2018 YLR 2276

Haji HABIBULLAH Versus ANJUMAN-E-ISLAMIA, BALOCHISTAN

Citation2018 YLR 2276

CourtBalochistan High Court

Judge(s)Muhammad Noor Meskanzai, C.J. Haji HABIBULLAH and 5 others--

MUHAMMAD NOOR MESKANZAI, C.J.--- Through this common judgment, I propose to dispose of Civil Revision Petitions Nos. 328 and 329 of 2012 as identical question of law and facts are involved in both the matters.

2. Facts relevant for disposal of instant petitions are that the respondent instituted Civil Suits Nos. 35 and 41 of 2010 for ejectment and injunction against the petitioners in the Court of Civil Judge-V, Quetta with the averments that the respondent/plaintiff is a registered society under the Societies Act, 1860 and owner of properties bearing Khasra Nos. 597, 598, 599, 601, 602, 603, 604 , 605 to 612, 645, 616, 618 to 620 measuring approximately 65850 Sq: ft: situated in Ward No.38, Wafa Road, Tehsil and District Quetta. The respondent from time to time had been letting out the units of the aforesaid plots to different parties including the petitioners for the business purpose and trade as well as residence against the payment of rent and different portions of the above plots are in occupation of the various tenants including the petitioners/defendants. It was averred in the plaint that the petitioners are in occupation of the piece of land measuring 188 20 Sq ft having Khasra No.599, which was leased out to the predecessor in interest of petitioners namely Haji Ajab Khan by means of registered deed dated 10.01.1959 in lieu of monthly rent of Rs.110/- in the year 1959. The plots in occupation of petitioners were required by the respondent, as such eviction applications were filed against the tenants, which were dismissed by the Rent Controller, however, the respondent filed FAO Nos.61 and 72 of 1994 which were allowed by this Court vide judgment dated 22.12.1994. The predecessor of petitioners namely Ajab Khan challenged the same before Hon'ble Apex Court by way of filing CPLA Nos.28 and 29-Q of 1995 which were disposed off on the basis of compromise vide order dated 01.11.1995. It was further stated in the plaint that Anjuma-e-Islamia/respondent has neither entered into any compromise nor authorized Abdul Sattar Durrani to do so, therefore, cheques of Rs.75000/- each were returned through counsel and the rent remitted by the petitioners in pursuance of void agreement/compromise deed was also refunded to them. In the year 1999 the petitioners attempted to raise constructions over the disputed plots which was resisted and the respondent filed a suit but in the meanwhile the petitioners constructed katcha structure on the said plots and came up with the plea that respondent had executed an agreement through its Secretary namely Abdul Sattar Durrani. The suit filed by the respondent was dismissed by Civil Judge-V, Quetta vide judgment and decree dated 20.05.2000, which was challenged before Additional District Judge-V, Quetta who accepted the appeal by means of judgment and decree dated 14.2.2001. The petitioners feeling aggrieved of the said judgment and decree filed Civil Revision Petition No.201 of 2001 before this Court which was disposed off vide order dated 14.12.2004 on the undertaking by the petitioners that they will not raise further construction. The respondent in order to expand its educational set up i.e. Educational Institution in the name of College for Boys resolved to construct the same on its property situated at Wafa Road and building plan was duly approved from QMC, as such, tenants were approached for handing over vacant possession of the portions in their respective occupations, but to no avail. Hence, 22 eviction applications were filed and the same were accepted by the Rent Controller, against which the tenants filed appeals before this Court which were allowed on the ground of jurisdiction i.e. the matters do not fall within jurisdiction of Rent Controller. The present premises were subject matter of FAO Nos.110 and 111/2000. The property was required for construction of a college and the lease period had since already expired. So, a notice under Section 106 of the Transfer of Property Act, 1882 dated 28.4.2007 was sent but the petitioners failed to hand over the vacant possession of the suit property, therefore, the respondent filed the suit for ejectment and injunction with following prayer:-- a. For ejectment from piece of land measuring piece of land measuring 18820 sq. ft. having Khasra No.599, situated at Wafa Road, Quetta. b. Directing them to remove the superstructure existing on the Suit-property. c. Pending disposal of suit, the defendants be restrained from raising any construction or being any change in the existing structure on the plot in question. d. Any other relief as may be deemed fit and appropriate in the circumstances of the case may also be awarded, along with cost of the suit."

3. The suit was contested by the petitioners/defendants, by way of filing written statements, whereby, besides raising certain preliminary legal objections, the claim of plaintiff/respondent was repudiated on merits as well. The trial Court, out of the pleadings of the parties framed following issues:-- i. Whether the suit of plaintiff is not maintainable in view of preliminary legal objections raised by defendants in their written statement? ii. Whether the plaintiff is entitled for relief claimed for? iii. Relief?

4. The suit was dismissed at initial stage by the trial Court vide order dated 11.05.2009, which was assailed before Additional District Judge-I, Quetta who after hearing the appeal remanded the case back to the trial Court with directions to record evidence of the parties and then decide the matter in accordance with law. Feeling aggrieved of the judgment passed by Additional District Judge-I, the petitioners approached this Court by way of filing civil revision petition which was dismissed. After remand the trial Court on 06.4.2010 framed following issues: i. Whether property bearing Khasra No.599, measuring 7350 square feet situated in Ward No.38, Wafa Road, Quetta is required by plaintiff to expand its educational set up and to establish Boys' College and for this purpose lease of the suit property has been terminated by plaintiff through notice of termination of lease? ii. Whether the plaintiff is entitled for the relief claimed for? iii. Relief?"

5. Needless to observe that the issue pertaining to preliminary objection raised by the defendant was dropped by the trial court and the parties led evidence in respect of issues framed after the remand. Both the parties produced their evidence pro and contra besides recorded their own statements. The trial Court after hearing the arguments and evaluating the evidence, vide judgments/decrees dated 29th August, 2011 decreed the suits. The petitioners feeling aggrieved of the judgments/decrees passed by the trial Court preferred appeals before Additional District Judge-I, Quetta, which too were dismissed vide judgments and decrees dated 13th August, 2012, hence the instant petitions.

6. Learned counsel for the petitioners contended that the suit was not competent because the matter falls within the jurisdiction of Rent Controller. It was maintained that the plaintiff failed to produce sufficient evidence in support of their claim. The petitioners as a tenant have been paying the rent without any failure on their part. However, on refusal of the landlord to receive the rent the petitioners deposited the with the court. He further stated that the lease was renewed through lease deed executed by the respondent's attorney in the year 1995 and in view of the subsequent lease deed the petitioners raised construction and spent huge amount. He submitted that the respondent has got other sufficient property in the same vicinity which is more proper and suitable site for construction of the College. Both the courts below have mis-appreciated the facts, mis-lead the evidence and mis-applied the law, therefore, findings are liable to be interfered with by this court while exercising revisional jurisdiction.

The learned counsel for respondent while filing written arguments has sought dismissal of petitions on the ground that there is no misreading or non-reading of evidence. The respondent/plaintiff has proved his case to the hilt. The concurrent findings of fact cannot be interfered with by the revisional court.

7. I have considered the arguments so advanced and gone through the available record with the valuable assistance of the learned counsel for the parties. Perusal of the record reveals that the respondent is the owner of the property and the plots in question were leased out to predecessor in interest of the respondent in the year 1959 for a period of 10 years and extendable for further 5 years with the following terms and conditions:--

8. After expiry of extended period, the respondent tried to get the premises vacated by initiating proceedings before the Rent Controller. These proceedings went up-to the Hon'ble Supreme Court of Pakistan and during the pendency of CPLA the predecessor of the petitioners succeeded to maneuver a compromise with the attorney of the respondent behind back and without intimation, knowledge and consent of the respondent. The proceedings initiated for eviction of the petitioners were consigned to record in view of the compromise. Thereafter, the petitioners as per terms and conditions of void lease deed dated 20.7.1995 sent a sum of Rs.75,000/- as donation to the respondent and the respondent refused to collect the donation and rent as fixed through the lease deed referred to hereinabove. The respondent served the petitioners with the notice under Section 106 of the Transfer of Property Act, 1882 sought ejectment of the petitioners on the ground that the property in question is needed to the respondent for construction of Boys College as the lease period has already expired. The respondent No.3 during these proceedings produced one PW and got exhibited the notice served under Section 106 of the Transfer of Property Act, 1882. The respondent contested the suit on the ground that the property in question is not suitable for construction of Boys College. Moreover, the respondent has got other property in the same vicinity which is more sufficient for construction of Boys College and besides, the respondent has renewed the lease and filed the lease deed dated 20th July, 1995. To substantiate its claim, the respondent produced 3 DWs.

9. Since the ownership of the respondent and the expiry of the lease deed executed in the year 1959 were not disputed, the petitioners were basing their case mainly on the subsequent lease deed which in my opinion was not proved at all. The respondent produced lease deed as Ex-/D-1 through DW-1 who is the only marginal witness, neither the scribe nor rest of the marginal witnesses were produced meaning thereby this document could not be proved as required by Article 17(2) of the Order of Qanun-e-Shahadat. The facts available on record leave no room for doubt that life of lease has expired since 1974 and thereafter there is no written lease executed by the respondents in favour of petitioners. The respondent has been trying to get the premises vacated since 1990. The respondent succeeded to get an eviction order in its favour from this Court against which CPLA Nos.28 and 29-Q/1995 were filed before Hon'ble Apex Court and the petitioners with connivance of the then Secretary Properties, Injuman-e-Islamia got filed an unauthorized and illegal compromise and the eviction proceedings were consigned to record. The respondent refused to collect rent and remitted the sum of Rs.75,000/- donated to the Anjuman-e-Islamia. The petitioners started raising illegal construction at the strength of manipulated compromise dated 20.07.1995. The respondent filed a civil suit against the started construction, which was decreed by the appellate Court and that decree was maintained by this Court. The respondent feeling constrained with the circumstances and retention of the illegal possession of the premises filed (22) eviction applications including the subject matter of the present proceedings. The eviction applications were accepted by the Rent Controller, however, this Court vide its judgment dated 13.12.2002 allowed the appeals and dismissed the applications on the ground of jurisdiction by holding that the premises under dispute do not fall within the definition of "rented land", therefore, the applications before Rent Controller were not competent. The FAO Nos. 110 and 111 of 2000 cover the present disputed lands, as such, the observations of this Court are relevant which read as under:--

"For the fore going reasons I am of the considered view that the plots which are subject matter in F.A.O. Nos. 140/2000. 141/2000. 158/ 2000, 110/2000, 111/2000, 117/ 2000, 147/2000, 148/2000 and being not used principally and chiefly for the purpose of business or trade; are not "rented land", therefore, Rent Controller has no jurisdiction in the matter."

10. During this period the respondent did not receive rent and the rents were deposited in the Court, ultimately the present suits were filed by the respondents. In the given circumstances of this case there is no room for doubt that the petitioners cannot claim to be tenants at will nor they have been able to prove their status as a tenant holding over, hence no question of tenancy as contemplated by Section 116 of Transfer of Property Act arises. The petitioners may at best be equated with that of the tenant at sufferance because the respondent never consented for retention of possession either express or implied nor received rent as per the so called agreement dated 20.7.1995. The respondent is a Society registered under the Societies Act, 1860 and running Educational institutions at Quetta, in order to expand the educational set up in the area for the benefit of masses, the respondent is trying to construct a Boys College but unfortunately the attempts of respondent were not allowed to bear fruit because of the greed and selfishness of the petitioners. So, if for the sake of argument the petitioners may be treated tenant at sufferance even then they do not have a right to retain possession of the property in question anymore the and are liable to be ejected from premises in question forthwith. By holding the view I am supported by a plethora of judgments and some of them are reproduced herein below for ready reference:--

PLD 2018 Supreme Court 81 titled as Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others.

"11. Thus, as per the clear mandate of section 6 ibid, such a tenancy shall come to an end after the expiry of the term of tenancy and if thereafter the tenant holds such a property without the consent of the landlord, it shall be a clear violation and the infringement of the condition of the tenancy, on which the property was held by him, because the condition of tenancy is for a particular period of time either by the terms stipulated in the tenancy agreement or by the afflux of time, which is specified in section 6 (ibid.) itself. Thus, the case is squarely covered by section 17(2)(ii)(b) of the Ordinance, 2001. Much emphasis has been made on the language of section 17(1) of the Ordinance, 2001 that a tenant shall not be evicted except in accordance with the provisions of the said Section, wherein certain specific grounds have been provided and Section 6 ibid has been made subject to section 17 ibid which means that it is sub-ordinate and subservient to the said Section. In this regard it is to be noted that in Black's Law Dictionary, Fifth Edition, the term "subject to" has been defined as under:-

"Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for." (emphasis supplied)

Thus, the expression "subject to" cannot always be construed as 'limited to, but can also be read as 'provided that" or 'provided", which means that section 6 ibid would be applicable provided that there is a ground available in section 17 ibid. Therefore, applying the above said definition to the expression "subject to" a tenant, who holds the property beyond the term of tenancy, under section 17(2)(ii)(b) of the Ordinance, 2001 shall be evicted from the premises which is held on the condition for holding it for a specific period of time if he continues to occupy the rented property beyond such period without the "written consent" of the landlord. Eviction of the tenant thus will be on the grounds of violation of the term of tenancy which will be seen as a condition of the tenancy agreement. This purposive and harmonious interpretation of Section 6 ibid, when it interplays with the provisions of section 17 ibid gives effect to both the allegedly conflicting provisions of the Ordinance, 2001. If some other meaning is given thereto, it shall render section 6 ibid completely redundant, with the consequence that though the tenancy after the expiry of the agreed or statutory period has come to an end and is extinguished as per section 6 ibid, yet the landlord cannot seek the eviction of the tenant and may have to seek eviction only on any of the grounds mentioned specifically in section 17 ibid, such as, default in payment of rent, subletting, reconstruction, personal requirement, damage to the property. This would lead to ludicrous legal consequences in that not only shall section 6 ibid be rendered redundant and nugatory; it shall allow a tenant of the property to continue to occupy the property though he has no right to occupy the same, as his tenancy per the command of law is no more valid. This shall be the most illogical and most ineligible interpretation of section 6 ibid when read with section 17(2)(ii)(b) of the Ordinance, 2001. So far as the argument that in the Act, 2009 a separate ground for eviction, on account of expiry of tenancy, is specifically mentioned is concerned; suffice it to say that in some later laws on the same subject, Provinces have become wiser to make the law more clear. However, it does not mean that the law earlier in force in Islamabad should be interpreted on the basis of a later provincial enactment. As far as the argument about the definition of the 'tenant' provided in section 20) (supra) is concerned, we are of the considered view that the definition given therein is for the purpose of conferment of jurisdiction upon the Rent Controller, and provides the landlord a right to apply for eviction of the tenant occupying the rented property on an invalid tenancy under the provisions of the Ordinance, 2001. It does not affect either the clear provisions of section 6 and/or the provisions of section 17(2)(ii)(b) of the Ordinance, 2001.

12. Thus, we conclude that as after expiration of the tenancy period, a tenant, though can continue to hold over the possession of the rented premises, but his tenancy is rendered invalid, in that, it has come to an end and if there is no express consent of the landlord to extend the tenancy period the tenant shall be guilty of having infringed the conditions of tenancy, rendering him liable to be evicted under section 17(2)(ii)(b) of the Ordinance, 2001. In the light of the above, we do not find any merit in these appeals, which are hereby dismissed."

PLD 2003 Lahore 389 titled as Mian Abdur Rashid v. Province of Punjab, through District Collector, Okara and another.

"It is settled principle of law that a tenant occupied the premises without the consent of the landlord is a tenant by sufferance and his status is not better that a trespasser and can be ejected at any time. In arriving to this conclusion I am fortified by the following judgments:--

Rehman Cotton Factory v. Nichimen Company Limited (PLD 1976 SC 781); Noor v. M. Singh (1958 IC 18 (PC)) and Punjab National Bank v. S.D. Chaudhry (AIR 1943 Oudh 392)."

2005 SCMR 357 titled as Malik Naveed Ahmed v. Mrs. Nasreen Hameed.

In Halsbury's Law of England, Fourth Edition, Re-issue, 1994, Vol. 27(1) p.163, para. 176, it is stated that "A person who enters on land by a lawful title and after his title has ended, continues in possession without statutory authority and without obtaining the consent of the person then entitled, is said to be a tenant at sufferance, as distinct from a tenant at will who is in possession with the landlords' consent". We may also observe here that the provisions of the Act are not applicable as such to Islamabad Capital Territory. Their strict and meticulous adherence may not be insisted upon in all cases. Nevertheless, the principles of equity, justice, and good conscience thereof are generally followed. Reference may usefully be made to the cases of Barkat Ullah Khan v. Abdul Hamid 1981 SCMR 1200 and Ch. Hamid Ali v. Ch. Rehmat Ali and 5 others 1993 CLC 1409 and Shabnam Ashraf (supra).

PLD 1970 Lahore 455 titled as Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. Karachi.

In order to prove that the appellant was a tenant holding over it was the duty of the appellant to establish by evidence on record that he remained in possession of the factory with the expressed or implied assent of the landlord. In the absence of any proof on record that the landlord or any person authorised by him in this behalf had received any rent from the appellant or otherwise assented to his remaining in possession, no tacit renovation of the tenancy as envisaged by section 116 of the Transfer of Property Act, 1882 takes place.

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No further notice to quit was necessary. Moreover as we have held that the appellant's possession of the factory after the 30th of June 1956, was that of a tenant by sufferance the tenancy was liable to termination without notice or demand on the part of the respondent. A tenancy at sufferance is merely a fiction of law and the term is used to distinguish a possession rightful in its inception but wrongful in its continuance. Therefore, when a tenant remains in possession of leased premises after the expiration of the term in defiance of the authority of the lessor he is not entitled to a notice to quit under section 106 of the Transfer of Property Act. There is no dearth of authority that a notice to quit is not necessary for such a tenant and in this context reference can be made to Gokul Chand v. Shib Charan (13 I C 59) and Ch. Bansidhar v. Ram Charan and another (AIR 1940 Oudh 401)."

1987 CLC Karachi 591 titled as Messrs Hyesons Comercial and Industrial Corporation Ltd. v. The Trustees of Karachi Port Trust.

"A tenant occupying without the consent of the landlord is a tenant by sufferance and his status is no better than a trespasser and can be ejected at any time without any notice to him. Reference can be made to Noor v. M. Singh 53 I C 18 (PC), and Punjab National Bank v. S.B. Chaudhry 1943 Oudh 392. It may be noted that this rule applies where the provision of the Rent Restriction Ordinance do not override Transfer of Property Act."

For the foregoing reasons, I am of the considered opinion that the concurrent findings of fact drawn by two courts of competent jurisdiction do not suffer from any misreading and non-reading of evidence nor any jurisdictional defect in the proceedings could be pointed out by the petitioners. Both the courts below after proper application of judicial mind have rightly decreed the suits, therefore, the instant revision petitions are dismissed with cost through out.

ZC/35/Bal Revisions dismissed.