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Civil Revision Petition No. 70 of 1955 under section 44 of Act 9 of 1919, for revision of the order of Muhammad Ishfaq Ali, Civil judge, 1^st Class, Lahore, dated the 3rd February,1955.

S. 116‑Tenant bound to pay rent to landlord even if latter is not in fact the owner of pro perty the subject of tenancy.

If the agreement of tenancy be admitted and it be admitted further that the tenant was put in possession, he would be bound to pay rent to the plaintiff irrespective of whether the plaintiff was or was not the owner of the property. Under section 116 of the Evidence Act no tenant is entitled during the continuancy of the tenancy to deny the title of the landlord.

S. 34‑Suit between landlord and tenant‑‑Tenant's plea that property is evacuee‑Custodian's finding in other proceedings to which tenant was not a party that property was not evacuee‑Finding conclusive for purposes of suit until set aside on review‑Suit need not be stayed.

In a suit between landlord and tenant it is open to a defend ant to raise a plea that the property is evacuee property and as he is liable to pay to the Custodian, he is not liable to pay rent to the plaintiff.

Nevertheless an order passed by the Custodian though it is not "' judgment in rem and though it would not bind anybody who is not a party to the proceedings, it does bind the Custodian himself and in this case was conclusive of tile non‑evacue nature of the property.

Till it was actually reviewed the order was valid and binding and prevented a plea as to the property being evacuee.

In cases of just ter ti no person is allowed to plead the right of another when his opponent has got a decree against that other. Every person is bound by the estoppels which affect the person whose right he pleads.

Malik Muhammad Akrarn, for Petitioner.

Inayat Ullah Khan, for Respondent.

--‑This revision petition arises in the circumstances that follow. The Dayal Singh College Trust Society filed suit against S. A. Waheed the petitioner before me, for recovery of Rs. 4,296‑12‑3 as arrears of rent of shop No. 15 in Dayal Singh Mansion, the Mall, Lahore. The petitioner raised the plea that the shop was evacuee property and prayed that the suit be staved under section 34 of the Pakistan (Administra tion of Evacuee Property) Ordinance (XV of 1949) so that the question as to whether the shop was evacuee property may be decided by the Custodian. The respondent placed on the record an order by the Custodian dated the 1st of September, 1951 holding that the Trust was not an evacuee and its property was not evacuee property. On account of this order the Court refused to stay the proceedings. This is a revision petition filed by S. A. Waheed praying that the order be set aside and the suit be stayed.

It is urged, in the first place, by learned counsel for the petitioner that the order by the Custodian binds only the parties to the proceedings and as the present petitioner was not a party to the proceedings in which the order of the Custodian was passed, he is not bound by it and thus the mattes has to be decided by the Custodian afresh. He urges in the second place, that, in any case, that order only establishes the status of the Trust on the date on which it was passed and it does not debar him from showing that since the date of the order the respondent has become an evacuee. On behalf of the respondent it is urged that apart from the fact that the status of the respondent has already been decided, the question as to whether this property is evacuee or not does not arise because this is a suit between a landlord and a tenant on the basis of an agreement of tenancy.

The contention raised by the respondent has to be decided first. Before I deal with it, I would quote section 34 of the Pakistan (Administration of Evacuee Property) Ordinance. It runs :‑

34. Jurisdiction of Courts barred.‑(1) Save as expressly provided in this Ordinance, no Civil or Revenue Court or any other authority shall have jurisdiction‑

(a) to entertain or adjudicate upon any question arising jn, any suit,, appeal,, application, or other proceedings as to whether any person is or is not intending evacuee or whether any property is or is not evacuee property, or what right or interest, if any, an evacuee has in any such property.

(b) to question the legality of anything done under this Ordinance by or at the instance of the Custodian, or

(c) in respect of any matter which the Custodian is .empowered by or under this Ordinance to determine.

(2) Whenever any question such as is referred to in clause (a) of subsection (1) arises in any Civil or Revenue Court or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive.

(3) No decision of any Court or other authority on any question such as is referred to in clause (a) of subsection (1) given between the fourteenth day of August, 1947, and the commencement of this Ordinance, shall be binding on the Custodian, or affect any right or interest of any evacuee in any property affected by such decision.

(4) No Court or other authority shall be competent to grant an injunction or other order in relation to any pro ceeding before the Custodian under this Ordinance or anything done or intended to be done by or at the instance of the Custodian under this Ordinance.

(5) No Court or other authority shall be competent to grant relief against extinguishment, forfeiture or penalty to a person whose right to any immovable property is or has been extinguished or forfeited in accordance with the terms and conditions of any agreement or grant relating to such property and who at the time of the extinguishment or forfeiture of such right is or was an evacuee.

(6) Nothing in the foregoing subsections shall prevent the adjudication by a Civil Court of a dispute between evacuee relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval."

According to this section the question as to the evacuee nature of the property has to be referred to the Custodian if it arises in a suit or other proceeding. Can it be said that the question as to whether the shop is an evacuee property has arisen in this suit A question with respect to a particular matter arises between the parties to a suit if .its determination one way or the other can affect the decision of the suit. There are at the same time some rules of law relating to pleadings and proof in Court and it is possible that the raising of a plea the decision on which will affect the merits may be forbidden by some rule relating to the Procedure of Court. The question can, therefore be said to arise if (a) the matter is one a decision on which will ultimately affect the order to be passed and (b) there is no rule of law debarring a party from pleading or proving that matter. As an illustra tion of (b) one might refer to the rules relating to inconsistent pleas, res‑judicata and estoppel.

Will the decision of the question as to whether this pro perty is evacuee property affect the ultimate decision of the suit The suit is bassed on an agreement of tenancy. Ordinarily the question as to whether the property bassed does not belong to the landlord would be irrelevant in a suit filed by a landlord against his tenant for the recovery of rent. If the agreement of tenancy be admitted and it be admitted further that the tenant was put in possession, he would be bound to pay rent to the plaintiff irrespective of whether the plaintiff was or was not the owner of the property. Under section 116 of the Evidence Act no tenant is entitled during the continuancy of the tenancy to deny the title of the land lord. If, therefore, the present case was not one of evacuee property and the tenant asserted the title of some person other than the plaintiff, he would be debarred from doing so. Learned counsel for the petitioner urges, however, and with force that it does make a difference in a case where the defendant takes a plea as to the property being evacuee. Under section 7 of the Pakistan (Administration of Evacuee Property) Ordinance, all persons in possession of evacuee property are deemed to hold it on behalf of the Custodian. Under section 11 of the same Ordinance, any sum which is payable in respect of evacuee property is to be paid to the Custodian. It might have been possible to get over section 7 but it seems to me that 'section 11 does create a difficulty. In the present case the plea of the defendant may not be bona, fide but I have to consider apart from the bona fides of the plea of the petitioner, whether a plea based on section 11 of the Pakistan (Administration of Evacuee Property) Ordinance is not open to a tenant. If under section 11 he is bound to pay the money that is due in respect of evacuee property to the Custodian, he would have a right to raise this plea when any person other than the Custodian files a suit for it cannot be the intention of the law that he should pay twice. This interpretation may open the door to frivolous pleas being raised in order to delay suits but that cannot be helped. We cannot, unless the matter is gone into, hold that the plea is mala fide. It appears to me, therefore, that it is open to a defendant to raise a plea that the property is evacuee property) acid as he is liable to pay to the Custodian, he is not liable to pay rent to the plaintiff. There is one proviso however, which I would add. The plaintiff in a suit for rent can agree that the money realised from the defendant in execution of the decree be not paid to him at all till the question of the evacuee nature of the property is decided. Then it should not be necessary to decide the question of the evacuee nature of the property for in such a case the decision of this question cannot affect the ultimate order to be passed and therefore the question cannot be said to arise. There will be no apprehension in such a case that the tenant may be made to pay twice. I hold that on the plea raised by the defendant, the question as to whether the shop in question is evacuee property does arise.

It is next to be considered whether there is already a Standing decision on the question which debars its being raised by the defendant. I have already referred to the two contentions of learned counsel for the petitioner in respect of the order of the Custodian. The first is that it is not a judgment in rem and does not bind the defendant. On a consideration of the provisions of the Pakistan (Administration of Evacuee Property) Ordinance, I have reached the conclusion that though an order passed by the Custodian is not a judgment in rem and it would not bind anybody who is not a party to the G proceedings, it does bind the Custodian himself and is conclusive of the non‑evacuee nature of the property. The position of a Custodian with respect to evacuee property is peculiar. He is a party to a proceeding in respect of evacuee property as well as the judge. He has himself to decide whether the property vests in him or not. He does not give a decision between the parties. Section 18 of the Ordinance provides that any person who is interested in any property which is treated by the Custodian or a Rehabilitation Authority as evacuee property may present a claim to the Custodian To these proceedings, no other person need be made a party. The Custodian may accept or reject the claim. If the claim is accepted, the Custodian or Rehabilitation Authority will no longer treat the property as evacuee, and the property would stand released. This order may not bind a third party inasmuch as it does not conclusively decide the question as to whether the claimant is entitled to the property but it does decide that the property does not vest in the Custodian and to that extent it is conclusive. There is no doubt that there is no express provision in the Ordinance saying that such a decision shall be conclusive as to the nature of the property but that should be apparent from the scheme of the Ordinance. Section 34 which I have quoted does say that the decision given by the Custodian shall be conclusive. There is no reason, however, to suppose that whereas a decision given by the Custodian on a reference by the Court is conclusive, a decision given by him otherwise does not stand on the same footing. This is because the decision hinds the Custodian himself and the Custodian is the person really interested in respect of evacuee property.

I may here refer to the general principle accepted in cases of just ter ti that no person is allowed to plead the right of another when his opponent has got a decree against that other. Every person is bound by the estoppels which affect the person whose right he pleads. The defendant is now pleading only the right of the Custodian. He cannot do so in a case where there is an estoppel against the Custodian. The Custodian himself could not, unless he revised his previous order, plead that the property is evacuee property.

In this view of the matter there is at present a binding decision of the Custodian with respect to the nature of the property.

As regards the second contention of the learned counsel for the petitioner that since the date of the order the respondent has become an evacuee, it is sufficient to say that it would be open to the petitioner in case the Custodian sees fit to review his previous order, to apply to the Court for stay of proceed ings, but till that order is reviewed, the present suit should not be stayed. If one were to give effect to a plea that since the date of the order by the Custodian the party concerned had become evacuee, it would be impossible to proceed with suits. Ordinarily if a party relies on a change of status he should first approach the Custodian and get a decision. Of course there may be cases where, on account of a change in the definition of evacuee property or events happening after the order there are grounds for believing that the party concerned has become evacuee since the order was passed. If such grounds appear the Court ought to stay proceedings. However it is for the Court to decide in each case whether the plea is bona fide or is put forward only to delay proceedings. In the present case there is nothing to show that the status of the respondent has changed since the date of the order. I may point out that the suit is not to be stayed if the plea of the defendant simply be that the order passed by the Custodian was wrong and was liable to be reviewed. Till it is actually reviewed the order is valid and binding and prevents a plea as to the property being evacuee.

This revision petition .is dismissed with costs.

A. H. Petition dismissed.

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