KALIMULLAH Versus AMIN HAZIN

1. HAMOODUR RAHMAN, C. J. The dispute in this case relates to property No. 11/13, Street No. RY‑9, situated on Mcleod Road, Karachi. ,

2. Originally this property belonged to Hindus, who later migrated to India from Pakistan. But it appears that on the 10th May 1.947, before migration, they had entered into an agreement to sell this property to Noman' Bhai, Dawood Bhai and Jamil Noman. Subsequently, on the 3rd November 1947, they also executed a registered sale deed in their favour. The purchasers, thereafter, on the 11th May 1948, executed a general power of attorney in favour of one, Qamaruddin, for the management and supervision of this property. A day earlier they had also entered into an agreement to lease the property to the said Qamaruddin for a period of ton years on condition that he would construct a three storied building thereon.

3. On the 30th November 1948, a lease deed was also executed in favour of the said Qamaruddin for a period of ten years on a monthly rental of Rs. 400. One of the other conditions of the lease also was that, on the expiry of the terms of the lease, the entire construction on the ground floor built up by Qamaruddin would vest in the lessors without, payment of any compensation.

4. Qamaruddin in his turn on the 15th March 1949, leased out the built-up portion of the said property to Amin Hazin and Fateh Muhammad Khan, the respondents Nos. 1 and 2; on a monthly rental of Rs. 926, for period of ten years.

5. The respondent No. 1 is the Managing Director of Messrs. Sungreen and Company limited and the respondent No. 2 is his partner in 'business, but since he did not contest the case, no order was made against him.

6. The respondent No. 1, in his turn on 15‑3‑1953, sub‑let a portion of the leased property under his occupation to the present petitioner at a monthly rental of Rs. 426 under an agreement executed to that behalf. At the time of the execution of the lease, the petitioner paid by way of advance rent a sum equivalent of 18 months' rent, amounting to Rs. 7,650. On this agreement, it was also stipulated that the petitioner would no sublet any portion of the premise.

7. T he petitioner did not pay any further rent after the advance rent was exhausted. The respondent No. 1, therefore, applied for the ejectment of the petitioner and respondent Nos. 2 and 3, on the 29th September 1965, not only on the ground of default but also on the ground of sub‑letting the premises to respondent No. 3.

8. Respondents Nos. 2 and 3 did not contest the matters. The petitioner alone contested the proceedings on the ground that the Rent Con troller had no jurisdiction in the matter, as the property was an evacuee property.

9. Two preliminary issues were, accordingly, framed by the Rent Controller, namely:‑

(1) Whether there is any relationship of landlord and tenant between the applicant and opponent No. 1 ?

(2) Whether the premises in question are evacuee property and the applicant has no right to collect the rent ?

10. These issues were decided against the petitioner and then the petitioner was directed to deposit the arrears of result from September 1954 to October 1947, amounting to Rs. 66,937.50, after adjusting any amount deposited by the petitioner, within ten days. The petitioner was also directed to pay future rents before the 15th day of each subsequent month.

11. Against this order, the petitioner went in appeal to the Additional District Judge, Karachi, without any success. He then came to the High Court of Sind & Baluchistan in a second appeal. The High Court took the view that since the petitioner had accepted the tenancy 'under the respondent No. 1, he was estopped, under section 116 of the Evidence Act, from, challenging the title of his landlord, whatever the status of the property might be.

12. The petitioner now seeks special leave to appeal. Learned counsel appearing in support of this petition has urged that the High Court was wrong in taking the view that the petitioner was estopped from raising the question of jurisdiction of the Rent Controller. We are unable to agree. It seems to us that the High Court hits rightly held that once a person has accepted another as his landlord and entered into possession of the premises as such tenant, he cannot be allowed to challenge the title of his landlord.

13. We see no reason, therefore, to interfere. This petition is accordingly, dismissed.

14. Leave refused.