged on the question that there was a misapplication of the law involved and such matters can, therefore, be agitated in second appeal.

12. In view of the fact that I have come to the conclusion that the findings of fact arrived at by the two Courts below are not erroneous, nor are they challenged as having been arrived at through misapplication of law, or misappreciation of facts, I find no force in the appeal and dismiss it with costs. The tenant-appellant shall place the landlord to possession of the but in dispute within a period of two months.

13. S. Q. Appeal dismissed.