MADRISSA DARUL ULOOM AL-BAQIAT-- UL-SALEHAT REGISTERED vs THE ADDITIONAL DISTRICT JUDGE (APPELLATE COURT) And Another

1. SALEEM AKHTAR, J.---This appeal with the leave of the Court arises from the judgment, dated 16-3- 1991 of the Lahore High Court, whereby the Constitution petition filed by the appellants was dismissed.

2. The facts have succinctly been stated in the order granting leave which are reproduced as follows:- "The petitioner is a religious institution. It was registered in 1961. In 1963 it obtained on lease about 11 Kanals of land from the Evacuee Trust Property Board. It constructed a Deeni Madrisa, mosque, buildings of schools and some shops thereon. On 6-2-1976 it rented out two of the shops to Khurshid Ahmad, respondent No.2. On 25-1-1987 it moved an application before the Rent Controller for eviction of the respondent on the grounds of non-payment of rent and causing damage to the shops. The application was resisted by the respondent who took up the plea that the relationship of landlord and tenant did not exist between the parties. He admitted that he had executed a rent deed in favour of the petitioner and had been paying rent but alleged that the land allegedly leased out to the petitioner did not belong to Auqaf Department. He further stated that the said land was the property of the Lahore Development Authority from whom he had purchased the same.

3. On the pleadings of the parties the learned Rent Controller framed an issue to the effect:- Whether the relationship of landlord and tenant exists between the parties?

4. After considering the evidence led by the parties he decided the issue in favour of the petitioner and directed the ejectment of the respondent. The respondent filed an appeal before the Additional District Judge. After re-appraising the evidence the learned Additional District Judge reversed the finding of the Rent Controller and set aside the order of eviction. The petitioner invoked the Constitutional jurisdiction of the High Court but without success."

5. Leave was granted to consider a question whether after taking the shop on rent from the appellant was it not open to the respondent to take the stand that he was not the tenant of the appellant.

6. The learned counsel for the respondent pointed out that the respondent had filed Constitution Petition No.4964 of 1989 in the Lahore High Court against the appellant in respect of his title to the disputed property. It however, seems that in view of the dispute to the title, no relief was granted to respondent No.l and he was left to seek remedy from the Civil Court of competent jurisdiction. No steps have been taken by him so far.

7. The learned counsel for the appellant contended that respondent No.l having admitted to have been inducted as a tenant by the appellants cannot challenge their title without first surrendering the possession. The contention seems to be correct and reference can be made to the Province of Punjab v. Mufti Abdul . Ghani PLD 1985 SC 1 where the following observation was made:- "The last argument of the learned counsel is based on the rule of estoppel contained in section 116 of Evidence Act. He is right that under the general law broadly speaking a tenant during the subsistence of the tenancy, cannot question the title of the landlord as it stood at the commencement of the tenancy. If he desires to do so he must first surrender the possession to the landlord and then may dispute his title. If he fails to observe this rule then under section 111(G)(2) of the Transfer of Property Act also, his right to tenancy itself would be forfeited on observance of certain procedural and other conditions. In so far as this general rule of estopple vis-a-vis a tenant and landlord is concerned, it cannot have uncontrolled application to the cases to be determined under the special rent restriction laws. It will depend upon the facts and circumstances of each case. In a recent judgment Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, this Court held as follows:- `So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies the premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevant for the purposes of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his. Statutory duties as provided under the Ordinance. Reliance is placed for this on Amanullah Khan v. Chotey Khan 1979 SCM R 14, Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCM R 443 and Muhammad Yusuf v. Asghar Hussain 1980 SCM R 886."'

8. In the present case the respondent having admitted that he was inducted as a tenant under a written agreement, cannot challenge the title of the appellant without first surrendering the possession to him.

9. The appeal is, therefore, allowed. The respondent may seek remedy as directed by the High Court in Constitutional Petition No.4964 of 1989, and if he ultimately succeeds, he may again enter the premises, in dispute.