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Second Civil Appeals Nos. 191 to 202 of 1966, decided on 12th June 1968.

, S. 13 (b)‑Jurisdiction of Controller‑Controller before assuming jurisdiction and before directing deposit of arrears and rents must determine existence of relationship of landlord and tenant between parties‑Respondent, a "Mahunt" showing himself as owner of property in ejectment application‑Appellant contending that pro perty was to fact attached to Hindu Monastery of which respondent was a Mahunt and that respondent not being owner could not maintain ejectment application‑Controller declining to determine ownership, etc. making order for deposit of arrears and rents‑Addi tional District Judge, in appeal, striking of defence of appellant on ground of failure in depositing arrears and rents‑Held, the question whether respondent was legal owner of property raised the issue whether relationship of landlord and tenant existed, it was incumbent upon Controller to determine such question before assuming jurisdiction‑Order of Controller for deposit of arrears and rents and that of Additional District Judge striking off defence or failure of deposit, in circumstances, held, bad in law.

Mst. Karam Bibi v. Mir Muhammad Hassan and others P L D 1962 Quetta 67; Mehdi Hassan v. Ghulam Muhammad, etc. P L D 1964 Lah. 648; Muhammad Shafi v. Abdul Hayee P L D 1965 Lah. 681; Muhammad Rizwan v. Ashiq All P L D 1966 Quetta 11; Muhammad Amin v. Jamshed All P L D 1967 Lah. 856; Samma natha v. Selappa (1879) 2 Mad. 175; Giayana v. Kandasami (1887) 10 Mad. 375; Vidyapurna v. Vidyanidhi (1904) 27 Mad. 435; Vidya Varuthi Thirtha v. Balusami Ayyar 48 I A 302; Babalirao v, Laxmandas (1904) 28 Bom. 215; Ahmad Ali v. Rehabilitation Authority P L D 1964 S C 229 and Sabnis and others v. Shiyramdas and others A I R 1937 Bom. 374 ref.

Khalid M. Ishague with Rashiduddin for Appellant.

Ghulamali for A. K. Brohi and Ibadatyar Khan with Imamali G. Qazi for Respondent.

Dates of hearing; 22nd, 23rd April 21st and 29th May 1968.

This judgment will decide the following 12 Second Appeals under the West Pakistan Urban Rent Restriction Ordinance, 1959, in which, though the appellants are different, the respondent is one and the same person, i.e. Bawa Vashdevgir Sawai:

Second Appeal No. 191 of 1966 with Habibullah as appellant.

Second Appeal No. 192 of 1966 with Haji Roshan as appellant.

Second Appeal No. 193 of 1966 with Muhammad Ibrahim as appellant.

Second Appeal No. 194 of 1966 with Muneeruddin as appellant.

Second Appeal No. 195 of 1966 with Haji Yasin as appellant.

Second Appeal No. 196 of 1966 with Muhammad Ismail as appellant.

Second Appeal No. 197 of 1966 with Fazal Karim as appellant.

Second Appeal No. 198 of 1966 with Sadruddin as appellant.

Second Appeal No. 199 of 1966 with Sadruddin as appellant.

Second Appeal No. 200 of 1966 with Abdul Gafoor as appellant.

Second Appeal No. 201 of 1966 with Abdul Gani as appellant.

Second Appeal No. 202 of 1966 with Qamaruddin as appellant.

2. The dispute in these cases is with regard to the shops situated in Shahi Bazar, Station Road and other localities of the town of Shahdadpur. The various appellants are in occupation of these shops as tenants. Some time in 1965, the respondent instituted proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, for the eviction of the appellants from the said shops on the ground of default in payment of rent and subletting the shops. The respondent showed himself in these applications as owner of the shops and the appellants as his tenants. The appellants took common defence in these proceedings. They pleaded that in the year 1959, an announcement was made by the Custodian of Evacuee Property by beat of drums prohibiting the appellants to make payment of rent to the respondent and that on 29th March 1962, the Evacuee Trust Board also ordered these appellants to refrain from payment of rent to the respondent. In para graph 8 of their defence, the appellants referred to the order of the Controller in Rent Case No. 173 of 1963 between the respondent and one Yasin son of Allah Bakhsh, wherein it was held that the property, of which the respondent claimed to be the owner was in fact the property attached to a monastery of which the respondent was only a "Mahunt" and that he could not claim any personal interest in this property. On 30th November 1965, the Controller recorded the statements of the Advocate for the appellant as well as the respondent's Advocate in the cases from which the present appeals have arisen. The appellant's contention, as reproduced in this order, was that the shops from which the respondent sought the appellants' eviction were not the respondent's private properties but were properties attached to the monastery known as "Marhi Sawai Saheb" of which the respondent was "Gaddi Sarpoonj". Since the respondent had shown in the application for the appellants' eviction as owner of the shops, the appellant contended that the eviction proceedings could not be maintained as there was no relationship of landlord and tenant between the appellants and the respondent. The Controller, however, declined to determine this question as a preliminary issue and made the following order:

"Whatever be the position in that 'regard, the opponents have first to deposit rent under section 13 (6) and if it is found that the applicant had to file application in his capacity as Mahant' he will be called upon to amend his application accordingly."

The appellants were accordingly directed to deposit the arrears of rent as well as the accruing monthly rent of the shops in their occupation. The orders, however, were challenged in appeal by the appellants before the Additional District Judge, Sanghar, who stayed the operation of the proceedings pending before the Controller for the appellants' eviction. Later, however, by orders made on 26th April 1966, the Additional District Judge struck of the defence of all the appellants on the ground of their failure in making the deposit of arrears and rents as ordered by the Controller on, 30th November 1965. It is these orders which are under challenge by the appellants before me.

3. The main contention of the Appellants is that the Controller's orders, by which he directed the Appellants to make deposit of the arrears and rents are void as they were made without first determining the question of jurisdiction, i.e. whether there was relationship of landlord and tenant between the appellants and the respondent. The principle that in case where the relationship of landlord and tenant is denied, the Controller has first to determine the question as to the existence or otherwise of this relationship before assuming jurisdiction, is in no way now open to doubt. This Court has held in several cases that the Controller is not competent to make an order for deposit of arrears and rents without first determining the existence of relationship of landlord and tenant. Reference in this connection may be made to Mst. Karam Bibi v. Mir Muhammad Hassan and others (P L D 1962 Quetta 67), Mehdl Hassan v. Ghulam Muhammd, etc. (P L D 1964 Lah. 648), Muhammad Shaft v. Abdul Hayee (P L D 1965 Lah. 681), Muhammad Rizwan v. Ashiq Ali (P L D 1966 Quetta 1l) and Muhammad Amin v. Jamshed Ali (P L D 1967 Lah. 856).

4. Now the question is whether, in the present cases, the question of the existence of the relationship of Landlord and tenant was genuinely at issue between the parties before the Controller. The admitted position is that the respondent is the "Gaddi Sarpoonj" i.e. the head of the monas tery or "Math" known as "Marhi Sawai Saheb", he having succeeded the previous incumbent in this office. Prior to the institution of the eviction proceedings before the Controller from which these second appeals have come up before me, the respondent had for some time passed on receipts for rents in his capacity as "Gaddi Sarpoonj". But in the applications filed for the appellants' eviction before the Controller, the respondent described himself as owner of the shops in dispute; in other words, the respondent set up a personal title in himself to these properties. Before me also, both Mr. Ghulam Ali Memon and Mr. Imam Ali Kazi, the respondent's learned Advocates, vehemently insisted that the shops in question are the personal properties of the respondent, he having inherited these shops by virtue of having succeeded to his "Guru", the previous "Gaddi Sarpoonj". The further admitted position is that the monastery of "Marhi Sawai Saheb" is maintained out of the income of these and other properties, to which other properties also the respondent has made the claim of personal title in himself. It is also admitted that the monastery does not own any properties other than those which the respondent is claiming as his personal estate.

5. The question which falls for determination, therefore, is whether property attached to a Hindu Monastery is the personal property of the head of the monastery, i.e. whether the head of the monastery can be said to be the legal owner of this property, or the property vests in the monastery itself. Now, amongst the Hindus, when property is devoted to religious purposes, it may either be dedicated to an idol or to a monastery, which, amongst the Hindus, is called a "Math". Both the idol as well as the "Math" are juristic persons capable of owning properties. With regard to the "Math" for sometime the view was that in Hindu Law the "Mahunt" is the real owner of the properties dedicated to the "Math," See Sammanatha v. Selappa ((1879) 2 Mad. 175), Giayana v. Kandasami ((1887) 10 Mad. 375) and Vidyapurna v. Vidyanidhi ((1904) 27 Mad, 435). But this view was overruled by the judicial Committee of the privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar (48 I A 302) wherein it was held that both the image of a deity as well as the religious institutions (such as a 'Math" possess Juristic capacity and that the priest, i.e. Shebait or the head of the institution, is in possession of the property only as a manager or Custodian, and that though lie may be given the right to a part of the usufruct, in no case the property vests in him, and nor is he a "trustee" :n the English sense of the term, This view had also been taken by the High Court of Bombay in Babajirao v. Laxmandas ((1904) 28 Bom. 215) in which Henkins, C. J, observed that a "Math", like an idol, is, in Hindu Law, a Juristic person capable of acquiring, holding and vindicating legal rights, though of necessity it can only act in relation tit those right through the, medium of some human agency. With regard to the pewee of the heed of a "'Math" to institute legal proceedings, it was observed that in this connection there are two classes of suits, those in which the manager seeks to enforce his private and personal rights and those in which he seeks to vindicate the rights of the "Math" and that the rights of the "Math" cannot be ordinarily prejudiced by the result of a suit brought by the heal of the "Math" Ch enforce his private and personal rights. Their Lordships of the Supreme Court of Pakistan have also taken cite same view in Ahmad Ali v. Rehabilitation Authority (P L D 1964 S C 229). In this case, Kaikaus, J. observed that the "Mahunt" is in no sense the owner of the property and that the property belongs to the institution of which lie is the "Gaddi Nashin". According to his Lordship, the position of the "Mahunt" is similar to that of "Mutawalli" in Muslim Law, or a Shebait in Hindu Law and that though the "Mahunt's" office carries with it the right of Management and sometimes even the right of alienation of property, yet he has no interest in the property.

6. The respondent's learned Advocate attempted to argue that the head of a Hindu "Math" should be treated as "trustee" in the English sense of this term, so that like the trustee, the read of the ",Math" also is the legal owner of the 'Math' Out this view hays been rejected by the Judicial Committee and the Supreme Court in the cases referred to above, i.e Vidya Viruthi Thirtha v. Balusami Ayyar, Ahmad Ali v. Rehabilitation Authority and by Jenkins, C. J. In the Bombay case of Bobajirao v. Laxmandas. Another relevant decision' in this connection is that of Sabnis and other. v. Shiveramdas and others (A I R 1937 Bom. 374) in which, the view taken was that mere manage ment of property does not stake the manager n trustee in law, i.e. that tile property does not vest in him as legal owner, though the obligations of the manager with regard to tile management of the property do have similarities with the position of a trustee.

7. Turning to the present sale, it has been pointed out above that in the application trade to the Controller for the appellants' eviction from the shops in question, the respondent described himself as owner of these properties. Before me also, the respondent's learned Advocates consistently insisted that these properties, though attached to the "Math" or a monastery, should be treated as personal properties of the respondent who, according to the learned Advocates, is in fact the legal owner of the properties. But the appellants' contention before the Controller was that the properties vest in the "Math" known as "Marhi Sawai Saheb", and the respondent has only power to manage and administer these properties. According to the rule laid down in the decisions referred to above the question for determination was whether the respondent was the legal owner of the properties or whether 'the properties are actually owned by the "Math" and whether payment of rents of these properties to tire respondent as legal owner, would not have the effect of discharging the obligations of the appellants of paying rents to the "Math", if the properties were actually owned by the "Math" itself: In this view of the matter, there wag a substantial question on which the parties were at issue before the Controller, the question being whether the "Math" known as "Marhi Sawai Saheb", or the respondent himself, is the legal owner of the shops in the 'appellants' occupation. This question raised a further issue: Whether there was any existing relationship of landlord and tenant between the appellants on one hand, and the respondent on the other as legal owner of the said shops. According to the view taken by this Court in several decisions cited above, it was incumbent on the Controller to first determine these points before assuming jurisdiction under the West Pakistan Urban Rent Restriction Ordinance, 1959; and before directing the appellants to deposit the arrears and rents under section 13 (6) of the Ordinance. Since the Controller failed to determine these points, his order for deposit of arrears and rents is invalid, and consequently the lower Appellate Tribunal was not competent to strike of the appellants' defence for failure to comply with this order.

8. The result of the foregoing discussion is that the orders of the Controller made on 30th November 1965 directing the appellants to deposit arrears and rents under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, as well as the orders of the Additional District Judge by which the appellants' defence was struck off for failure to comply with these orders, are bad in law. I would, therefore, set aside these orders and direct that the cases should go back to the Controller for proceeding with the respondent's application for eviction after determining the following preliminary issues:

(1) Whether the disputed shops are the properties of the respondent or that of the "Math" known as "Marhi Sawai Saheb"

(2) Whether the relationship of landlord and tenant is between the appellants and the respondent, or it is between the appellants and the said "Math" and

(3) Whether, if the said properties vest in the "Math", the respondent is competent to take proceedings for the appellants' eviction from the disputed shops as owner thereof, and if not, whether the applications for evictions, front which these second appeals have come up to the High Court, are maintainable

9. With these directions, the 12 second appeals are accepted and the respondent is directed to pay the appellants costs here and in the Tribunals below.

A. E. Appeals accepted.

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