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Civil Appeal No. 34 of 1974, decided on 7th June 1976.

(On appeal from the judgment and order of the Lahore High Court, 'Bahawalpur Circuit, Baghdadul Jadid, dated the 28th June 1973, in R. S. A. No. 10 of 1970/BWP.).

Ss. 6‑A & 6‑B read with Transfer of Property Act (IV of 1882), Ss. 105, 106‑B(j) & 116‑Sub‑lessee‑Ejectment‑Plaintiffs in occu pation of tharas with permission of lessees, such lessees holding under previous management of waqf on year to year basis‑Auqaf department when established receiving rents from plaintiffs and describing them in their notices as kirayadars‑Held : Plaintiffs could not in circumstances be held to have unauthorisedly entered upon tharas within meaning of S. 6‑A so as to enable respondent to throw them out summarily‑No breach of conditions of lease or tenancy having been alleged, S. 6‑B also not applicable‑Plaintiffs entitled to continue as sub‑lessees until evicted in due course of law.

Sh. Ghias Muhammad, Senior Advocate Supreme Court instructed by Noor Ahmad Noori, Advocate‑on‑Record for Appellants.

Raja Said Akbar, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Respondent No. 1.

Respondents Nos. 2 to 4. 1 Ex parte.

Dates of hearing : 21st and 24th May 1976.

.‑The appeal by special leave of this Court is from an order of a learned Single Judge of the Lahore High Court, Bahawalpur Circuit, dismissing the Second Appeal preferred by the appellants.

2. The appellants claim to be the tenants in respect of various tharas (platforms) which belong to certain Waqf Properties attached to Musjidul Saadia, situated in Chowk Bazar, Bahawalpur. They constructed khokhas (temporary structures) on them, and have been carrying on business of sale of cloth etc. there long before the waqf property was taken over by the Chief Administrator of Auqaf (respondent No. 1 herein) under the provi sions of West Pakistan Waqf Properties Ordinance, 1961 (hereinafter referred to as the Ordinance). The appellants originally paid rents for the tharas to the then management of the Mosque, and since the waqf property ‑had been taken over, they paid rents to the Auqaf Department. The waqf property was taken over sometime in the year 1965.

3. On the 12th January, 1966, the Manager, Auqaf Department, issued ,notices to the appellants and respondents Nos. 2 to 4 asking them to vacate the tharas under their possession failing which they were threatened with forcible, eviction. The appellants filed a civil suit in the Court of the Administrative Civil Judge, Bahawalpur, and challenged the validity of the said notices and asked for a declaration that the plaintiffs were tenants in respect of the said tharas and as such were not liable to be ejected summarily inasmuch, as they bad not committed any breach of conditions of tenancy under section 6‑B of the Ordinance.

The Chief Administrator, Waqf Properties, Lahore, respondent No. I herein, contested the suit and denied that the plaintiffs were tenants under the Auqaf Department. He alleged that the tharas in dispute were given to the plaintiffs by Muhammad Qasim, the lease‑holder, and that the plaintiffs were no better than licensees.

5. The trial Judge declared that the notices/orders dated the 12th January, 1966 of the Administrator of Waqf Properties were against law and without jurisdiction and, he was restrained from evicting the plaintiffs from the tharas in dispute until they had been proceeded against in accordance with law under section 6‑A of the Ordinance. The prayer of the plaintiffs for a declaration that they were tenants in respect of the tharas was not granted.

6. The learned District Judge, Bahawalpur, and the High Court. dismissed the first and second appeal respectively preferred by the plaintiffs.

7. It appears that the predecessors of the plaintiffs were Mir Abdul Ali and Muhammad Qasim, both of whom were lessees of the tharas in dispute before the Auqaf Department stepped in. Muhammad Qasim came in after the expiration of the lease of Mir Abdul Ali. Muhammad' Qasim's lease expired on 31‑12‑1965. Admittedly the tharas were given to, the plaintiffs by their said predecessors, and the Auqaf Department accepted rents from the plaintiffs as evidenced by the receipts Exhs. P. 1 to P. 42.. Until the waqf was taken over the plaintiffs claimed they paid rents to their predecessors.

8. The learned trial Judge found that Exhs. P. 4 to P. 42 related to the period from January, 1966 onward, and they showed that the Auqaf Department duly accepted the rents from the plaintiffs.

9. The learned District Judge also arrived at the finding that the plaintiffs got possession from the aforesaid lessees. The impugned notices appear at p. 49 of the paper‑book and the plaintiffs have been described therein as Kirayadar" and they were asked to pay rents within fourteen, days of the receipt of the notices.

10. The learned Single Judge of the High Court, inter alia, mentioned the following undisputed facts:‑

(a) Abdul Ali and Muhammad Qasim were the lessees under the previous management of the waqf on the basis of contract from year to year;

(b) Plaintiffs were in occupation of the tharas with the permission of the aforesaid two lessees;

(c) After the respondent No. 1 took over the management the Auqaf Department has been receiving rents, if not from all at least from the majority of the occupants; and

(d) In the notices Exhs. P. 43 to P. 48, issued by the Auqaf Department the plaintiffs were described as Kirayadar".

11. In spite of all these, however, the three Courts including the High Court found that the plaintiffs were no better than mere licensees whose right to continue in occupation of the disputed tharas ceased at the expiration of the lease of the last lease‑holder, Muhammad Quasam on 31‑12‑1965. Apparently none of the Courts was conscious of the provisions of the Transfer of Property Act, 1882 (hereinafter called the Act), which it has been conceded on behalf of the respondent, applied to Bahawalpur.

12. 'Lease' has been defined under section 105 of the Act to mean:‑‑

" Section 105.‑A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepted the transfer on such terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."

Under section 108‑B(j) of the Act in the absence of a contract or local usage to the contrary, a lessee can transfer by way of sub‑lease. There is nothing in the present case to show that there was any contract or usage to the contrary. Section of the Act provides as follows:‑

"Section 116.‑If a lessee or under‑lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee, or otherwise to his continuing in possession, the lease is, in the absence of as agreement to the contrary, renewed from year to year, or front month to month, according to the purpose for which the property is leased, as specified in section 106.

Illustration (a).‑A lets a house to B for five years. B underlets the House to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the House and pays the rent to A. C's lease is renewed from month to month."

Under this section in the facts and circumstances mentioned above the plaintiffs undoubtedly were entitled to continue as sub‑lessees until evicted in due course of law. Omission to consider these provisions materially affected the findings of those Courts albeit concurrent and they lost their sanctity. The Courts fell into a grave error by failing to take notice of the said provisions. These provisions have not been affected in any way by the Ordinance. The admitted and undisputed facts mentioned above unerringly led to the conclusion that the plaintiffs were sub‑lessees under the waqf.

13. In any event by no stretch of imagination the plaintiffs could be held to have unauthorisedly entered upon the tharas in dispute within the meaning of section 6‑A of the Ordinance, so as to enable the respondent to throw them out in a summary manner thereunder. It is pertinent to mention here that earlier while granting an interim stay order in favour of the plaintiffs, the learned District Judge had observed that the entry of the Plaintiffs in the tharas was very much lawful and admittedly continued to be so till 31‑12‑1965.

14. Section 6‑B of the Ordinance is also not applicable inasmuch as no breach of the conditions of the lease or tenancy has been alleged.

Rule 7 of the Rules framed under the Ordinance also does not help the respondent inasmuch as it applies to a Scheme that has first to be approved in the prescribed manner. No such scheme appears to have been approved and it was not produced before us. Besides the rule applies to a lease freshly entered into with the Auqaf Department after it had taken over the waqf property. Furthermore, Rule 7 (3) itself prescribes that after the publica tion of the notification under section 6 of the Ordinance, a notice, may issue requiring the occupants within 7 days of the receipt of the notice to deliver vacant possession or execute a lease deed in favour of the Chief Administrator. Such a notice was never given in the present case. Rule 7 (2) has also no application even if it be assumed that the lease was made after the 4th November, 1961. The one month's notice contemplated under this sub rule was, too, never given.

15. I would accordingly allow the appeal but without any order as to costs. The order of the trial Court declaring the orders/notices dated the 12th January, 1966 as illegal is maintained. The finding that the appellants are licensees is set aside.

Respondent No. 1, however, is at liberty to proceed against the occupants of the tharas in dispute according to law, if so advised.

S. A. H. Appeal accepted.

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