SAMANDAR KHAN vs Mst. SITARA BIBI And Other
This matter concerns a dispute over the leasehold rights of a property owned by the Karachi Municipal Corporation. The petitioner, Samandar Khan, obtained a lease for a property already leased to the respondents' predecessor-in-interest, Muhammad Yousuf, by allegedly misrepresenting facts. The core legal question was whether a subsequent lease granted by the municipal authority for a property already under a valid, subsisting lease to another party is legally sustainable without the cancellation of the prior lease. The trial court decreed in favor of the original lessee, a decision initially reversed by the appellate court but restored by the High Court in its revisional jurisdiction. The Supreme Court upheld the High Court's decision, holding that a subsequent lease cannot be validly granted over a property while a prior lease remains in existence and has not been cancelled through proper legal procedure. The principle established is that the existence of a prior, valid lease precludes the grant of a subsequent lease for the same property by the municipal authority, regardless of the subsequent lessee's physical possession.
- Can a municipal authority grant a lease for a property that is already subject to a valid, subsisting lease in favor of another party?
- Is the cancellation of a prior lease a necessary legal prerequisite before a municipal authority can grant a new lease for the same property to a different person?
- Does the physical possession of a property by a third party entitle them to a lease from the municipal authority if a prior lease for the same property already exists?
ABDUL KADIR SHAIKH, J.--By these two petitions, Samandar Khan petitioner seeks leave to appeal from the consolidated judgment of a learned Judge of Sind High Court dated 19-9-1985 dismissing two Revision Applications filed by him.
2. Facts of the case briefly stated are that Karachi Municipal Corporation by a registered lease- deed dated 23-9-1969 leased out plot No.1217/26 Saeedabad Quarter, Karachi to Muhammad Yousuf, predecessor-in-interest of respondents herein. Muhammad Yousuf had allegedly rented the premises earlier to one Muhammad Azam on monthly rent of Rs.30 and on non-payment of rent by the tenant he issued notice to him to vacate the premises. Muhammad Azam left the premises but handed over possession to Samandar Khan petitioner in 1975. It is alleged that Samandar Khan taking advantage of possession and by swearing a false affidavit, secured another lease of the same property from Karachi Municipal Corporation in his own name. In the circum--stances, Muhammad Yousuf filed a suit for cancellation of the lease in favour of Samandar Khan and for possession of the property and mesne profits. Samandar Khan contested the suit, and he also filed a separate suit, bearing No.14 of 1979, for cancellation of lease in Muhammad Yausuf's favour and for injunction on the ground that he was holding property under a valid registered lease-deed in his favour.
3. Learned trial Judge consolidated both the suits, and finally decreed the suit filed by Muhammad Yousuf in his favour and dismissed the one filed by Samandar Khan. Samandar Khan's appeals against the judgments in both the suits were allowed but on Revision Applications filed by the predecessor-in-interest of Muhammad Yousuf, respondents herein, learned Judge in the High Court set aside the judgments and decrees of the First Appellate Court and upheld those passed by the learned trial Judge and allowed the Revision Applications.
4. Mr. Sibghatulleh Hamid learned counsel appearing in support of the petitions submits that the lease in Muhammad Yousuf's favour was contrary to law as he was never in physical possession of the property. Learned counsel further submits that interference by the High Court in its revisional jurisdiction with the finding of fact recorded by the First Appellate Court was not justified.
5. Learned counsel has not been able to refer to any rule or provision of law to the effect that leasehold right of a property belonging to Karachi Municipal Corporation is to be granted only to those who are the occupants of the property. We are also not impressed by the submissions of learned counsel in view of the following findings of fact recorded by the High Court; "Now coming to the merits of the case from the pleading as well as from the evidence of the parties it is clear that there is no dispute about the identity of the property. In the written statement and the plaint filed by the respondent No.1 it has never been disputed that the property claimed by the applicants is different from the property in respect of which lease-deed has been granted to Samanaar Khan. The other aspect of the case which cannot be denied is that the lease to Samandar Khan the respondent No.1 was granted in respect of the same property subsequently.
There is nothing on record to show that the applicants were issued any show-cause notice for cancellation of their lease prior to grant of lease to Samandar Khan. Therefore, the facts on record are that the lease of the applicants is prior in time and was in existence at the time lease in favour of Samandar Khan was granted by K.M.C. So far the grant of lease is concerned, the K . M . C . Has examined one witness and produced affidavit filed by the respondent. No.1 in which he has stated that if any person makes any claim at any stage he would vacate the premises. There was no reason to make such a statement. If Samandar Khan was legally entitled by virtue of his possession he could have claimed the said property without making such statement. In the facts and circumstances of the case, I am of the view that during continuance of the lease-deed in favour of Muhammad Yousuf, no lease-deed could have been granted in respect of the same property to any other person, even to a person who may be in possession of the said property unless proper and legal procedure had been adopted for cancellation of the earlier lease-deed and the same had actually been cancelled.''
In view of these findings interference by the High Court with the judgments of the First Appellate Court in exercise of revisional jurisdiction is not open to any exception in law. Both the petitions are therefore dismissed.